CITATION: Berar v. Dolson, 2017 ONSC 607
COURT FILE NO.: CV-14-502625
DATE: 20170130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NIKOLA BERAR
Plaintiff
– and –
DAVID W. DOLSON, IRENA SACIROVIC AND SLAVKA ILIC
Defendants
AND BETWEEN:
SLAVKA ILIC
Plaintiff by Counterclaim
- and –
NIKOLA BERAR
Defendant by Counterclaim
Arie Gaertner, for the Plaintiff
Thomasina Dumondeau & Marko Djukic, for the Defendants
HEARD: In Writing
V.R. CHIAPPETTA j.
COSTS JUDGMENT
[1] I dismissed the plaintiff’s summary judgment motion against the defendant Dolson. Dolson seeks his costs of the motion in the amount of $51,010.55.
[2] Previously, where the moving party was unsuccessful on a motion for summary judgment, there was a presumption that the successful party was entitled to costs on a substantial indemnity basis unless the court was satisfied that the making of the motion, although unsuccessful, was nevertheless reasonable. As of January 1, 2010, the presumption of substantial indemnity costs was eliminated. However, the courts still retain discretion to award such costs where the unsuccessful party has acted unreasonably or in bad faith.
[3] The Supreme Court in Hryniak v. Mauldin, 2014 SCC 7 interpreted the 2010 amendments to Rule 20 and underscored the necessity of a cultural shift to improve access to justice. At para. 28 Karakatsanis J. stated:
The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible – proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.
[4] In Hryniak the Supreme Court said the following about costs and motions for summary judgment at paras. 70 and 71:
The Rules provide for early judicial involvement, through Rule 1.05, which allows for a motion for directions, to manage the time and cost of the summary judgment motion. This allows a judge to provide directions with regard to the timelines for filing affidavits, the length of cross-examination, and the nature and amount of evidence that will be filed. However, motion judges must also be cautious not to impose administrative measures that add an unnecessary layer of cost.
Not all motions for summary judgment will require a motion for directions. However, failure to bring such a motion where it was evident that the record would be complex or voluminous may be considered when dealing with costs consequences under Rule 20.06(a). In line with the principle of proportionality, the judge hearing the motion for directions should generally be seized of the summary judgment motion itself, ensuring the knowledge she has developed about the case does not go to waste.
[5] While the plaintiff was unsuccessful in his efforts as against Mr. Dolson, it cannot be said that he acted unreasonably in bring his motion for summary judgment or in bad faith. I accept the plaintiff’s evidence demonstrating that the plaintiff is a man without financial means, despite his admission on examinations for discovery that a portion of his income is not reported on his income tax returns. I am guided by the Supreme Court’s comments noted above with respect to access to justice. For these reasons, I exercise my discretion in awarding costs in favour of Mr. Dolson in the cause.
[6] The plaintiff also seeks the costs of his successful motion for summary judgment as against Ms. Ilic. The counterclaim was dismissed on the basis that Ms. Ilic lacked legal capacity by reason of having been an undischarged bankrupt at the time she asserted her counterclaim. I no longer have the file for reference. It is unclear from the plaintiff’s costs submissions whether Ms. Ilic remains an undischarged bankrupt and if so whether the Trustee was put on notice of the request for costs. If the plaintiff intends to pursue his request for costs as against Ms. Illic, I invite him to provide a more detailed factual basis for the same.
V.R. Chiappetta J.
Released: January , 2017
CITATION: Berar v. Dolson, 2017 ONSC 607
COURT FILE NO.: CV-14-502625
DATE: 20170130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NIKOLA BERAR
Plaintiff
– and –
DAVID W. DOLSON, IRENA SACIROVIC AND SLAVKA ILIC
Defendants
AND BETWEEN:
SLAVKA ILIC
Plaintiff by Counterclaim
- and –
NIKOLA BERAR
Defendant by Counterclaim
COSTS JUDGMENT
V.R. Chiappetta J.