Court File and Parties

COURT FILE NO.: CVC-17-62315 DATE: 202105 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Joan MacDonald and Joy Ogunro, Applicants AND: Wentworth Condominium Corporation No. 96, Respondent

BEFORE: Justice D.A. Broad

COUNSEL: Joan MacDonald – self represented Joy Ogunro – self-represented Megan Mackey, for the Respondent

COSTS ENDORSEMENT

[1] The parties have been unable to settle the question of costs and have all filed written submissions on costs.

Position of the Respondent

[2] The respondent seeks an order holding both applicants Ms. MacDonald and Dr. Ogunro jointly and severally liable to pay costs on a partial indemnity scale in the amount of $15,857.80. This total is comprised of fees in the sum of $13,024.71, HST on the fees in the sum of $1,693.21, and disbursements in the sum of $1,139.88, inclusive of HST on assessable disbursements.

[3] The respondent seeks to recover costs only in respect of the applicants’ most recent iteration of their motions, being the Notice of Motion dated August 25, 2020, and in respect of the respondent’s motion for an order prohibiting the applicants from bringing further motions in this proceeding without leave of the court.

[4] The respondent does not seek to recover costs from the applicants in respect of previous motions which were brought by them after Goodman J.’s Reasons for Judgment were released on February 20, 2020, being the motions originally returnable March 6, May 20 and June 22, 2020, notwithstanding that the respondent was required to prepare and file materials in response to them and to appear in court on several occasions.

[5] The respondent submits that having the applicant’s pay its partial indemnity costs for only the final motion in their series of motions strikes an appropriate balance between ensuring litigants pay costs of failed litigation without unduly penalizing them.

[6] The respondent submits further that despite the fact that the matters in the Application were fully adjudicated, and are under appeal, the applicant’s chose to bring a series of motions seeking to both re-litigate the matters in the original Application and to seek new relief which was not part of the proceeding. The respondent submits that this represented an abuse of the court’s process which should be censured by requiring the applicants to pay the respondent’s partial indemnity costs.

[7] The respondent submits that it dealt with the applicants’ frivolous and vexatious motions in the most cost-effective way possible and moved to bring an end to the matter expeditiously by obtaining an order prohibiting the applicants from continuing to bring frivolous motions.

[8] The respondent submits that its request for costs is fair and reasonable in the circumstances and the quantum was within the reasonable expectations of the applicants.

Position of the Applicant Joy Ogunro

[9] In response, Dr. Ogunro submits that all of the respondent’s legal costs were covered by its insurer, the premiums for which the applicants contributed to as unit-owners in the condominium.

[10] With respect to the complexity of the proceeding, Dr. Ogunro submitted that the respondent’s conduct forced the applicants to file two interlocutory injunction motions and three additional motions before and after the February 20, 2020 judgment.

[11] She denies that the applicants’ conduct was frivolous and vexatious as they were trying to protect their homes from being sold and terminated, their mortgages from being thrown into default and foreclosure due to the actions of the respondent.

[12] Dr. Ogunro submits that the respondent was not forthright with the applicants and its conduct increased the length of the proceedings.

[13] She also submits that an award of costs must await the conclusion of the proceeding, as success or entitlement cannot be determined before that time. On the basis of the court’s finding that it had no jurisdiction over the subject matter of the applicants’ motion, she says that nothing was adjudicated, and the order does not bind the parties.

[14] Dr. Ogunro submits that she did not file a consent to the order issued by the presiding judge on March 11, 2020 adding her as a party as required by Rule 5.04(3) of the Rules of Civil Procedure. Moreover, there was no joint and several relationship between herself and Ms. MacDonald after August 19, 2019.

[15] Dr. Ogunro submits that the respondent’s claim for costs should be dismissed as against her.

Position of the Applicant Joan MacDonald

[16] Ms. MacDonald denies that she acted in a frivolous or vexatious manner but rather was fighting a foreclosure and a writ of possession to save her family home.

[17] She also points out that the respondent’s legal costs were paid by its insurer, the premiums for which are paid by all of the unit-owners. The respondent is therefore not out of pocket for the costs incurred.

[18] Ms. MacDonald submits that it was the respondent’s unreasonable and unfair conduct that unnecessarily lengthened the litigation, and that she suffered prejudice throughout the litigation and was forced to litigate to save her home.

[19] Ms. MacDonald also submits that she was following the court order to file and serve several notices of motion. The motions were not vexatious or frivolous and did not lack merit as they were brought in good faith to protect her home and assets from being taken unlawfully.

[20] Ms. MacDonald submits that the court did not adjudicate on the two motions argued on March 19, 2021 as the court found that it had no jurisdiction to hear them. She denied that her motions were an attempt to re-litigate or vary the original decision. She submits that her August 25, 2020 motion was not heard to completion and awarding any costs against her with no jurisdiction would represent unfair and unjust enrichment to the respondent.

[21] Ms. MacDonald submits that the applicants’ motions should not be classified as frivolous, vexatious or an abuse of process as they clearly had merit.

Guiding principles

[22] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, provides that "subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.”

[23] The factors to be considered by the court, in the exercise of its discretion on costs, are set forth in sub rule 57.01(1), including, in particular:

(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.

[24] The Court of Appeal has observed that modern costs rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behavior by litigants (see Fong v. Chan, [1999] 2052 (ON CA), [1999] O.J. No. 4600 (Ont. C.A.) at para. 24).

[25] Justice Perrell in the case of 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, [2010] O.J. No. 5692 (Ont. S.C.J.) reformulated the purposes of the modern costs rules, at para. 10, as follows:

(1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage the sanctioning of inappropriate behaviour by litigants in their conduct of the proceedings; and (5) to encourage settlements.

[26] The usual rule in civil litigation is that costs follow the event and that rule should not be departed from except for very good reasons (see Gonawati v. Teitsson [2002] 41469 (ON CA), [2002] CarswellOnt 1007 (Ont. C.A.) and Macfie v. Cater, [1920] 401 (ON SC), [1920] O.J. No. 71 (Ont. H.C.) at para 28).

[27] It is well known that the overall objective in dealing with costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful party. The expectation of the parties concerning the quantum of costs is a relevant factor to consider. The court is required to consider what is "fair and reasonable" having regard to what the losing party could have expected the costs to be (see Boucher v. Public Accountants Council (Ontario), [2004] 14579, [2004] O.J. No. 2634 (Ont. C.A.) at para. 26 and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, [2005] 1042, [2005] O.J. No. 160 (Ont. C.A.)).

Discussion

[28] As indicated, the respondent seeks costs only in respect of the applicants’ most recent motion dated August 25, 2020 and the respondent’s motion for an order preventing the applicant’s from bringing further motions in the proceeding without leave. The respondent does not seek costs with respect to three previous motions brought after the release of Goodman, J.’s Reasons for Judgment on February 20, 2020.

[29] As stated above, the usual rule in civil litigation is that costs follow the event and that rule should not be departed from except for very good reasons. The respondent was the successful party in respect of both motions for which it seeks costs.

[30] I do not accept the applicants’ submission that since it was found that the court lacked jurisdiction to grant the relief sought by the applicants in their motion no costs should be awarded. The applicants’ motion was dismissed because the court lacked jurisdiction.

[31] I find that there is no basis to depart from the usual rule that costs should follow the event.

[32] I also do not accept the applicants’ submission that the respondent is not entitled to costs of the motions as its legal costs have been paid throughout by its insurer. The respondent’s insurer is entitled to seek costs of the motions in respect of which it was successful.

[33] I am unable to accept Dr. Ogunro’s submission that she should not be liable for costs as she did not provide a written consent on March 11, 2021 to be reinstated as an applicant in the proceeding.

[34] S. 131(1) of the Courts of Justice Act the court may determine by whom and to what extent the costs shall be paid. Notwithstanding that Dr. Ogunro had previously sought and obtained her removal as a party to the proceeding, she nevertheless brought the August 25, 2020 motion along with Ms. MacDonald after the February 20, 2020 judgment. On March 11, 2021 Dr. Ogunro sought to be reinstated as a party which request was granted by Justice Goodman, subject to the stipulation that she thereby exposed herself to an award of costs if unsuccessful.

[35] Dr. Ogunro filed material and participated fully in the argument of the motions on March 19, 2021 and made extensive submissions.

[36] In my view, in all of the circumstances the respondent is entitled to look to both applicants including Dr. Ogunro for recovery of costs of the motions.

[37] Neither applicant took any issue with respect to the amount claimed by the respondent on a partial indemnity basis, and in particular took no issue with the hours spent by counsel for the respondent nor the hourly rates utilized.

[38] I find that the quantum of costs claimed by the respondents on a partial indemnity basis is proportionate and fair and should have been within the reasonable expectation of the applicants.

[39] As noted above, the respondent seeks costs against both applicants on a joint and several basis.

[40] In Orkin, The Law of Costs, Second Edition at paragraph 208.1.1, as cited in the case of Makuz v. R., 2006 CarswellNat 3375 (Tax Ct.), it is stated:

The usual rule is that the liability of unsuccessful plaintiffs for costs is joint and several, unless the court in the exercise of its discretion orders otherwise.

[41] The court noted in Makuz at para. 4 that the rule is probably sound in most cases where there are multiple plaintiffs with one common cause of action.

[42] In my view, although the applicants were aligned to a significant degree against the respondent, their interests were not identical, and they maintained and advanced their own positions.

[43] In the exercise of my discretion I decline to order the applicants to pay the costs award on a joint and several basis, but rather each of them shall be responsible to pay one-half of the amount claimed by the respondent, rounded down to $7,925 each.

Disposition

[44] On the basis of the foregoing, it is ordered as follows:

(a) the applicant Joan MacDonald shall pay costs to the respondent fixed in the sum of $7,925 all inclusive;

(b) the applicant Joy Ogunro shall pay costs to the respondent fixed in the sum of $7,925 all inclusive;

(c) the foregoing amounts shall be paid within 30 days hereof.

[45] Approval of the formal Order to give effect to the foregoing by the applicants is waived.

D.A. Broad, J.

Date: May , 2021