BARRIE COURT FILE NO.: CV-17-746

DATE: 20190206

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Geoffrey Cairns and Christine Cairns, Plaintiffs

AND:

Karen Louise O’Neil and Jacob O’Neil, Defendants

BEFORE: The Hon. Mr. Justice G.M. Mulligan

COUNSEL: C. Baker, Counsel for the Plaintiffs

Karen Louise O’Neil and Jacob O’Neil, Defendants, Self-Represented

HEARD: By written submissions

COSTS ENDORSEMENT

[1] This matter proceeded by way of a three-day non-jury trial, which concluded on November 23, 2018. For reasons issued on December 12, 2018, the plaintiffs received a judgment of $30,000 against both defendants, together with an order for vacant possession of property known as 35 Goodwin Drive, Barrie. With respect to costs, I noted at para. 60 of the decision that “the plaintiffs have achieved substantial success with respect to their claim.” The parties were invited to reach a settlement as to costs, however, no agreement has been reached. Costs Submissions have now been received from the plaintiffs, through their counsel, and from the defendants, who were self-represented at trial.

[2] The Costs Submissions indicate that the plaintiffs made a timely r. 49 offer to settle the matter on November 2, 2018, which can be summarized in part as follows:

That the defendants would vacate 35 Goodwin Drive by January 31, 2019, providing vacant possession to the plaintiffs, that the defendants would agree to a dismissal of their claim for constructive trust and for monetary compensation. In return, the plaintiffs would forgive all monies owing by the defendants with respect to loans or rent arrears.

[3] The offer was open until acceptance at trial. The defendants did not accept the offer and the matter proceeded.

[4] The plaintiffs were successful in obtaining a judgment for unpaid rent and unpaid loans owing to the plaintiffs. The defendants received limited success to the extent that they were given credit for $30,000 of improvements to the house during their period of occupancy. This amount was set off against the plaintiffs’ claim for rent and loans of $60,200, resulting in a net monetary award to the plaintiffs of $30,200, together with an order for vacant possession.

[5] I am satisfied that the plaintiffs’ offer to settle was made on a timely basis. Further, the plaintiffs achieved a level of success at trial, more favourable than their r. 49 offer. Therefore, it is appropriate to consider costs on a substantial indemnity basis for the period following the offer to settle.

Costs Sought by the Plaintiffs

[6] The plaintiffs seek costs of $34,333.67, inclusive of HST, broken down as follows:

Partial indemnity costs $19,082.67, up to r. 49 offer

Substantial indemnity costs $13,906.91, after r. 49 offer

Disbursements $1,344.09

[7] I have reviewed the Bill of Costs and dockets provided by the plaintiffs’ counsel. I find the time spent and hourly rates reasonable under the circumstances for a solicitor called to the bar in 1990.

[8] Part of the costs sought include sums paid by the plaintiffs to their previous counsel and these are incorporated in the global sum now sought.

[9] The defendants, who were self-represented at trial, made written submissions which were not responsive to the costs sought by the successful parties. In contrast, they sought their own costs of $12,468.24 for a counsel fee for a lawyer who acted for them in earlier stages of the proceedings. That account was not supplied to the court. Although the defendants had some limited success, I cannot determine how that legal account assisted them in any way at trial.

[10] The defendants also seek $60,000 for emotional damage, including claims for slanderous behaviour of the plaintiffs’ lawyer and violation of their human rights. Such claims have no place in a costs submission and are more appropriately dealt with in other forums. The same could be said for the defendant’s comments that “we do not agree or feel that the judgment was fair or reasonable…” It is open to the defendants to appeal the decision if so advised.

[11] The defendant, Karen O’Neil, also states “I do not feel that my husband, Jacob O’Neil, should ever have been included in this proceeding…I’m asking the courts only to have judgment against myself…”

[12] This claim was brought against both defendants. Both defendants appeared in court and gave evidence. Mr. O’Neil gave evidence about work done on the property, which in large measure, accounted for the award of $30,000 to the defendants for the improvements resulting in a set-off in reduction of amount owing by both defendants to both plaintiffs. Mr. O’Neil indicated in court that he was as responsible for this claim as was his spouse. Further, he declined to make any submissions at the close of trial. If Mr. O’Neil is unsatisfied with the judgment against him, he is entitled to appeal it.

Analysis

[13] It is well settled that s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides considerable judicial discretion on the issue of fixing costs. Rule 57.01 of the Rules of Civil Procedure sets out various factors that the court can consider in exercising this discretion, including the principle of indemnity, the amount of costs an unsuccessful party would expect to pay, the complexity of the proceeding and the importance of the issue. See Boucher v. Public Accountants Council for the Province of Ontario (2002), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).

Plaintiffs’ Costs

[14] Rule 49.10(2) provides that the plaintiff is entitled to partial indemnity costs to the date of the offer, unless the court orders otherwise. The awarding of costs is a discretionary exercise.

[15] It is clear from the plaintiffs’ offer to settle that the essence of what they were seeking was vacant possession of their property on a timely basis by the defendants. They were prepared to give the defendants time to vacate the property and they were prepared to withdraw any claim for loans or rent. They were successful in getting vacant possession at trial and a monetary award for a portion on their loans and rent after set-off was applied. Under these circumstances, I am satisfied that an award of $34,333.67, inclusive of HST and disbursements, is fair and reasonable under the circumstances, payable by the defendants, Karen Louise O’Neil and Jacob O’Neil to the plaintiffs, Geoffrey Cairns and Christine Cairns, within 30 days of the release of this endorsement.

MULLIGAN J.

Date: February 6, 2019