Court File and Parties

Court File No.: CV-18-594616 Date: 2019-10-17 Superior Court of Justice - Ontario

Re: TINA JAYNE DUNCAN, Plaintiff And: MARNEE BUCKLES AND ROBERT LEPP, Defendants

Before: Schabas J.

Counsel: Gwendolyn L. Adrian, for the Plaintiff Carlo Di Carlo, for the Defendant Marnee Buckles Robert Lepp, for himself

Heard: August 26, 2019

Costs Endorsement

[1] In my Endorsement in this matter, released on September 27, 2019, I requested costs submissions from Ms. Duncan and Mr. Lepp, which I have now received.

[2] The Court has a broad discretion when determining the issue of costs. Rule 57.01 (1) sets out factors to be considered to achieve a result that is fair and reasonable for the unsuccessful party to pay, and is not fixed to actual costs incurred by the successful litigant: Boucher v. Public Accountants Counsel for Ontario, 2004 ONCA 14579.

[3] In this case, the defendant Lepp was unsuccessful in his motion to have his noting in default set aside. Indeed, I found that he had flouted the Rules of Civil Procedure and had attempted to “bully” his way out instead. These are factors supporting an elevated award of costs, as are offers by Duncan to permit Lepp to have the noting in default set aside at an early stage for a nominal payment, which were rejected by him.

[4] Lepp also chose to bring a cross-motion under s. 137.1 of the Courts of Justice Act (the “anti-SLAPP” motion) while noted in default. This put the plaintiff to considerable additional expense in responding to that motion, including filing evidence and argument and appearances in Civil Practice Court.

[5] Lepp’s conduct meddling in this dispute between two neighbours simply escalated matters and his conduct towards the plaintiff and her counsel is worthy of sanction and an elevated award of costs. Indeed, from the material provided to me on the costs issue, it appears Lepp’s conduct of attacking the plaintiff and her counsel is continuing.

[6] Lepp’s main response to the request for costs is that I erred in not hearing his anti-SLAPP motion first given the impact of ss. 137.1(5) and ss. 137.2(2), which halts all other steps in an action and requires a decision on the motion within 60 days. However, that ignores the operation of Rule 19.02 which bars any other step being taken by a defendant noted in default “except with leave of the court.” Accordingly, Lepp’s anti-SLAPP motion could not proceed without first setting aside the noting in default, and that was how I proceeded, without objection, on August 26, 2019.

[7] Having made these findings, the plaintiff very reasonably only seeks an award of $18,000, which is only slightly above her partial indemnity costs of $15,937.41 and well below her substantial indemnity figure of $25,297.88.

[8] Mr. Lepp shall pay costs to the plaintiff of $18,000 inclusive of disbursements and HST.

Schabas J.

Date: October 17, 2019