Paderewski Society Home (Niagara) v. Skorski, 2017 ONSC 7421

Court File and Parties

CITATION: Paderewski v. Skorski, 2017 ONSC 7421

COURT FILE NO.: 55024/14

DATE: 2017/12/12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Paderewski Society Home (Niagara)

Plaintiff

– and –

Leopold Skorski, Alexander Davidoff and Alexandra Davidoff

Defendants

COUNSEL:

Zijad Saskin, for the Plaintiff

Malte von Anrep, for Leopold Skorski

Alexander Davidoff, Self-represented

Alexandra Davidoff, Self-represented

BEFORE: THE HONOURABLE JUSTICE J. R. HENDERSON

COSTS DECISION

[1]

Plaintiff's Costs

The plaintiff was the successful party in this defamation claim as the plaintiff proved that Leopold Skorski (“Skorski”) and Alexander Davidoff (“Davidoff”) made defamatory statements about tenant abuse and neglect at the Paderewski Home. These statements were published on the Mayorgate website and caused a loss of reputation for the plaintiff.

2The action was commenced in 2014 and proceeded to an eight-and-a-half-day trial in 2017. At the conclusion of the trial, by written reasons, I awarded damages in the amount of $10,000 payable jointly and severally by Skorski and Davidoff, and I ordered that the publication was to be removed from the Mayorgate website. The plaintiff’s claim against Alexandra Davidoff (“Alexandra”) was dismissed at the completion of the plaintiff’s case after three days of trial.

3In its written submissions, the plaintiff relies upon a written offer to settle dated March 2, 2016. I find that this offer contains several terms that were not included in my decision, including a term that the defendants pay substantial indemnity costs. Therefore, Rule 49 is not engaged by this offer.

4As the successful party, the plaintiff is entitled to its costs on a partial indemnity scale. In assessing the quantum of costs, I have taken into account the fact that the proceeding was of average complexity and that the trial was of moderate duration. I also accept that the claim was important to the parties, particularly to the plaintiff. I note that the plaintiff is a non-profit organization that relies on public funding, and thus any false allegations regarding the integrity of the plaintiff’s organization can be extremely detrimental.

5I have also taken into account the fact that the plaintiff was not entirely successful. Specifically, the plaintiff’s claim included an unsuccessful allegation that Skorski and Davidoff made defamatory statements with respect to financial irregularities at the Paderewski Home. I found that the defence of justification applied to these alleged defamatory statements. I accept that this unsuccessful part of the plaintiff’s claim was a significant part of the proceeding.

6Counsel for the plaintiff requests partial indemnity costs of approximately $64,000. In my view, this amount is excessive given the degree of success of the plaintiff and the other above-mentioned factors.

7I accept that there were many communications and negotiations between the parties over the past three years and that there were interlocutory motions with respect to a forensic accountant. However, the trial focused on only two types of defamatory allegations, tenant abuse and financial irregularities, and the three defences that were raised by the parties.

8I find that in these circumstances it is appropriate to award costs on a partial indemnity basis fixed at $20,000 plus HST for the trial, plus $10,000 plus HST for all services leading up to the trial, plus $1,277.74 for all disbursements inclusive of HST. I have already found that Skorski and Davidoff should be jointly responsible for damages, and therefore the same liability should be imposed for costs.

9Accordingly, I order that the costs of the plaintiff be fixed at $35,177.74, all inclusive, payable jointly and severally by Skorski and Davidoff within 60 days.

[10]

Costs of Alexandra Davidoff

Regarding the costs of Alexandra, I found that the claim by the plaintiff against Alexandra was not supported by the evidence. Therefore, Alexandra is entitled to her partial indemnity costs against the plaintiff from the start of the action until the claim was dismissed.

11Alexandra was self-represented throughout the proceeding and therefore Alexandra does not have the expense of legal fees and disbursements. However, it is appropriate for a successful self-represented litigant to be awarded a modest amount in costs as compensation for out-of-pocket financial loss, such as lost time from work.

12I received no particulars from Alexandra with respect to actual out-of-pocket loss, but I am persuaded to make a nominal costs order of $2,000 all inclusive, payable by the plaintiff to Alexandra within 60 days.

J. R. Henderson J.