Court File and Parties

COURT FILE NO.: CV-13-4850-00B1 DATE: 2019 12 18 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: APARNA SANWALKA, personally, DIYAH SANWALKA, and PATRICK ROY SANWALKA HARRIS, minors, by their Litigation Guardian, APARNA SANWALKA Plaintiffs

– and –

THE REGIONAL MUNICIPALITY OF PEEL and PEEL HOUSING CORPORATION Defendants

AND BETWEEN:

BI-VIEWS BUILDING SERVICE LTD., operating as BIVIEW BUILDING SERVICE LTD., BIVIEW BUILDING SERVICES LTD. and BIVIEW BUILDING SERVICES, JOE PACE & SON CONTRACTING LIMITED, JOE PACE & SON CONTRACTING INC. and INNOVATIVE CONTENT SOLUTIONS INC. Third Parties

– and –

TRIPLE A CONTRACTING AND RESTORATION LIMITED and BARRAGER’S CLEANERS LIMITED Fourth Parties

BEFORE: EMERY J.

COUNSEL: S. Juzkiw for the Plaintiffs S. Inkol for the Defendants E. Turkienicz for the Bi-View Third Parties R. Coughlin for the Third Party, Innovative Content Solutions Inc. W. Samson for the Fourth Party, Barrager’s Cleaners Limited

HEARD: In writing

Endorsement on Costs

Emery J.

[1] I have now received submissions on costs from the Regional Municipality of Peel and Peel Housing Corporation (“Peel”), Bi-Views Building Service Ltd. operating as Bi-View Building Services Ltd., Bi-View Building Service Ltd. and Bi-View Building Services (“Bi-View”) and submissions on behalf of the plaintiff Aparna Sanwalka on the two motions heard on October 22, 2019.

[2] Peel seeks its costs on a substantial indemnity basis for a total of $5,483.92. In the alternative, it seeks those costs on a partial indemnity basis in the amount of $4,215.29.

[3] Bi-View seeks its costs in the nominal amount of $750, related solely to attending before the court that day.

[4] The plaintiff Aparna Sanwalka also claims her costs of the motions, seeking $3,972 on a partial indemnity basis.

Guiding Principles

[5] Costs are generally awarded to a party who was successful or who achieved greater success than other parties on a motion. Many orders requested by the plaintiff Aparna Sanwalka in her motion overlapped orders requested by Peel in its motion. All but two of those orders were granted on consent, and two orders on Peel’s motion were not made on consent. The primary issue argued by the parties that day arose from the order Ms. Sanwalka requested in her motion for accommodations she was seeking for her continued examination for discovery. That part of the motion was dismissed, making Peel, and by extension Bi-View, the more successful parties on that motion.

[6] A judge has discretion to award costs for a motion under section 131 of the Courts of Justice Act. This discretion is subject to any rule of court. Rule 57.01 of the Rules of Civil Procedure provides factors that the court must consider when awarding costs. Those factors under Rule 57.01(1) are as follows:

(0.a) the principle of indemnity, including, where applicable, 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;

(0.b) 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;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs. R.R.O. 1990, Reg. 194, r. 57.01 (1) ; O. Reg. 627/98, s. 6; O. Reg. 42/05, s. 4 (1); O. Reg. 575/07, s. 1.

[7] The court will apply those factors relevant to the particular motion or step in the proceeding for which costs are claimed to determine which party is entitled to costs, the scale of those costs, and the amount of the award.

[8] Costs awarded in a particular matter must have a rational purpose. The Court of Appeal in Fong v. Chan identified the three fundamental purposes in the modern rules for awarding costs:

1. To indemnify successful litigants for the cost of litigation;
2. To encourage settlement; and
3. To discourage and sanction inappropriate behaviour by litigants.

[9] In terms of deciding the amount of costs to order, the overarching principle that guides the court is that the amount must be fair and reasonable: Boucher v. Public Accountants Council for the Province of Ontario. In Boucher, the court stated the overall principle that the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay, rather than the actual legal fees that a successful party has incurred.

[10] I shall now proceed to consider the issues of entitlement, scale and amount of any costs to award on the two motions with these principles in mind.

Entitlement

[11] Peel takes the position that the plaintiff Aparna Sanwalka delayed taking the necessary steps required of her to advance the action she had brought on her behalf, and at the time, as litigation guardian for Diyah and Patrick. Peel submits that counsel for the plaintiffs was largely unresponsive to requests to take steps to move the action forward.

[12] At the first case management conference on July 4, 2019, I set October 22, 2019 as the date to hear all motions that any of the parties intended to bring. A timetable was set for the service of motion materials and other steps leading up to the hearing date. Peel states that it brought its own motion in the absence of receiving motion materials from the plaintiffs by the date required under the timetable. Peel describes the relief it was seeking as an order that the plaintiffs comply with their obligations in the case under the Rules.

[13] The plaintiffs served their own motion in which they requested a timetable and terms of accommodation for the examination for discovery of the plaintiff Aparna Sanwalka to continue. Peel states that the late service of the plaintiffs’ motion required its counsel to incur the extra time and expense to prepare and file a second motion record to respond to that motion.

[14] The plaintiffs submit that many of the orders requested in Peel’s motion were unnecessary. They submit that their counsel had written to all counsel addressing various “housekeeping” matters that were ultimately found in the Reasons for Decision to have been granted on consent. Counsel for the plaintiffs also advised the adverse parties that he believed that Aparna Sanwalka still wanted accommodations for her continued examination for discovery, but would confirm those instructions. Counsel for the plaintiffs takes the position that the only matter the parties should have had to argue on a contested basis was the accommodation issue on the plaintiffs’ motion.

[15] In paragraph 10 in my Reasons for Decision, I noted that many of the orders requested in the plaintiffs’ motion overlapped with relief requested in Peel’s motion. Those orders were generally granted on consent at the hearing of the motion, and the orders that were not made on consent in paragraph 9, although contested by the plaintiffs, were not strenuously opposed.

[16] The primary issue on which most materials were filed, and which took the greater amount of time on the five hour attendance before me on October 22, 2019, was the motion made by the plaintiff, Aparna Sanwalka for five terms of accommodation for her continued examination for discovery. That motion was dismissed.

[17] In my view, Peel was the more successful party on the motions before the court on October 22, 2019 because those defendants prevailed on the plaintiffs’ motion. By extension, the third parties known collectively as Bi-View shared that success. Bi-View has an interest in the conduct of Ms. Sanwalka’s examination for discovery as a party having an adverse interest. This principle is recognized in Air Canada v. Meridien Credit Corp. Canada, [1985] O.J. No. 1692 (District Court). Accordingly, Bi-View was entitled to participate on any motion that effects how that examination for discovery is conducted.

[18] I also consider Peel to be entitled to the costs of preparing the motion materials for its own motion and for having to prepare a responding affidavit for those matters resolved on consent and the two orders that were made without consent but without much opposition. Again, in my view, Peel brought its motion up against the deadline set at the first case conference for motions to be heard on October 22, 2019. The fact that counsel for the plaintiffs offered a reassurance in correspondence that immediate steps would be taken to propel the action forward on its merits without a motion provided little comfort to Peel. It is quite understandable why Peel brought its motion for fear that waiting further would only compound the delay already encountered. In a word, the answer to delay is not more delay.

[19] I therefore find that it was necessary for Peel to bring its own motion. I also find that Peel was the successful party on the plaintiffs’ motion with respect to the request for accommodations. Peel is therefore entitled to its costs for both motions. Bi-View is entitled to its costs for attending on the motions. The plaintiffs’ claim for costs is dismissed.

Scale

[20] When costs are awarded, they are ordinarily awarded on a partial indemnity basis in Ontario. Costs at an elevated level are not normally awarded unless the party claiming costs can establish the party against whom costs are claimed has behaved in a reprehensible or egregious manner to the point of offending the sensibilities of the court. A party may also claim costs on an elevated basis where the terms of an offer to settle that a party has served entitles that party to claim costs on a higher scale under the Rules, or is enabled by statute: Davies v. Clarington (City of), 2009 ONCA 722.

[21] There is no allegation here of bad conduct or behaviour to claim costs on a substantial indemnity basis.

[22] Neither party has brought an offer to settle served on this motion to my attention to merit an award of elevated costs on that ground.

[23] For these reasons, the costs I am awarding to Peel and to Bi-View are granted on a partial indemnity basis.

Amount

[24] I have considered the factors in Rule 57.1(1) as well as the overarching principle that an award for costs must be fair and reasonable. One way recognized by the authorities to determine what amount would be fair and reasonable is to determine what amount the party who is to pay those costs could reasonably expect to pay.

[25] In the plaintiffs own submissions, they claimed costs of $3,972 for the two motions on a partial indemnity basis, payable within 30 days or in any event of the cause. I consider this to be a reasonable measure of what the plaintiffs could reasonably expect to pay for costs if they were unsuccessful.

[26] I do not think it would be fair to make an order for costs against Diyah because she now represents herself and did not appear on the motions. A costs order should not be made on these motions against Patrick, who is now represented by his grandparents, Shashi and Rama Sanwalka. These motions were argued without their involvement, and I therefore attribute no success on these motions to or against them.

Costs Award

[27] I am therefore awarding costs to Peel in the amount of $2,500 all inclusive on a partial indemnity basis, and a further $750 to Bi-View for these motions, only as against the plaintiff Aparna Sanwalka. The sum of these costs is less than what Ms. Sanwalka was claiming if she was found to be the successful party, and I find these set of costs fair and reasonable under the circumstances. I acknowledge that Ms. Sanwalka’s counsel has made representations about her difficult financial circumstances. Although the general rule is to order costs payable within 30 days, I am giving her until March 31, 2020 to pay each set of costs.

Emery J.

Released: December 18, 2019