Court File and Parties

Court File No.: 62/14 Date: 2016-06-22 Superior Court of Justice - Ontario

Re: Cheryl Marlene Ashton, Plaintiff And: Albert E. Smelko, B.A., LL.B., Defendant

Before: The Honourable Mr. Justice D.J. Gordon

Counsel: Cheryl Marlene Ashton, Appearing in Person John G. Webster, Counsel for the Defendant

Supplementary Endorsement re: Costs

[1] On May 4, 2016 I delivered oral reasons for granting the defendant’s summary judgment motion and dismissing the plaintiff’s claim. Simply put, Ms. Ashton relied on section 7, Limitations Act, for her delay in commencing this action; however, despite numerous adjournments, she failed to present evidence to meet the requisite test. I directed written submissions on the issue of costs.

[2] On behalf of Mr. Smelko, Mr. Webster seeks a partial indemnity cost award of $21,500, inclusive of disbursements and HST, for the motion and action.

[3] Ms. Ashton opposes any cost award for the following reasons: (a) her dire financial circumstances; (b) the cost claim is excessive; and (c) the defendant should have professional malpractice insurance.

[4] Mr. Smelko is a lawyer. Malpractice insurance is not relevant on the issue of costs.

[5] In my review of Mr. Webster’s time dockets it appears some items are recorded as taking longer than appropriate. However, not all time is claimed. The actual fees, even on a partial indemnity basis, are said to exceed $30,000. The issues in this action were of moderate complexity, less so on the motion as Ms. Ashton neglected to tender the required evidence. The matter was of considerable importance to the parties, namely allegations of solicitor’s negligence. On my review, the reasonable fees and disbursements claimed are most reasonable.

[6] The only argument presented by Ms. Ashton that is worthy of consideration is her claim of, in essence, impecuniosity. Ms. Ashton has part-time employment and receives public assistance. I assume she has few assets. There is no mention of any debt. Nevertheless, I accept that Ms. Ashton does lack the financial resources to pay a significant cost award.

[7] Ms. Ashton was unsuccessful in this action. A cost award is necessary. I am satisfied Mr. Webster has already substantially discounted his cost claim. I am reluctant to reduce it further, particularly when there were numerous adjournments granted to allow Ms. Ashton to present evidence. She must accept the responsibility for not being prepared to respond to the motion.

[8] In all of the circumstances, I conclude a fair and reasonable cost award is $18,000, inclusive of disbursements and HST, payable by the plaintiff within 30 days. I so order.

D.J. Gordon J. Date: June 22, 2016