Court File and Parties

CITATION: Varga v. Nacewicz, 2017 ONSC 4241

COURT FILE NO.: 2441/14

DATE: July 13, 2017

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Margaret Varga, plaintiff

AND:

Alexander Nacewicz, as the litigation administrator for the estate of Wanda Nacewicz, and Alexander Nacewicz, defendants

BEFORE: MITROW J.

COUNSEL: M. Paul Downs for the plaintiff

Alexander Nacewicz in person

HEARD: written submissions filed

ENDORSEMENT on costs

[1] Pursuant to my order dated May 29, 2017, the parties were given an opportunity to make written costs submissions with filing deadlines. The plaintiff has filed her written submissions, together with a bill of costs; no written submissions were received from the defendants and the time for filing those submissions has expired.

[2] The plaintiff was successful on her motion for summary judgment; she obtained an order for the sale of property that was the subject of the mortgage that she held, and the defendants’ counterclaim was dismissed.

[3] The mortgage covenant provides for the mortgagee’s (the plaintiff’s) costs to be paid on a “solicitor and client” basis; the plaintiff seeks substantial indemnity costs of $16,285.09 inclusive of HST and disbursements.

[4] I consider the factors in r. 57.01(1). I find that the defendant, Mr. Nacewicz, unduly prolonged this matter by his conduct, which resulted in adjournments that increased costs to the plaintiff. The defendant, Mr. Nacewicz, filed somewhat lengthy material, portions of which did not assist either the defendants or the court. Despite being urged by several judges to consult with or retain counsel, it appears that the defendant, Mr. Nacewicz, did neither; he advanced meritless arguments.

[5] Although the plaintiff’s action was for foreclosure, she volunteered to convert the action into a sale given the small amount owing on the mortgage in relation to the current value of the mortgaged property; this was done by the plaintiff despite the fact that no notice of sale was filed by the defendants, and despite the fact that this gesture was for the benefit of the defendants.

[6] Mr. Downs has 45 years experience. His hourly rate of $450 is reasonable.

[7] It appears that Mr. Downs personally effected service of some of the documents; although the record shows that the defendant, Mr. Nacewicz, was difficult to serve, requiring the plaintiff to obtain an order for substitutional service, it would have been more cost efficient to utilize an experienced process server.

[8] In fixing costs, the overriding principle is reasonableness.

[9] I order the defendants to pay to the plaintiff within 30 days her costs of the summary judgment motion fixed in the amount of $15,000 inclusive of HST and assessable disbursements.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: July 13, 2017