Court File and Parties

CITATION: Soroka v. Kiff, 2017 ONSC 6536

COURT FILE NO.: 1409/16

DATE: November 2, 2017

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: IRENA SOROKA and ELIZABETH ALEXANDRA SALNIKOVA MYTHFISH, applicants

AND: GLENN ROBERT KIFF and LINSER DOUGLAS WAYNE, formerly known as LINDA DAWN WAYNE, respondents

BEFORE: VOGELSANG J.

COUNSEL: John B. Brennan for the moving parties, Irena Soroka and Elizabeth Alexandra Salnikova Mythfish Charles L. Mackenzie Q.C. for the respondent, Glenn Robert Kiff David S. Swift for the respondent, Dr. Linser Wayne

HEARD: written submissions filed

ENDORSEMENT ON COSTS

[1] This was an urgent motion to compel a sale of a parcel of commercial real estate in London, following a consent order of Garson J. in October, 2016 dealing with the marketing and sale of the property. Dr. Wayne was the only one of the four owners who disagreed with the sale price of $805,000 offered by a private individual, which offer was to expire at midnight of the day the motion was argued.

[2] I gave brief written reasons on August 8th and ordered the sale to proceed. Obviously, Mr. Brennan and Mr. Mackenzie (whose client, Mr. Kiff, disagreed with Dr. Wayne and emphatically supported the sale) enjoyed complete success on the motion.

[3] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 clearly sets out the court’s discretion concerning the “costs of and incidental to a proceeding or a step in a proceeding.” The factors structuring the exercise of that discretion are set out, without exclusivity, in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as follows:

Factors in Discretion

57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs.

[4] That the issue of costs is important to litigants cannot be disputed, but access to justice is of great consequence as well and must be preserved. Carthy J.A. said in Bell Canada v. Olympia & York Developments Ltd., 1994 CanLII 239 (ON CA), 1994 CarswellOnt 520 (Ont. C.A.), at para. 15:

The courts must also be careful not to become too paternalistic with litigants or to unnecessarily discourage recourse to the trial as a forum for the resolution of disputes. Concern is properly directed to unreasonable conduct in the course of litigation which leads to unnecessary or prolonged trials. However, the judicial system is here to serve the public and no barriers to access should be imposed by warnings as to cost consequences arising from the court's assessment of how litigants should conduct their business.

[5] There is nothing untoward or excessive, in my view, about the amount of work done or the material assembled by the successful counsel in the prosecution of this motion – which involved the sale of property of considerable value. Similarly, the rates charged are reasonable and fair, considering the experience and competence of the counsel involved.

[6] I am somewhat concerned about the descriptions of the conduct of Dr. Wayne following the order of Garson J. It is apparent that he behaved in a manner surprisingly inconsistent with both the expressed wishes of his co-owners and the intent of Garson J.

[7] I am required to step back and make an assessment of a sensible and fair result consistent with what the unsuccessful party might reasonably have expected to have to pay considering the result achieved and to try to view the costs issue in a flexible and balanced way, recognizing the wide discretion afforded by s. 131: Moon v. Sher (2004), 2004 CanLII 39005 (ON CA), 246 D.L.R. (4th) 440, [2004] O.J. No. 4651 (C.A.). The costs assessment, as well, must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created: Pagnotta v. Brown, 2002 CarswellOnt 2666 (Sup. Ct.). At the end of the day, the costs award should represent a fair and reasonable amount that should be paid by Dr. Wayne, rather than any exact measure of the actual costs to the moving parties and Mr. Kiff: Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), [2002] O.J. No. 4495 (C.A.).

[8] I am aware of the considerable work done in preparation of the motion materials, including the supporting affidavits exhibits and authorities briefs. On the other hand, the actual argument on the motion was conducted very efficiently and occupied less than two hours.

[9] To my mind, an appropriate award of costs to the moving parties is $6,000, and to Mr. Kiff, $3,350, in each case including recoverable disbursements and H.S.T. Those amounts for costs reasonably reflect the time and effort warranted by the proceeding: Gratton-Masuy Environmental Technologies Inc. (c.o.b. Ecoflo Ontario) v. Building Materials Evaluation Commission, 2003 CanLII 8279 (ON SCDC), [2003] O.J. No. 1658 (Div. Ct.). The costs ordered are payable in 30 days.

“Justice Henry Vogelsang”

Justice Henry Vogelsang

Date: November 2, 2017