COURT FILE NO.: 487/16
DATE: 20181024
SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT
RE: MILOS MOLEROVIC, Plaintiff (Appellant)
AND:
DAVID PYE, ANN PYE, ORYSIA SOZANSKI AND RE/MAX PROFESSIONALS INC., Defendants (Respondents)
BEFORE: Mr. Justice H.J. Wilton-Siegel
COUNSEL: David Seed, for the Plaintiff (Appellant)
Robert Dowhan and Catherine Grinyer, for the Defendants (Respondents)
HEARD: In Writing
COSTS ENDORSEMENT
[1] The respondents, David Pye and Ann Pye, were successful on this appeal and are entitled to costs. They seek costs on a full indemnity basis of $22,441.23 on an all-inclusive basis. The appellant, Milos Molerovic, argues that the costs should be limited to the range of $2,500 - $4,000. I am of the opinion that the respondents are entitled to the costs they seek for the following reasons.
Factual Background
[2] The appellant executed an agreement of purchase and sale regarding the sale of their home. The appellant then arbitrarily purported to cancel the agreement. The respondents resold the house and incurred losses of $10,000. The appellant commenced an action seeking the recovery of his deposit of $40,000 after being put on notice by the respondents’ legal counsel that his purported cancellation amounted to anticipatory breach of the agreement. By agreement, $30,000 of the deposit was released to the appellant. The respondents sought no more than to be reimbursed for their losses of $10,000. However, the appellant continued the action in small claims court seeking the remainder of the deposit, thereby seeking to force the respondents to bear the losses caused by his actions. Having lost the trial, he then unsuccessfully appealed to this court, raising a considerable number of grounds of appeal in his notice of appeal that were reduced to four principal grounds at the hearing.
The Appellant’s Position
[3] The appellant has raised the following arguments in support of his position on costs which I have rejected for the following reasons.
[4] First, he says that he limited the appeal to questions of law and not fact, thereby narrowing the issues. This is not correct. Most of the issues raised in the notice of appeal were matters of mixed fact and law for which the factual circumstances were critical. The grounds of alleged misapprehension of the evidence and insufficiency of reasons, which were argued at the hearing, were simply attempts to revisit the evidence. The issues raised were therefore not straightforward and involved considerable effort on the part of the respondents in addressing them, and of the Court in rendering its decision.
[5] Second, the appellant says the Court should take into consideration his offer to settle, which entailed a payment to him of $9,000. However, the appeal had no merit. An offer to settle that left the respondents bearing $9,000 of their losses as a result of his unjustifiable actions was not a meaningful offer. It is the respondents who acted reasonably. In the expectation that this matter would be resolved without additional costs, they released $30,000 of the deposit. Had they not done so, the deposit would have been available to satisfy the increased costs which the appellant has now caused. However, it will now be necessary for them to pursue the appellant for payment.
[6] Third, the appellant says there is an access to justice issue. He says that he was entitled to assert his strongly held views in a court without the prospect of costs on a scale that would render his appeal untenable. In this case, his strongly held views had no legal basis. He was not entitled to avoid the cost consequences of exercising his right to assert his strongly held, but erroneous, views in court.
[7] Fourth, the appellant says the costs are disproportionate to the amount at issue, being $10,000. He is correct. However, that was the result of the appellant’s choice to pursue this appeal in the manner he did notwithstanding the relatively small amount at issue. The litigation was the result of the appellant’s unwillingness to recognize that the law does not permit an arbitrary and unilateral disregard for contractual obligations.
Analysis and Conclusions
[8] In this case, in fixing fair and reasonable costs, I have had regard to the matters set out above and to the following additional considerations.
[9] First, given the nature of the grounds of appeal, and the related factual complexity, the appellant must reasonably have expected that the respondents’ legal costs would be substantial.
[10] Second, the appellant has not provided a costs outline or other evidence of the time that his own legal counsel devoted to this matter. There is therefore no evidence of his reasonable expectations. However, it would be unreasonable to assume that his own legal costs fell within the range he proposes for the respondents’ reasonable costs of the appeal.
[11] Third, this case involved the sale of the respondents’ home at a time when their finances dictated a sale as a result of Ms. Pye’s medical condition and Mr. Pye’s need to retire to assist her. For the Pyes, the proceeds of sale represented a considerable portion of their capital for their retirement. They are entitled to be held to their representations and obligations in the agreement of purchase and sale. Conversely, they are entitled to expect that a counterparty will not arbitrarily breach the contract and expect to be relieved of the financial consequences of his actions.
[12] Lastly, this litigation arose as a result of a blatant breach of contract for the purchase of the respondents’ house. The appellant apparently believes that he was entitled to breach the contract at will if he so chose. The appellant’s arbitrary cancellation of the agreement of purchase and sale caused the respondents to incur losses of $10,000. The appellant then caused the respondents to bear additional expense in the small claims court proceeding, for which they were not fully reimbursed in the costs award because of the costs regime in that court. In appealing the decision of the Deputy Judge in the manner that he did, he caused the respondents to bear considerable additional costs despite a clear decision in their favour by the Deputy Judge. He suggests that these additional costs should become increased losses of the respondents. The appellant’s motivation in pursuing this matter is highly questionable. Looking at the entirety of the situation, I consider the appellant’s actions in pursuing this litigation in the manner described above to be abusive.
[13] Based on the foregoing, I am of the view that fair and reasonable costs in this case are the costs sought by the respondents. Accordingly, the respondents are awarded costs in the amount of $22,441.23.
Wilton-Siegel J.
Date: October 24, 2018