COURT FILE NO.: CV-18-0132
DATE: 2019/04/25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KEVIN WILLIAM CARR and JACQUELINE ANN CARR
Plaintiffs
- and -
LIONEL RIVET
Defendant
AND B E T W E E N:
LIONEL RIVET
Plaintiff by counterclaim
- and -
KEVIN WILLAM CARR, JACQUELINE ANN CARR, BRIAN PURVIS GRAHAM, and 2306024 ONTARIO LTD. c.o.b. as ROYAL LEPAGE NORTH BAY REAL ESTATE SERVICES
Defendants to the counterclaim
Counsel:
Thomas Davis, for the Plaintiffs
Lionel Rivet, Self-represented
Erin Hoops, for the Defendants Brian Purvis Graham and Royal Lepage North Bay Real Estate Services
HEARD: In chambers
REASONS FOR DECISION ON COSTS
ellies j.
[1] For reasons released on March 12, 2019 (2019 ONSC 1546), I dismissed Mr. Rivet’s motion to discharge a certificate of pending litigation (a “CPL”) registered against his property. I invited the parties to make written submissions on costs if they could not come to an agreement on that issue. I have now received and reviewed those submissions.
[2] Mr. Rivet submits that the parties should bear their own costs or, alternatively, that the issue of costs should be referred to the trial judge after a full hearing. I see no reason to do either. Contrary to Mr. Rivet’s submissions, he did not achieve “partial success” on the motion. The fact that the defendants, Brian Purvis Graham and 2306024 Ontario Ltd., took no position on the motion does not equate to partial success.
[3] Nor do I accept Mr. Rivet’s submission that the offers to settle made by the plaintiffs essentially amounted to requesting a CPL by another name. As I will explain, the most recent offers were significantly less restrictive than a CPL.
[4] On behalf of the plaintiffs, Mr. Davis seeks substantial indemnity costs in the amount of $5,011.43. He relies on r. 49 of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194 and on several offers to settle that were served upon Mr. Rivet prior to the hearing of the motion. He submits, correctly in my view, that Mr. Rivet failed to do as well as or better than the plaintiffs’ offers to settle. In each of the offers, the plaintiffs proposed that the CPL be discharged. All of the offers included a term that Mr. Rivet not be permitted to transfer or encumber title to the property. The two most recent offers, made on February 20 and February 22, 2019, provided an exception to this term, permitting Mr. Rivet to obtain a second mortgage in the amount of $60,000 (see para. 15 of my reasons).
[5] None of these offers were accepted and the matter was heard on March 1, 2019. As a result of my decision, the CPL remains on title and Mr. Rivet can only encumber or dispose of the property subject to the interest of the plaintiffs. It is unlikely that he will be able to do either while the CPL remains on title. In my view, therefore, Mr. Rivet did not do as well on the motion as he would have done had he accepted the plaintiffs’ most recent offers.
[6] Nonetheless, Mr. Rivet’s failure to accept the plaintiffs’ offers does not attract the costs consequences urged by Mr. Davis.
[7] Rule 49.10 provides as follows:
Plaintiff’s Offer
49.10 (1) Where an offer to settle,
(a) is made by a plaintiff at least seven days before the commencement of the hearing;
(b) is not withdrawn and does not expire before the commencement of the hearing; and
(c) is not accepted by the defendant,
and the plaintiff obtains a judgment as favourable as or more favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer to settle was served and substantial indemnity costs from that date, unless the court orders otherwise.
Defendant’s Offer
(2) Where an offer to settle,
(a) is made by a defendant at least seven days before the commencement of the hearing;
(b) is not withdrawn and does not expire before the commencement of the hearing; and
(c) is not accepted by the plaintiff,
and the plaintiff obtains a judgment as favourable as or less favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer was served and the defendant is entitled to partial indemnity costs from that date, unless the court orders otherwise.
Burden of Proof
(3) The burden of proving that the judgment is as favourable as the terms of the offer to settle, or more or less favourable, as the case may be, is on the party who claims the benefit of subrule (1) or (2).
[8] As Mr. Davis correctly submits, r. 49.10 is applicable to motions by virtue of r. 49.02(2). In this case, however, the plaintiffs are the responding parties and are, therefore, in the position of defendants under r. 49.10. Rule 49.10(2) provides that, as defendants, the plaintiffs are only entitled to their partial indemnity costs, not their substantial indemnity costs, after serving an offer to settle that is ultimately not accepted: St. Elizabeth Home Society v. Hamilton (City), 2010 ONCA 280, at para. 90. Costs on a substantial indemnity basis will only be awarded in this situation where the judge finds that the behaviour of the plaintiff (the moving party, Mr. Rivet in this case) was so egregious as to deserve a sanction: Infinium Capital Corp. v. AB2000 Software Corp., 2015 ONCA 829, at para. 41. Even if I accepted the submission that Mr. Rivet acted unreasonably in response to the offers to settle, I would not find that his conduct rose to this level.
[9] However, r. 49.10(2) has no application where the moving party’s motion is dismissed, as it was here: S & A Strasser Ltd. v. Richmond Hill (Town) (1990), 1990 CanLII 6856 (ON CA), 1 O.R. 3d 243 (Ont. C.A.), at p. 245. Instead, the court is free to fix costs having regard to the ordinary principles and the applicable rules, including r. 49.13, which permits the court to take offers to settle into account even where the rules do not dictate a particular result.
[10] Taking the offers into account, I award the plaintiffs their partial indemnity costs, increased somewhat to recognize their efforts to resolve this matter, in the same way the Court of Appeal did in Strasser. Mr. Rivet shall pay the plaintiffs their costs of the motion in the amount of $3,500, inclusive of HST and disbursements, within 30 days.
Ellies J.
Released: April 25, 2019
COURT FILE NO.: CV-18-0132
DATE: 2019/04/25
ONTARIO
SUPERIOR COURT OF JUSTICE
KEVIN WILLIAM CARR and JACQUELINE ANN CARR
Plaintiffs
– and –
LIONEL RIVET
Defendant
LIONEL RIVET
Plaintiff by counterclaim
– and –
KEVIN WILLAM CARR, JACQUELINE ANN CARR, BRIAN PURVIS GRAHAM, and 2306024 ONTARIO LTD. c.o.b. as ROYAL LEPAGE NORTH BAY REAL ESTATE SERVICES
Defendants to the counterclaim
REASONS FOR decision on costs
Ellies J.
Released: April 25, 2019