Unegbu v. WFG Securities of Canada Inc., et al, 2016 ONSC 761
CITATION: Unegbu v. WFG Securities of Canada Inc., et al, 2016 ONSC 761
COURT FILE NO.: CV-12-443750
DATE: 20160201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HOPE UNEGBU Plaintiff
– and –
WFG Securities of Canada Inc., Eniola Agbi and Sanni Adada Defendants
C. Nwobele, for the Plaintiff
R. Szymanski, for the WFG Securities and Eniola Agbi J. Oladejo, for Sanni Adada
s.a.Q. akhtar j.
[1] Ms. Unegbu commenced proceedings against the defendants for negligence, misrepresentation, breach of fiduciary duty and deceit based on representations made that induced her to participate in an investment scheme that ultimately failed to deliver and caused her financial loss.
[2] In response, the defendants brought a summary judgment motion to dismiss Ms. Unegbu’s action on the ground that it was commenced after the expiry of the statutory limitation period. I agreed with the defendants’ argument and dismissed Ms. Unegbu’s action. The defendants now seek costs of the proceedings.
[3] The defendants ask for an award of partial indemnity costs in the amount of $22,806.35. They submit that their motion was avoidable and should have been settled at the discovery stage when it became clear that their limitation period defence would succeed. To that end, they offered to resolve the matter for the sum of $5000, failing which, they warned, that a summary judgment motion would be forthcoming. Counsel also relies upon the fact that both parties appeared to be ad idem on the issue of whether the plaintiff had knowledge of her damages more than two years before the commencement of the action. The defendants took steps to obtain formal agreement on the issue so that the hearing could concentrate on the sole issue relating to when the plaintiff knew or ought to have known of her cause of action. Their suggestion was declined.
[4] The plaintiff, previously represented at the hearing, but now self represented, submits that she is unable to pay any costs and due to the debts accrued because of her financial dealings. She requests that no costs order be made due to the losses incurred as a result of her dealings with the defendants.
[5] Rule 57.01 of the Rule of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides a list of factors that must be taken into account when deciding the issue of costs. I accept that in this case, the defendants, as the successful party, are entitled to costs and whilst I also have some sympathy with respect to the financial straits in which the plaintiff finds herself, our system is one in which the losing party reimburses the succesful party. I note that Rule 57.01(1)(a) directs the court to consider the amount of costs that an unsuccessful party could reasonably be expected to pay as well, the complexity of the proceedings and, significantly in this case, a party’s denial of or refusal to admit anything that should have been admitted.
[6] The overarching principle in awarding costs, however is that of reasonableness and fairness.
[7] Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario), 2004 ONCA 14579, (2004), 71 O.R. (3d) 291, at paras 26, 37.
[8] I have reviewed the costs outline of the defendants and, bearing in mind the nature of the issue, the fact that discoveries took place prior to the hearing and the fact that the defendants made an offer, (albeit one that did not engage the provisions of Rule 49 of the Rules) in addition to the Rule 57.01 factors, I conclude that costs should be fixed in the amount of $18,000, all inclusive to be paid within 30 days.
S.A.Q. Akhtar J.
Released: 1 February 2016
CITATION: Unegbu v. WFG Securities of Canada Inc., et al, 2016 ONSC 761
COURT FILE NO.: CV-12-443750
DATE: 20160201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HOPE UNEGBU Plaintiff
– and –
WFG Securities of Canada Inc., Eniola Agbi and Sanni Adada Defendants
COSTS JUDGMENT
S.A.Q. Akhtar J.