ONTARIO SUPERIOR COURT OF JUSTICE
CITATION: Gray v. Brathwaite, 2017 ONSC 2692
COURT FILE NO.: CV-11-00437115-0000
DATE: 20170501
BETWEEN:
ROSE ELIZABETH GRAY
Plaintiff
– and –
DAVID BRATHWAITE and 1492569 ONTARIO INC. and DAAB VENTURES INC. c.o.b. as CHESSWOOD TRANSMISSION DRIVELINE SPECIALISTS
Defendants
COUNSEL:
Sidney Klotz and Jennifer Klotz for the Plaintiff
Blair Bowen for the Defendants
HEARD: Written Submissions
COSTS ENDORSEMENT
DIAMOND J.:
[1] At the conclusion of my Reasons for Judgment released on March 20, 2017, I suggested that the parties try and resolve the issue of the costs of this proceeding. They were unable to do so, and pursuant to the terms of a fixed schedule I have now received and reviewed the parties’ respective costs submissions.
[2] The defendants seeks their costs of the proceeding on a partial indemnity basis in the amount of $69,195.59 inclusive of disbursements and H.S.T. The plaintiff submits that even though her action was dismissed, she was nevertheless successful in her claim that she and David were indeed in a joint family venture, a result at trial which “vindicates” her. The plaintiff also argues that she should be entitled to her costs of the proceeding due to the defendants’ stonewalling, bad faith and breach of an undertaking when the Wilson property was mortgaged in the face of a “standstill agreement”.
[3] As held in Piskor v. Piskor, 2004 5023 (ONSC), bad faith is not simply “bad judgment or negligence but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity…it contemplates a state of mind affirmatively operating with furtive design or ill will.”
[4] Ironically, the plaintiff cites several family law decisions in support of her argument that the defendants (primarily David) acted in bad faith by failing to make complete and full disclosure in this proceeding. All of these cases relied upon by the plaintiff make reference to Rule 24(8) of the Family Law Rules which directs the Court to award costs on a full recovery basis against a party who has acted in bad faith.
[5] I repeat what I stated at paragraph 6 of my Reasons for Judgment
“Unfortunately, this action was never commenced as or converted into a Family proceeding. This action was issued and remained on the Civil list. It practically goes without saying that the plaintiff’s joint family venture claim would have obviously and greatly benefited from being prosecuted and tried on the Family list. As this did not happen, the Family Law Rules did not govern this proceeding, and none of the corresponding expansive financial disclosure obligations upon both parties (over and above those prescribed by the Rules of Civil Procedure) applied.”
[6] The plaintiff’s reliance upon Rule 24(8) is, once again, misguided. This is and remains a civil proceeding, and the Court is to consider and apply the governing principles in Rule 57.01(1) of the Rules of Civil Procedure.
[7] There were no offers to settle which would engage Rule 49.10 of the Rules of Civil Procedure.
[8] Costs normally follow the event, and while I see no reason to depart from that standard rule, in my view success in this proceeding was somewhat divided. That said, the plaintiff was successful on two of the four issues raised at trial, I do believe the defendants were slightly more successful than the plaintiff and thus deserving of reimbursement of some of their costs.
[9] No doubt the issues were very important for both parties, and once the plaintiff obtained leave to amend and pursue her claim for a joint family venture, the proceeding was of average to high complexity. However, I find that David’s refusal to admit certain facts which ought to have been admitted, coupled with his decision to mortgage the Wilson property during this proceeding and in the face of what appeared to be a standstill agreement reached between the parties to avoid the plaintiff’s injunction motion, ought to result in a reduced costs award.
[10] While the defendants’ counterclaim was also dismissed, virtually no time was spent on its pursuit at trial as found in paragraph 90 of my Reasons for Judgment.
[11] In addition, while the hours and rates charged by counsel for the defendants appear to be mostly reasonable, it is unclear whether the defendants’ Bill of Costs includes or excludes time spent preparing for the original trial attendance from June 20-22, 2016, which attendance already resulted in a costs award in favour of the defendants in the amount of $24,000.00.
[12] As mandated by the Court of Appeal for Ontario in Boucher v. Public Accountants Council (Ontario) (2004) 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), I am always mindful of my obligation to consider what is “fair and reasonable” in fixing costs with a view to balancing compensation of the successful party with the overall goal of fostering access to justice.
[13] In the circumstances, and having regard to the results achieved, the reasonable expectations of the parties, and the conduct of David set out above, I order the plaintiff to pay the defendants their costs of this proceeding fixed on a partial indemnity basis in the all-inclusive amount of $30,000.00.
Diamond J.
Released: May 1, 2017
CITATION: Gray v. Brathwaite, 2017 ONSC 2692
COURT FILE NO.: CV-11-00437115-0000
DATE: 20170501
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROSE ELIZABETH GRAY
Plaintiff
– and –
DAVID BRATHWAITE and 1492569 ONTARIO INC., and DAAB VENTURES INC., c.o.b. as CHESSWOOD TRANSMISSION DRIVELINE SPECIALISTS
Defendants
COSTS ENDORSEMENT
Diamond J.
Released: May 1, 2017