COURT FILE NO.: CV-16-5569-00 DATE: 2017 05 08
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MIRNA NAVARRO and MARIA HERNANDEZ VILLAFANA - and – ROSA ISELA PEREZ MARTINEZ
BEFORE: LEMAY J.
COUNSEL: R. Martin, Counsel for the Plaintiff J. Macdonald, Counsel for the Respondent
COSTS ENDORSEMENT
[1] This was a motion brought by the Defendant to set aside an ex-parte motion granting an injunction and a Certificate of Pending Litigation to the Plaintiffs. The Defendant was entirely successful in her motion and I am now required to fix costs.
[2] At the hearing of the motion, I asked the parties to file their costs outline. The Plaintiff filed a costs outline that showed total costs of $3,400.00. The Defendant, on the other hand, filed a costs outline claiming $15,081.31. There was no detail associated with either of these outlines. I will return to their significance below.
Positions of the Parties
[3] The Defendant seeks costs in the sum of $12,943.07 inclusive of HST and disbursements for the following reasons:
a) The relief sought by the Plaintiffs through this motion was draconian. b) The Plaintiffs were unsuccessful in the motion. c) The Plaintiffs should have known that the costs associated with this motion would be significant.
[4] The Plaintiffs argue that there should not be any costs payable in this case in essence because the injunction sought by the Plaintiff on an ex-parte basis was necessary to protect the Plaintiffs’ interests. In addition, the Plaintiffs argue that the injunctive relief was originally granted because the Plaintiffs’ interests had been harmed. Finally, the Plaintiffs argue that they provided a reasonable offer to settle in this case.
Analysis
[5] The principles for assessing costs are set out in Rule 57.01 of the Rules of Civil Procedure. In this case, the key principle is that costs should be awarded to the successful litigant. I see no basis for departing from that principle.
[6] In particular, I reject the Plaintiffs’ arguments that the injunction was necessary, and was granted to protect their rights. In my view, when both sides were present in Court there was no basis for the injunction. Further, even if the injunction and CPL were necessary when they were originally granted, there was no basis for continuing either of them when the matter came back before me. As a result, the Defendant was successful and should be entitled to her costs.
[7] This brings me to the Plaintiffs’ offer to settle. They were not as successful as their offer to settle, as they had requested that the Certificate of Pending Litigation remain on the property. My decision resulted in the CPL being removed from the property. As a result, this offer does not assist the Plaintiffs in establishing that the costs award should be reduced.
[8] The only question that remains is whether the costs sought by the Plaintiff are reasonable. In my view, they are not. This was a relatively straightforward motion. Both the factual and legal materials were relatively standard. In my view, costs of $12,943.07 are excessive for a motion such as this which required substantially less than an hour to argue. This is particularly true when the bills of costs filed by the parties are considered. The Plaintiffs’ bill of costs seeks less than $5,000.00. I am of the view that costs in the range of $7,500.00 inclusive of HST and disbursements are more appropriate than the amount sought by the Defendant.
[9] Finally, I note the Plaintiffs’ position that they have relatively limited resources. I have considered that fact, but I am of the view that this is not a factor that should be given significant weight in this case. The Plaintiffs adopted an aggressive approach to this litigation, and the Defendant should be compensated accordingly.
Disposition
[10] For the foregoing reasons, I am Ordering the Plaintiffs to pay $7,500.00 inclusive of HST and disbursements to the Defendant within thirty (30) days of the issuance of this endorsement.
[11] I also note that the Defendant has asked that I sign the draft Order or dispense with the Plaintiffs’ approval as to form and content of this Order. The Defendant makes this request because there had been no response to her counsel’s correspondence. Counsel for the Plaintiff is directed to advise whether he has any issues with the draft Order within seven (7) days of the release of these reasons. If he does not advise of any concerns, then that Order may be issued.
LeMay J. DATE: May 8, 2017