Court File and Parties

COURT FILE NO.: CV-11-106708 (Newmarket) MOTION HEARD: 2018 06 13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Marie Graff v. Beverley Sacrey, Mara Cook, Bowes & Cocks Limited Brokerage, Irene Rowan, Re/Max Eastern Realty Inc., Doug Kendall and Doug Kendall Property Services Inc.

BEFORE: MASTER R. A. MUIR

COUNSEL: Marie Graff in person Paul Gaglia for the defendants Mara Cook and Bowes & Cocks Limited Brokerage Amy Spagnolo for the defendants Irene Rowan and Re/Max Eastern Realty Inc. J. Christopher Russell for the defendant Beverley Sacrey Robert Becker for the defendants Doug Kendall and Doug Kendall Property Services Inc. Rodney Kort for the non-party Ministry of Advanced Education and Skills Development (now Ministry of Training, Colleges and Universities)

SUPPLEMENTARY REASONS FOR DECISION-COSTS

[1] These supplementary reasons arise from two motions heard by me on January 10, 2018 and June 13, 2018.

[2] The January 10, 2018 motion was brought by the plaintiff for an order setting aside the administrative dismissal of her action and other related relief. I granted the relief requested by the plaintiff against all parties other than Doug Kendall and Doug Kendall Property Services Inc. (the “Kendall Defendants”).

[3] The June 13, 2018 motion was also brought by the plaintiff and requested, in part, an order setting aside my order from the January 10, 2018 motion in relation to the Kendall Defendants on the basis of what the plaintiff alleged was a lack of procedural fairness. I released my reasons from that motion on July 25, 2018. I made an order dismissing the plaintiff’s motion to set aside my earlier order. I also requested written costs submissions. I have now received and considered those submissions.

[4] The Kendall Defendants and the plaintiff seek costs. None of the remaining defendants ask for costs.

[5] The Kendall Defendants request their partial indemnity costs of the January 10, 2018 motion in the amount of $4,757.52, inclusive of HST and disbursements. They ask for substantial indemnity costs of the June 13, 2018 motion in the amount of $7,747.98. The Kendall Defendants argue that they were the successful parties on the motions and are entitled to costs in accordance with the court’s usual practice. They seek substantial indemnity costs of the June 13, 2018 motion due to what they allege were unfounded allegations of misconduct made by the plaintiff.

[6] The plaintiff seeks costs against the Kendall Defendants and Mr. Becker in the amount of $6,717.00 for both motions. The plaintiff argues that her motions were reasonable in the circumstances and also points to what she alleges were various acts of misconduct on the part of Mr. Becker and the Kendall Defendants.

[7] When dealing with costs, the overall objective for the court is to fix an amount that is fair and reasonable for the unsuccessful party who generally must pay the costs of the successful party. See Zesta Engineering Ltd. v. Cloutier, [2002] OJ No. 4495 (CA) at paragraph 4 and Boucher v. Public Accountants Council for the Province of Ontario, [2004] OJ No. 2634 (CA) at paragraph 26. In Davies v. Clarington (Municipality), 2009 ONCA 722 the Court of Appeal stated as follows at paragraph 52:

Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.

[8] Apart from the operation of Rule 49.10 (offers to settle), elevated costs should only be awarded on the basis of a clear finding of reprehensible conduct. See Davies at paragraph 40.

[9] I see no reason to depart from the general practice of awarding costs to the successful parties on these motions. I do agree with the plaintiff there was some basis for the motion to extend time for service and to set aside the dismissal order in respect of the Kendall Defendants. I also understand the plaintiff’s motivation in bringing the motion to set aside my January 2018 order. I accept that the plaintiff’s concerns about procedure are genuinely held. I do not view her motions as unreasonable in the circumstances. However, the plaintiff was ultimately unsuccessful. The plaintiff was certainly aware that her decision to pursue her claims against the Kendall Defendants many years after the statement of claim was issued could result in a costs order against her if unsuccessful on these motions.

[10] The plaintiff and the Kendall Defendants have raised various issues of misconduct. In my view, none of the allegations rise to the level of reprehensible conduct so as to justify an award of costs on an elevated scale or costs to an unsuccessful party. The alleged misconduct is mostly a reflection of the contested nature of these motions and an understandable lack of strict formality given that the plaintiff is not represented by counsel. I see no misconduct on the part of either side or by Mr. Becker personally.

[11] For these reasons, I am not prepared to award costs to the plaintiff or elevated costs to the Kendall Defendants. In my view, it is fair and reasonable for the plaintiff to pay the Kendall Defendants’ partial indemnity costs of these motions.

[12] However, it is also my view that the costs requested by the Kendall Defendants are excessive for these motions. These were not complicated motions from a factual or legal perspective. The law is well settled. The important facts in respect of the Kendall Defendants were straightforward and discrete. It is important to note that in my decision from the January 10, 2018 motion, I found that the plaintiff had met most of the requirements of the test to set aside an administrative dismissal. I ultimately declined to set aside the dismissal against the Kendall Defendants largely due to a finding of a deliberate decision on the part of the plaintiff to not pursue her claim against those defendants. In my view, these facts support a reduction in the costs requested by the Kendall Defendants.

[13] I also note there was a significant overlap in terms of evidence and argument between the January and June 2018 motions. I have also taken into account the difficulty caused by the loss of the court file, which was certainly not the responsibility of any of the parties. Finally, I have given some weight to the plaintiff’s obviously difficult financial and personal circumstances in determining the amount and payment terms of a costs order.

[14] For these reasons, I have concluded that it is fair and reasonable for the plaintiff to pay the Kendall Defendants’ partial indemnity costs of these motions fixed in the amount of $1,500.00, in total for both motions and inclusive of HST and disbursements. These costs shall be paid within 180 days.

Master R.A. Muir DATE: 2018 10 15