Superior Court of Justice - Ontario

COURT FILE NO: 90-CU-399680

DATE: 2018-04-10

RE: APOLLO REAL ESTATE LIMITED, Plaintiff

- and -

STREAMBANK FUNDING INC.O/A THE EQUITY CENTRE, GARY M. CULLEN and IRWIN BELITSKY, Defendants

BEFORE: The Honourable Mr. Justice Stephen E. Firestone

COUNSEL: William Malamas, acting in person, on behalf of Apollo Real Estate Limited, Plaintiff Andi Mackay, for the Defendant Gary Cullen

HEARD: Written Submissions

COSTS ENDORSEMENT

[1] On February 26, 2018 by way of written reasons, I ordered that the plaintiff’s action be stayed pursuant to Rules 57.03(2) and 60.12 for a period of 180 days of the date of those reasons to afford Apollo an opportunity to pay in full the costs order dated March 20, 2017 in the amount of $80,820.75.

[2] It was ordered that during this stay the registrar of this court is to accept no further filings or take any further steps excepting only the written cost submissions and entry of the order in relation to my written reasons referred to above. It was further ordered that if the cost order dated March 20, 2017 is not paid in full within 180 days of the date of my reasons, Apollo’s action shall be dismissed by the court without further notice to Apollo upon Cullen filing an affidavit certifying non-payment of that cost order.

[3] In my reasons I set a timetable for delivery of written cost submissions. Those submissions have now been received.

[4] Costs are within the discretion of the Court: Courts of Justice Act, s. 131 (1). The Court has a broad discretion when determining the issue of costs. Rule 57.01(1) sets out the factors the Court may consider when determining costs.

[5] A successful party is entitled to costs in the absence of a very good reason(s) not to award them. (Schreiber v. Mulroney, 2007 31754 (ON SC), [2007] O.J. No. 3191 (Sup.Ct.) at para. 2).

[6] The overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant. (Boucher v. Public Accountants Counsel for Ontario, 2004 14579 (Ont. C.A.).

[7] Cullen submits that in the Court’s reasons dated February 26, 2018 the Court granted Cullen’s motion in part to stay the plaintiff’s action for a period of 180 days to afford Apollo an opportunity to pay the outstanding cost award in full, failing which the action will be dismissed without further notice to Apollo upon the filing of an affidavit certifying non-payment of the cost order.

[8] Cullen submits that the ordinary rule is that costs are awarded to the successful party namely Cullen. There is no reason to depart on this ordinary rule, especially, Cullen argues, in this case where Malamas’ conduct has already been assessed as vexatious, where he has debated practically every conceivable issue, has made personal attacks and has caused undue expense to Cullen.

[9] Cullen requests payment of its bill of costs on a substantial indemnity basis in the amount of $9,671.48 inclusive of fees, disbursements and tax within 30 days.

[10] Apollo submits that Cullen did not file an affidavit that contains only copies of correspondence requesting or responding to requests for payment of its costs as directed. As a result Apollo was forced to respond to an additional 41 exhibits raising issues which are irrelevant to the issues raised in Cullen’s motion. On this basis Apollo claims costs against Cullen in the amount of $5,400.00 all-inclusive. In the alternative, Apollo submits that there should be no costs payable to Cullen. In the further alternative, Apollo submits that costs in the amount of $1,000 be paid by Apollo to Cullen on an all-inclusive basis.

[11] I have considered the submissions of counsel as well the relevant legal principles. I order partial indemnity costs of this motion in the all-inclusive sum of $4,000 payable by Apollo to Cullen within 60 days.

Firestone J.

DATE: April 10, 2018