Zaravellas v. City of Toronto
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MIKE ZARAVELLAS
Plaintiff
– and –
CITY OF TORONTO
Defendant
Daniel J. Holland and Silene M. Malhao, for the Plaintiff
Nicole D. Tellier and Divya Khurana, for the Defendants
S.A.Q. AKHTAR J.
costs judgment
1The plaintiff, Mike Zaravellas brought an action against the City of Toronto seeking damages for an injury sustained by a fall on ice that he claimed the City had been negligent in failing to clear. He claimed compensation for a shoulder fracture caused by his slip. His action failed and the City now seeks costs of the trial in which it was forced to defend the claim.
2The City argues that it is entitled to costs on a substantial indemnity basis. Their costs claim is grounded on the actions of the defendant in bringing this claim. According to the City, the plaintiff acted unreasonably both in mediation and at judicial pre-trials, ignoring advice that his claim was unlikely to be successful in obtaining the amount of damages that he sought.
3In Davies v. Clarington (Municipality), 2009 ONCA 722, at para. 40, Epstein J.A. made the following remarks about the award of substantial indemnity costs to defendants:
In summary, while fixing costs is a discretionary exercise, attracting a high level of deference, it must be on a principled basis. The judicial discretion under rules 49.13 and 57.01 is not so broad as to permit a fundamental change to the law that governs the award of an elevated level of costs. Apart from the operation of rule 49.10, elevated costs should only be awarded on a clear finding of reprehensible conduct on the part of the party against which the cost award is being made.
4Although I accept the plaintiff’s evidence in court was a mixture of exaggeration and outright fabrication designed to win compensation, I do not find that his behaviour rises to the level described by the court in Davies. The City’s complaint, justified in many ways, is that the plaintiff was unreasonable and uncompromising in his demands. His failings in flexibility resulted in a trial in which he failed to prove the allegations and the payment of costs. A refusal to compromise does not, in my view, amount to vexatious behaviour in the litigation.
5As ever, I am guided by the principles contained in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and the overriding duty to award costs on a fair and reasonable basis 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), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291, at paras 26, 37.
6I remind myself that costs in this case are not a mathematical exercise and that the plaintiff has no real source of income other than disability allowance.
7That being said, I accept the City’s views that this was a lengthy trial joined with another action to save court time and avoid the duplication of expert evidence. The partial indemnity costs proposed by the City are a fair and reasonable amount.
8I therefore order that the plaintiff pay costs in the amount of $139,821.66, all inclusive, to the City of Toronto forthwith.
S.A.Q. Akhtar J.
Released: 3 January 2017
CITATION: Zaravellas v. City of Toronto, 2017 ONSC 52
COURT FILE NO.: CV-05-CV-393040
DATE: 20170103
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MIKE ZARAVELLAS
Plaintiff
– and –
TORONTO TRANSIT COMMISSION
Defendant
COSTS JUDGMENT
S.A.Q. AKHTAR J.