Court File and Parties

COURT FILE NO.: 56847/16 DATE: 2018/08/28 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Paul Stephen Stefanchuk, Applicant AND: Linda Jean Leliever, Stephen Stefanchuk and The Office of the Public Guardian and Trustee, Respondents

BEFORE: The Honourable Justice R. B. Reid

COUNSEL: G. Kuzyk, for the Applicant R. Brady, for the Respondents

HEARD: March 8, 2018 and July 16, 2018

Costs Endorsement

[1] This costs endorsement flows from a decision on two motions that were argued on March 8 and July 16, 2018. Costs submissions were requested and have now been received.

[2] By way of background, the outstanding issue in the application is a claim for an accounting by the respondent, Linda Jean Leliever, relating to her alleged use of funds belonging to her father, the respondent Stephen Stefanchuk. Part of that issue relates to the nature of her ownership of a joint bank account and her use of funds from that account. The applicant is Mr. Stefanchuk’s son who is also Ms. Leliever’s brother.

[3] The first was a motion by Ms. Leliever asking that the application be struck under rule 14.09 of the Rules of Civil Procedure. In that motion, she asserted that there was no basis for the allegations against her as to improper use of any funds belonging to her father. She relied on the content of affidavits filed by her on which she was cross-examined.

[4] I observed in my oral decision that just because a party may have a good defence to a claim does not mean that no claim should be made.

[5] Rule 14.09 provides that an originating process may be struck out or amended in the same manner as a pleading. That leads to a consideration of rule 25.11 which allows the court to strike out a pleading if it is scandalous, frivolous or vexatious, or an abuse of the process of the court. The alleged weakness of the applicant’s case does not fit any of those criteria, and therefore the motion was dismissed.

[6] I noted parenthetically that rule 25.11 does not provide for the equivalent of a summary judgment motion, and in fact the case law is clear that the procedure under rule 20 for summary judgment does not apply to an application.

[7] The second motion was by the applicant seeking an amendment of the pleadings which was not seriously contested by Ms. Leliever, assuming that the application was allowed to proceed. The provisions of the rules are presumptive in favour of amendments to pleadings except in circumstances where prejudice would result that could not be compensated by costs or an adjournment. That prejudice was not present in this case and therefore the applicant’s motion was granted.

[8] The applicant seeks an award of costs primarily on the basis of success.

[9] As well, the applicant submits that the proceedings were unnecessarily protracted by Ms. Leliever and that she did not consent to the pleadings amendment when requested. The applicant notes that there was no proper foundation to the motion to strike the pleading since it was, in effect, a summary judgment motion. Therefore the applicant seeks full indemnity costs.

[10] The applicant requests full indemnity costs of $30,600 (plus HST) and disbursements of $501.07 (inclusive of HST).

[11] Counsel for Ms. Leliever submits that, while unsuccessful, the motion seeking to have the application struck was appropriate based on the strength of Ms. Leliever’s case as disclosed in the affidavit material. He submitted that if costs are to be awarded against her, they should be in the $7,000 to $10,000 range, and that payment should be reserved until the conclusion of the matter.

[12] The court’s discretion to award costs flows from section 131 of the Courts of Justice Act.

[13] Factors to be considered in the exercising of discretion are enumerated in rule 57.01. Success is a presumptive factor, and in this case, the applicant was entirely successful. Thus an award of costs is appropriate in favour of the applicant.

[14] I agree with the applicant that the pleadings amendment issue, if the subject of a motion at all, should have been on consent from the outset. In that regard, counsel for the applicant should not have had to prepare for and attend on that motion.

[15] As to the motion to strike, I note that my decision was based on the failure on the part of Ms. Leliever to fit her request into the provisions of rule 25.11. In neither my oral decision on Ms. Leliever’s motion, nor in this costs endorsement, do I make any comment on the ultimate success of Ms. Leliever’s defence to the application. However, no matter how strong she considers her position to be, and as I have set out above, the summary judgment procedure under rule 20 is not available in an application.

[16] As to the scale of costs, full indemnity and even substantial indemnity costs include a quasi-punitive element. In this case, arguably Ms. Leliever should have conceded the pleadings amendment issue, although most of the submissions were focused on the motion to strike. While unsuccessful and perhaps ill-advised, that motion was not improper.

[17] I conclude that a costs order on a partial indemnity basis is appropriate.

[18] I have reviewed the consolidated time summary provided by the applicant and take no exception to either the time spent or hourly rates.

[19] Therefore, there will be an order that the respondent Ms. Leliever pay costs to the applicant fixed in the amount of $17,340 plus HST in the amount of $2,254, together with disbursements in the amount of $501, for a total of $20,095.

[20] As to when the costs should be paid, the general practice is that costs should be payable forthwith unless, in the particular circumstances of the case, a different result is required. Clearly, in this case, there has been a breakdown of confidence between the applicant and Ms. Leliever which is regrettable. However, I do not consider that the facts justify a delay in the implementation of the costs order, and therefore they are to be payable by the respondent Ms. Leliever to the applicant within 90 days.

Reid J. Date: August 28, 2018