Court File and Parties

COURT FILE NO.: CV-20-00635983 DATE: 20201123

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Lori Abittan, Applicant

• and -

Karrilyn Wilcox, Respondent

BEFORE: F.L. Myers J.

COUNSEL: Blair W.M. Bowen, for the applicant Karrilyn Wilcox, on her own behalf

READ: November 23, 2020

COSTS endorsement

[1] By endorsement dated November 9, 2020, reported at 2020 ONSC 6836, I granted this application to enforce an arbitration award. The endorsement was erroneously labeled, “Case Conference Endorsement”. In fact, the proceeding was scheduled and heard on its merits as a regular opposed application. It was not resolved at a case conference.

[2] In my endorsement, I reserved the issue of costs and invited written submissions that I have now received.

[3] The applicant seeks costs on a partial indemnity basis of $4,968.45 all-inclusive. The respondent has requested that she be paid costs notwithstanding the outcome of the proceeding. She seeks the sum of $43,800.72.

[4] The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c)). Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario), 2004 14579 (ON CA), (2004), 71 O.R. (3d) 291, at paras 26, 37.

[5] Ms. Wilcox is a self represented litigant. While she is able to express herself well and clearly conveys her conviction and sincerity, she does not appreciate the limited scope of this proceeding. She has submitted arguments concerning her efforts in 2019 to negotiate a purchase or sale of her share of the underlying business to the applicant. She characterizes the applicant's position in those negotiations as unreasonable. She alleges that the applicant committed wrongdoing which left her in financial distress.

[6] All of this may be true. I have no doubt that Ms. Wilcox believes she has been mistreated and may have claims against the applicant. Ms. Wilcox tried to turn the application into a re-assessment of the merits that were before the arbitrator and raised these additional issues that have yet to be litigated. I ruled that none of it was appropriately considered in the application that was before the court.

[7] The applicant was required to bring this proceeding to enforce the arbitrator’s decision. The amount that she seeks in costs is very reasonable and amounts to just over 10% of the amount sought by the respondent. I do not see any indication that the applicant litigated inappropriately despite Ms. Wilcox’s allegation that she played “hardball” in the proceeding. Ms. Abittan was entitled to enforce the arbitrator’s main award and his costs award without consideration of the extraneous issues raised by Ms. Wilcox.

[8] Financial hardship can be a ground that can be considered in a costs proceeding. However, the amount claimed is so modest that possible hardship is not a significant factor. Ms. Wilcox chose to resist the proceeding. The hours and rates claimed by the applicant for her counsel are very reasonable in my view. The amount of costs now sought was readily within a reasonable person’s contemplation and certainly was in Ms. Wilcox’s contemplation as a possible outcome given that she claims so much more.

[9] Costs normally are awarded to the successful party barring a strong reason to exercise the discretion to hold otherwise. As noted in my prior decision, I do not dismiss or make any judgment at all on Ms. Wilcox’s allegations against the applicant. To this point, Ms. Wilcox has not brought proceedings to advance those claims as far as I am aware. I understand that the task of doing so is daunting in light of her financial situation at minimum. However, submitting that one has unproven claims against the successful applicant is not an answer to her claim to be entitled to costs.

[10] In my view, the applicant’s success entitles her to receive costs from the respondent. Accordingly, the respondent shall pay the applicant’s costs that I fixed in the amount of $4,968 all inclusive.

_______________________________ F.L. Myers J.

Date: November 23, 2020