Superior Court of Justice - Ontario

Citation: Enofe v. Capreit Limited Partnership, 2017 ONSC 5088 Court File No.: CV-13-490632 Date: 2017-09-14

Re: Andrew Enofe And: Capreit Limited Partnership

Before: Stewart J.

Counsel: Andrew Enofe, in person Brian Monteiro, for the Defendant

Heard: In Writing

Costs ENDORSEMENT

[1] In my reasons for decision released on June 30, 2017 I invited the parties to deliver written submissions on costs if that subject could not be agreed upon. I now have received and reviewed submissions from both parties.

[2] This action was commenced under the Simplified Rule procedure which was designed for cost-effective adjudication of simple, straightforward actions involving comparatively modest claims. As a result, any damages that might have been recovered by the Plaintiff were subject to the $100,000.00 ceiling under the Rule. As it turned out, liability was determined in favour of the Defendant, and damages were assessed at $17,500.00.

[3] The action took a full week to be heard. Some of the time at the beginning of the proceeding was devoted to hearing motions relating to subpoenas that had been served by the Plaintiff and which were subsequently struck.

[4] Once these preliminary issues had been addressed, I am of the view that both parties attempted to make fairly good use of court time and to avoid unnecessary waste of time. Although the Plaintiff represented himself at trial, he had endeavoured to acquaint himself with court procedure and tried throughout to focus his evidence and arguments on the relevant issues.

[5] As the successful party, the Defendant now seeks costs. The Defendant, a large commercial property management company, was represented at trial by an in-house counsel from Aviva Trial Lawyers employed by its insurer.

[6] Aviva Trial Lawyers does not maintain time dockets. The Bill of Costs submitted on behalf of the Defendant is therefore based only on an estimate of time spent defending the action. It sets out the Defendant’s total substantial indemnity costs, inclusive of disbursements of $117,354.86. On a partial indemnity scale, costs total $91,503.17.

[7] The Defendant served two offers to settle the Plaintiff’s claim upon which it relies, an offer to pay to the Plaintiff $600.00 all-inclusive, made on October 19, 2015, and an offer to pay $1000.00 all-inclusive, made on August 15, 2016.

[8] These offers were not accepted by the Plaintiff. His counter-proposals for resolution were never below $60,000.00. It therefore must be concluded that the Defendant achieved a result better than its offers.

[9] In its written submissions, the Defendant claims costs, including substantial indemnity costs of approximately $63,000.00 for time spent following its offer. Alternatively, it seeks costs on a partial indemnity basis of $51,702.25.

[10] The Plaintiff asks that no costs be ordered. He argues that the offers extended by the Defendant were insulting. Given the amount of damages at stake and the fact (he submits) that the conduct of the Defendant is responsible for his poor economic circumstances, he argues that a decision not to award any costs is the only just and reasonable result.

[11] I am of the view that the successful Defendant is entitled to an award of costs as contribution toward the expense incurred by it in defending the action. However, I note as well that this was an action under the Simplified Rule that involved a comparatively modest claim for compensation.

[12] When the over-arching principle of proportionality (see: Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ONCA)) is considered along with the other factors that affect the determination of costs, I am of the view that the appropriate amount to award the Defendant for costs in this case is $25,000.00, inclusive of disbursements and all applicable taxes, and I so order.

[13] Accordingly, the costs ordered herein are included in the draft judgment provided by Defendant’s counsel which now has been signed by me.

Stewart J.

Date: September 14, 2017