Court File and Parties

Court File No.: CV-18-592247 Date: 20190116 Ontario Superior Court of Justice

Between: JODI L. FELDMAN PROFESSIONAL CORPORATION for itself and on behalf of all creditors of Lynne Catherine Foulidis, Plaintiff – and – LYNNE CATHERINE FOULIDIS and KONSTANTINOS FOULIDIS also known as DANNY FOULIDIS, Defendants

Counsel: Sean N. Zeitz, for the Plaintiff L. Leslie Dizgun, for the Defendants

Heard: Written Submissions

Costs Endorsement

Diamond J.

[1] At the conclusion of my Endorsement released on December 14, 2018, I asked the parties to serve and file written submissions pursuant to a fixed schedule in the event they were unable to resolve the costs of both the appeal and the original motion before the Master. No agreement was reached, and I have now received and reviewed the written costs submissions from both parties.

[2] The plaintiff seeks its costs of the appeal (including the time spent preparing and delivering costs submissions) on a partial indemnity basis in the total amount of $17,077.79. The plaintiff also seeks its costs of the original motion before the Master fixed on a substantial indemnity basis in the amount of $27,232.76.

[3] The defendants submit that costs of both the appeal and the motion before the Master should be reserved to the trial judge, or payable in the cause. Alternatively, the defendants propose different amounts for the plaintiff’s costs of the appeal and the motion before the Master, and ask for an order that both sets of costs be payable after the trial and in any event of the cause. In support of that position, the defendants argue that any award of costs payable now would substantially prejudice Lynne’s ability to defend the claim given her inability to afford any costs award at this time.

[4] I agree with the defendants that a party’s inability to pay a costs award is a factor to be considered by the Court when exercising its discretion under Rule 57.01 of the Rules of Civil Procedure. Lynne’s evidence in support of her position that she is, effectively, impecunious is found in paragraph 4 of her affidavit sworn August 8, 2018:

“I was, and continue to be, under significant financial and economic strain. Since my separation, I have become impoverished, and have been forced to resort to food banks and shelter for food. My financial situation was, is, and continues to be desperate. I have no sources of income other than the money given to me by George. My only significant asset is the matrimonial home at 17 Airley Crescent, Toronto.”

[5] Typically, costs follow the event. On a successful appeal, costs are usually ordered in favour of the appellant to reimburse him/her for both the original motion and the appeal. That said, there appears to be some merit to the defendants’ position, as the evidence of the plaintiff itself confirmed that it always intended to look to the equity in the matrimonial home to satisfy its legal accounts from Lynne. In fact, this is part of the factual matrix supporting the plaintiff’s theory of the case. Now that the appeal was allowed, and a CPL will be (or perhaps has been) registered against title to the matrimonial home, that asset is effectively “frozen” and Lynne will likely not be in a position to access the equity in the property until a settlement or judgment is rendered in this proceeding.

[6] In my view, the just, reasonable and proportionate result in the circumstances of this case is to award the plaintiff its costs of both the appeal and the original motion in any event of the cause, but payable after the trial has concluded.

[7] This leaves the issues of scale and quantum of costs. I have no difficulty in awarding the costs of the appeal on a partial indemnity basis. I have reviewed the plaintiff’s costs outline, and in my view subject to the charged partial indemnity hourly rate being slightly high, the hours claimed therein are reasonable. Bearing in mind that I am to arrive at a fair and reasonable result with a view to balancing the compensation of a successful party with the overall goal of fostering as it is suggested, I award the plaintiff its costs of the appeal in the all-inclusive amount of $12,500.00.

[8] With respect to the original motion before the Master, the plaintiff seeks those costs on a substantial indemnity basis, citing the defendants’ “inappropriate and irrelevant references to regulatory proceedings between the Law Society of Ontario and the plaintiff”, allegedly included in the defendants’ responding materials to “embarrass the plaintiff by rehashing events from a decade earlier.”

[9] While the defendants may have included this particular evidence as part of the “narrative”, I agree in principle with the plaintiff that such evidence was essentially irrelevant. That said, I am not prepared to exercise my discretion to award a higher scale of costs in the circumstances.

[10] Having reviewed the plaintiff’s costs outline, and again mindful of my obligations as set out above, I award the plaintiff its costs of the motion before the Master in the all-inclusive amount of $17,500.00. As stated, both costs awards are ordered payable in any event of the cause after the trial is concluded.

[11] Order accordingly.

Diamond J. Released: January 16, 2019