Court File and Parties

CITATION: Sarazen Realty v. Bisson et al., 2017 ONSC 6081

COURT FILE NO.: 15-65083

DATE: 2017/10/11

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

SARAZEN REALTY INC. COB COLDWELL BANKER SARAZEN REALTY BROKERAGE

Plaintiff (Moving Party)

– and –

PAUL McTAGGART and MARCEL BISSON and JEAN-GEORGES BISSON

Defendants (Responding Parties)

– and –

MARCEL BISSON and JEAN-GEORGES BISSON

Plaintiffs by Counterclaim

(Responding Parties)

– and –

SARAZEN REALTY INC. COB COLDWELL BANKER SARAZEN REALTY BROKERAGE and KEITH SENNETT

Defendants to the Counterclaim

(Moving Parties)

COUNSEL:

Steven Greenberg, counsel for the Plaintiff (Moving Party) and for the Defendants to the Counterclaim (Moving Parties)

Charles Gibson, counsel for the Defendants (Responding Parties) and for the Plaintiffs by Counterclaim (Responding Parties)

Susanne Sviergula, counsel for the Defendant (Responding Party)

HEARD: July 12, 2017

ENDORSEMENT AS TO costs

O’BONSAWIN J.

[1] On September 5, 2017, I released my Reasons for Decision and granted a Summary Judgment to the Plaintiff. In my Reasons for Decision, I stated the following:

Sarazen Realty and Mr. Sennett are the successful parties in this case. If the parties cannot agree as to costs, they may provide my office with brief written submissions on costs not exceeding three pages, exclusive of the Bill of Costs. Sarazen Realty and Mr. Sennett will have ten days from the date of this Decision to provide their submissions and the Bisson brothers and Mr. McTaggart will have ten days thereafter to do the same. Sarazen Realty and Mr. Sennett will be allowed a brief reply if deemed necessary, of no more than one page which shall be provided within the next five days.

[2] On September 11, Mr. Greenberg, counsel for Sarazen Realty, provided me with his client’s Submissions on Costs, Costs Outlines, and case law. Mr. Gibson, counsel for the Bisson brothers, did not respect the timeline provided in my decision and as of today, he did not serve and file any Submissions, etc. This is my Endorsement on the issue of costs.

[3] Kershman J. directed that the costs of the attendance before him on June 20, 2017, be fixed by the judge hearing the motion on July 12, 2017.

[4] The Bisson brothers signed the Minutes of Settlement. Sarazen Realty argues that afterwards, the Bisson brothers apparently had a change of heart and sought to get out of the Minutes of Settlement. Sarazen Realty states that the Bisson brothers proceeded to make false claims of not understanding the process on a language level, of being tired and not understanding the process at the Settlement Conference. I dismissed these claims made by the Bisson brothers.

[5] Sarazen Realty also argues that the Bisson brothers intentionally brought the two motions to increase the costs to Sarazen Realty. The Bisson brothers refused to sign the Releases related to the Minutes of Settlement, wanted to continue their Counterclaim action, and maintained their position during the motions. Their Counterclaim alleges fraud and a breach of trust against Sarazen Realty and Mr. Sennett. There is also an allegation that Mr. Sennett misappropriated money from the Bisson brothers. Sarazen Realty argues that breach of fiduciary duty and trust are the same as an allegation of fraud for the purpose of costs. Both are allegations of dishonest conduct.

[6] Sarazen Realty provided me a Bill of Costs for the Motion for Stay and the Motion for Summary Judgment. I was not provided a Bill of Costs for the Motion before Kershman J. Counsel for Sarazen Realty was called to the bar in 1986. His hourly rate is $425. Costs are sought at the full indemnity basis in the amount of $10,205.31 for the Motion for Stay and the amount of $10,059.70 for the Motion for Summary Judgment. In a nutshell, Sarazen Realty’s counsel claims 21.25 hours to draft correspondence and pleadings, research law, and prepare for the Motion for Stay. It must be noted that counsel claims 1.5 hours to attend court for the original motion date that was not heard because the available judge was not able to hear the motion. Sarazen Realty argues that the Bisson brothers’ counsel could have determined this issue prior to the motion and the attendance would not have been required. In addition, counsel claims 20.6 hours to draft correspondence and pleadings, research law, conferences, prepare for the Motion for Summary Judgment, and prepare the Costs Submissions and Bill of Costs. The amounts claimed appear to be reasonable with the exception of the preparation of the Costs Submissions and the Bill of Costs. In McDonald v. Anishinabek Police Service, 2006 CanLII 37598 (ON SCDC), 83 O.R. (3d) 132, 276 D.L.R. (4th) 460 (Div. Ct.), the Divisional Court concluded that it is not reasonable to award costs for the preparation of the costs submission unless there are unusual circumstances related to the task. In this case, there are no unusual circumstances and Sarazen Realty cannot claim for the preparation of the Costs Submissions and the Bill of Costs.

[7] A successful party is presumptively entitled to costs in a reasonable amount (Boucher v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291, 2004 CanLII 14579 (C.A.) [Boucher]). The amount awarded is intended to be fair and reasonable for the unsuccessful party, but not fixed by the actual costs incurred by the successful party (Boucher, at paras. 24, 26).

[8] The court has discretion to award costs pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (Goldman v. Weinberg, 2017 ONSC 4743, at para. 4 (citing Chandra v. CBC, 2015 ONSC 6519)). Rule 57.01(1) sets out a number of factors to be considered in determining costs. In this matter, the most relevant factors are (e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding, and (f) whether any step in the proceeding was, (i) improper, vexatious or unnecessary, or (ii) taken through negligence, mistake or excessive caution. On the Summary Judgment Motion, I determined that the Bisson brothers acted inappropriately when they tried to get out of the Minutes of Settlement that they had willingly entered into, and that these actions unnecessarily lengthened the duration of the proceeding. In addition, it is clear that the Motion for Stay unnecessarily lengthened the duration of the proceeding and was improper and unnecessary. There is also the matter of public interest to be considered. There should be finality of court actions when parties sign Minutes of Settlement and these actions should not be prolonged unnecessarily.

[9] Parties often argue that costs should follow the event. This was confirmed in Schreiber v. Mulroney, 160 A.C.W.S. (3d) 53, 2007 CanLII 31754 (Ont. S.C.), at para. 2. Substantial indemnity costs are the exception to the rule. In Ciroflex v. Royal Bank of Canada, 2013 ONSC 685, Goldstein J. concludes that an exception to the rule exists when there are baseless or unproven allegations of fraud or deceit. He reviewed Murano v. Bank of Montreal, 1998 CanLII 5633 (ON CA), 41 O.R. (3d) 222, 163 D.L.R. (4th) 21 (C.A.). Goldstein J. also cited Lax J. in Manning v. Epp, 152 A.C.W.S. (3d) 376, 2006 CanLII 35631 (Ont. S.C.), aff’d 2007 ONCA 390, at paras. 7-8:

Costs on the higher scale can be awarded as a form of chastisement and as a mark of the court's disapproval of a litigant's conduct. This is intended to punish as well as to deter others from engaging in similar conduct. Unproved allegations of fraud frequently attract awards on the higher scale. Unproved allegations of breach of trust, conspiracy, misrepresentation, breach of fiduciary duty, and the like, may also attract this kind of award: Beaver Lumber Co. v. 222044 Ontario Ltd. (1997), 5 C.P.C. (4th) 253 (Ont. Gen. Div.) at p. 256.

Cost sanctions are imposed for these kinds of unproved allegations because they are rooted in assertions of dishonesty and deceit and go to the heart of a person's integrity: Bargman v. Rooney (1999), 30 C.P.C. (4th) 259 (Ont. Gen. Div.) at pp. 268-269; Dyer v. Mekinda Snyder Partnership Inc. (1998), 1998 CanLII 14847 (ON SC), 40 O.R. (3d) 180 (Gen. Div.) and see cases referred to at pp. 184-185. Where serious allegations of dishonest or illegal acts are made, but are so inadequately pleaded that they are not permitted to go forward, costs consequences should likewise follow. These allegations have stood in the public record and over the heads of the defendants. The plaintiffs admitted that the allegations were akin to or as serious as fraud. The allegations were made against public officials in the course of carrying out their public duties. To strike recklessly at the integrity of a person occupying a position of public trust is a serious matter.

[10] In Annabelle Tingas-Demetriou v. Max Dublin et al., 2016 ONSC 3114, the Plaintiff sued the Defendants and alleged that they had fraudulently misappropriated approximately $300,000 from her. As in this case, the claim related to a real estate purchase. Turnbull J. concluded that Ms. Tingas-Demetriou’s claim was ill founded. She had not proved that there was a conspiracy, deceit or fraud (para. 12). Turnbull J. found this was a case in which full indemnity fees should be awarded (para. 16). As in Tingas-Demetriou, I conclude that the Bisson brothers have not proved that Sarazen Realty and Mr. Sennett acted fraudulently and their actions did not constitute a breach of trust. Consequently, this case is the exception to the rule.

[11] Based on my decision and my findings regarding the Bisson brothers’ conduct, I conclude that this is an appropriate case to award Sarazen Realty its costs at the full indemnity amount.

[12] I order that the Bisson brothers shall pay Sarazen Realty its costs within 30 days of this Endorsement as follows:

(a) $5,000.00 for the Motion before Kershman J.;

(b) $10,205.31 for the Motion for Stay; and

(c) $10,059.70 for the Motion for Summary Judgment less the fee of $743.75 + HST to prepare the Costs Submission and the Bill of Costs.

Justice M. O’Bonsawin

Released: October 11, 2017

CITATION: Sarazen Realty v. Bisson et al., 2017 ONSC 6081

COURT FILE NO.: 15-65083

DATE: 2017/10/11

SUPERIOR COURT OF JUSTICE

ONTARIO

SARAZEN REALTY INC. COB COLDWELL BANKER SARAZEN REALTY BROKERAGE

Plaintiff (Moving Party)

– and –

PAUL McTAGGART and MARCEL BISSON and JEAN-GEORGES BISSON

Defendants (Responding Parties)

– and –

MARCEL BISSON and JEAN-GEORGES BISSON

Plaintiffs by Counterclaim

(Responding Parties)

– and –

SARAZEN REALTY INC. COB COLDWELL BANKER SARAZEN REALTY BROKERAGE and KEITH SENNETT

Defendants to the Counterclaim

(Moving Parties)

ENDORSEMENT AS TO costs

O’Bonsawin J.

Released: October 11, 2017