COURT FILE NO.: 19-78797
DATE: 20200110
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
John Przybytek
Applicant
AND
3002071 Canada Inc.
Respondent
AND BETWEEN:
3002071 Canada Inc.
Applicant
AND
John Przybytek
Respondent
George Boyd Aitken, Counsel for the Applicant
Claude-Alain Burdet, Counsel for the Respondent
Claude-Alain Burdet, Counsel for the Applicant
George Boyd Aitken, Counsel for the Respondent
HEARD: In writing
costs endorsement
H.J. Williams, J.
Overview
[1] The applicant, John Przybytek, brought an application to discharge a $50,000.00 mortgage registered by the respondent, 3002071 Canada Inc., against Mr. Przybytek’s interest in a cottage property.
[2] Mr. Przybytek was successful on the application; I found the respondent’s mortgage to be invalid and unconscionable and ordered it to be discharged.
[3] At the conclusion of my reasons for decision on the application, I provided the parties with a timetable for delivery of costs submissions and directed that they be filed with the Ottawa trial coordinator. The submissions were to have been filed in October and November 2019.
[4] On October 18, 2019, Mr. Przybytek’s lawyer filed submissions in accordance with my directions. I received no responding submissions from the respondent’s lawyer, Claude-Alain Burdet and no submissions from Mr. Przybytek in reply that might have suggested that Mr. Przbytek’s lawyer had received submissions from Mr. Burdet.
[5] On January 2, 2020, my judicial assistant contacted both counsel to inquire about Mr. Burdet’s submissions. Mr. Burdet informed my assistant that he had delivered submissions. My assistant asked him to forward them to her immediately. On January 3, 2020, Mr. Przybytek’s lawyer, Boyd Aitken, informed my assistant that he had not received any submissions from Mr. Burdet in response to his submissions of October 18, 2019.
[6] I proceeded to prepare a costs endorsement. On January 7, 2020, as my assistant was about to release an earlier version of this endorsement, she received by email costs submissions from Mr. Burdet. The submissions were dated November 3, 2019.
[7] Because of the nature of the decision in this endorsement, I do not, at this time, propose to wait for reply submissions from Mr. Przbytek before releasing it.
[8] Mr. Przybytek is asking for costs of his application on a substantial indemnity basis. He is requesting fees of $27,713.00 plus HST of $3,602.69. He is also asking for disbursements, inclusive of HST, of $2,952.43.
[9] Mr. Przybytek is also asking for a joint and several costs order against three persons: (1) the respondent; (2) 1457563 Ontario Inc., a co-applicant with the respondent in an application against Mr. Przybytek; and (3) Mr. Burdet.
[10] Mr. Przybytek relies on Rule 57.07(1) of the Rules of Civil Procedure in support of his request for an order against Mr. Burdet. However, Rule 57.07(3) provides that a court may not make an order under Rule 57.07(1) “unless the lawyer is given reasonable opportunity to make representations to the court.”
[11] Although the respondent, in its costs submissions, responded to Mr. Przybytek’s request under Rule 57.07(1) by arguing that the rule has more application to Mr. Przybytek’s law firm than to Mr. Burdet, I have concluded that I should not decide the issue without first giving Mr. Burdet an opportunity to retain counsel and to participate in a hearing. Mr. Burdet may also wish to contact his professional liability insurer.
[12] Because of the delay that will be associated with his request under Rule 57.07(1), Mr. Przybytek may prefer to withdraw the request. In accordance with the following timetable, Mr. Przybytek shall have the option of withdrawing his Rule 57.07(1) request. If Mr. Przybytek confirms the request, Mr. Burdet shall then have the option of requesting a hearing:
Within 14 days, Mr. Przybytek shall either withdraw or confirm his request for an order for costs against Mr. Burdet personally. He shall do so by writing to me, care of the Ottawa trial coordinator, with a copy to Mr. Burdet.
If Mr. Przybytek withdraws his request, he may, at the same time, file submissions in reply to the submissions filed by Mr. Burdet on January 7, 2020. I will then prepare and release my costs decision.
If Mr. Przybytek confirms that he wishes to seek costs against Mr. Burdet personally, within 14 days, Mr. Burdet shall have the opportunity to request from the trial coordinator a three-hour hearing before me, on a date after March 15, 2020, for oral submissions regarding the costs of the application and whether costs should be awarded against Mr. Burdet personally. This will provide Mr. Burdet with a reasonable opportunity to contact his professional liability insurer and to retain counsel, should he choose to do either, and to prepare to make representations to the court. Any additional written materials Mr. Przybytek may wish to deliver shall be delivered no less than 30 days before the hearing date; any responding materials Mr. Burdet may wish to deliver shall be delivered no less than seven days before the hearing date. Any written materials shall be filed by sending them to the trial coordinator, to my attention.
If Mr. Przbytek confirms that he wishes to seek costs against Mr. Burdet personally and Mr. Burdet does not request a hearing before me within 14 days, I will then prepare and release my costs decision.
Madam Justice H. J. Williams
Date: January 10, 2020
COURT FILE NO.: 19-78797
DATE: 20200110
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
John Przybytek
Applicant
AND
3002071 Canada Inc.
Respondent
AND BETWEEN:
3002071 Canada Inc.
Applicant
AND
John Przybytek
Respondent
BEFORE: Madam Justice H.J. Williams
COUNSEL:
George Boyd Aitken, Counsel for John Przybytek
Claude-Alain Burdet, Counsel for 3002071 Canada Inc.
costs endorsement
Madam Justice H. J. Williams