Andrzejewska v. Andrzejewski, 2018 ONSC 6458

Court File and Parties

COURT FILE NO.: CV-18-202 DATE: 2018 11 20 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Stanislawa Andrzejewska by her Litigation Guardian Jolanta Ricci, Applicant and: Michael Andrzejewski, Respondent

BEFORE: Justice G.D. Lemon

COUNSEL: Gibrian Malicki-Sanchez, Counsel for the Applicant David Nuri, Counsel for the Respondent

HEARD: In Writing

Costs Endorsement

The Issue

1On November 19, 2018, I released my reasons for dismissing Ms. Ricci’s motion for the sale of the home in issue and her request to strike the pleadings filed by Mr. Andrzewski. I have now received their submissions with respect to costs.

2Mr. Andrzejewski seeks costs on a full indemnity basis fixed in the amount of $21,387.26.

3Ms. Ricci does not respond to those costs submissions. Instead, she has filed a costs outline that appears to suggest that she should receive costs in the amount of $9,424.22.

Authorities

4Rule 57.01 of our Rules of Civil Procedure sets out the factors that the court may consider when determining costs. The relevant factors that I should consider here are:

(a) the result in the proceeding, (b) the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer; (c) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed; (d) the amount claimed and the amount recovered in the proceeding; (e) the complexity of the proceeding; (f) the importance of the issues; (g) the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding.

5Modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan, (1999), 46 O.R. (3d) 330, at para. 22.

6Costs awards, at the end of the day, should reflect “what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties”: see Boucher v. Public Accountants Council for the Province of Ontario, (2004), 71 O.R. (3d) 291, at para. 24.

Analysis

7The principle issues for the motion were that the house in which Mr. Andrzejewski lives should be sold and he evicted, along with a motion to strike his pleadings. Ms. Ricci was unsuccessful on both of those significant issues.

8While it is true that the matter is to proceed as an action and Mr. Andrzejewski will be required to pay the utilities on the home in which he lives, there is no doubt that he has been successful and Ms. Ricci has not. Accordingly, he is entitled to costs and she is not.

9This was important litigation to both parties. Given that the litigation involves two siblings fighting about their mother’s most significant asset, the issue is even more important to the two of them on an emotional basis.

10Although Ms. Ricci was fundamentally wrong in her position, given the circumstances, I do not see that the motion would invite costs on a substantial indemnity basis.

11To suggest that the preparation of the materials and attendance at the motion would take 54.8 hours for a lawyer competent enough to charge $350.00 per hour, is nothing short of fanciful. Those hours would be extravagant for an articling student let alone an experienced litigator.

12Given that Ms. Ricci has filed a costs outline totally $9,424.22, she would be well aware of the costs in that range if she were successful. However, that amount is her actual rate; her partial indemnity costs are suggested to be $4,845.40.

13Taking all of the factors into consideration, I find that Mr. Andrzejewski should receive costs fixed in the amount of $10,000.00.

14As I said in my endorsement, I cannot tell which of these two are telling the truth. Clearly, one is not. That is for the trial judge. In those circumstances, these costs shall be paid after trial or other resolution of the file.