COURT FILE NO.: 17-74899
DATE: 2019/01/18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Valérie Simard and Alexandre Noppen
Applicants
– and –
Douglas Traynor, Gérald Gobeille and Diane Traynor
Respondents
Self-represented
Patrick R. Simon for the Respondents
Heard: In Writing
reasons for decision regarding the issue of costs
o’bonsawin J.
[1] On December 19, 2018, I released my Reasons for Decision and dismissed the Applicants’ Application. In my Reasons for Decision, I stated: “If the parties cannot agree as to costs, they may provide my office with brief written submissions on costs not exceeding three pages, exclusive of the Bill of Costs.” The parties did not agree on the issue of costs and they provided me with their written submissions. These are my Reasons for Decision regarding the issue of costs.
[2] The Respondents provided me with a Bill of Costs. Costs are listed at a partial indemnity amount of $15,148.10, a substantial indemnity amount of $20,311.48 and actual fees in the amount of $22,523.86. These amounts include all fees, HST and disbursements. Counsel listed a team of three people including Mr. Simon, a law clerk and a student.
[3] The over-riding principle in awarding costs is of the reasonable expectation of the unsuccessful party, taking into consideration the factors set out in Rule 57 of the Rules and the Court’s inherent discretion as per sub-section 131 of the Court of Justice Act.
[4] A successful party is presumptively entitled to costs in a reasonable amount (Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA) at 302 [Boucher]). The amount awarded is intended to be fair and reasonable for the unsuccessful party, but not fixed by the actual costs incurred by the successful party (Boucher at paras. 24, 26).
[5] The Court has discretion to award costs pursuant to s. 131 of the Courts of Justice Act, and Rule 57.01 of the Rules (Goldman v. Weinberg, 2017 ONSC 4743 at para. 4 (citing Chandra v. CBC, 2015 ONSC 6519)). Rule 57.01(1) sets out a number of factors to be considered in determining costs.
[6] Parties often argue that costs should follow the event. This was confirmed in Schreiber v. Mulroney, 2007 CanLII 31754 (ON SC), [2007] O.J. No. 3191 (Sup.Ct.) at para. 2. Substantial indemnity costs are the exception to the rule.
[7] The Applicants argue that they should not be penalized with costs for attempting to enforce a registered easement and registered restrictive covenant. Consequently, each party should bear its own costs.
[8] The Respondents, on the other hand, argue that given my conclusion, with particular attention to the finding that the Applicants came to court without clean hands and adopted a retaliatory approach towards the Respondents, they should receive costs to be paid on a substantial indemnity scale.
[9] I have taken into consideration the factors in Rule 57.01(1), for example, the matter was complex, the issues were important to both parties and the fact that I found that the evidence supported that the Applicants adopted a retaliatory approach towards the Respondents following the objection to the proposed renovation of 2014. I have also considered all of the caselaw provided to me by the parties. I find that the costs sought by the Respondents are reasonable.
Consequently, I exercise my discretion and award reasonable costs in the amount of $20,311.48.
Justice M. O’Bonsawin
Released: January 18, 2019
COURT FILE NO.: 17-74899
DATE: 2019/01/18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Valérie Simard and Alexandre Noppen
Applicants
– and –
Douglas Traynor, Gérald Gobeille and Diane Traynor
Respondents
reasons for decision
O’Bonsawin J.
Released: January 18, 2019