Court File and Parties

Court File No.: CV-18-019 Date: 2021-06-01 Superior Court of Justice – Ontario

Between: Donald Godin and Robert Godin v. Louise Johnston

Before: Honourable Mr. Justice Martin James

Counsel: M. Peter Sammon, for the Plaintiffs Louise Johnston, self-represented Defendant

Heard: By written submissions

Costs Endorsement

James J.

[1] The Plaintiffs successfully sought to have the Statement of Defence struck out for failure to deliver a proper affidavit of documents, answer undertakings and pay an unpaid costs order.

[2] The Plaintiffs have filed a costs outline seeking fees of $13,702.50, disbursements of $1, 286.88 and HST for a total of $16,770.71 on a full indemnity basis calculated on an hourly rate of $270.

[3] For reasons which are not explained, the draft bill of costs commenced with the issuing of the statement of claim, whereas the costs that this Endorsement deals with arise in the context of a motion brought by the Plaintiffs within the lawsuit. The case is not over. The Plaintiffs must still prove their damages.

[4] With respect to the disbursements for issuing and serving the Statement of Claim, the action is not yet complete and these disbursements are usually recovered at the end of the case as part of the costs of the Action.

[5] The Statement of Defence was previously stuck out with leave to amend and a costs order of $1,000 was imposed.

[6] Later, another costs order of $5,000 was imposed following further orders to provide proper disclosure and answer to undertakings.

[7] As a result, the Plaintiffs’ costs claim ought to be calculated on activity subsequent to the last costs order, even though the previous costs orders have not been paid. It would be improper to award costs on top of a previous costs order relating to the same issues.

[8] As for the disbursement for the examination of Ms. Johnston, this event predates the last costs order and therefore does not fall within the timeframe to which this Costs Endorsement relates. In my view, the costs entitlement of the Plaintiffs is limited to the 5-hour period described on the last page of the draft bill of costs. These costs ought to be recovered on a full indemnity basis.

[9] The Defendant takes issue with the time taken by the Plaintiffs to deliver their costs submissions. Time limits during the pandemic have not been enforced. As for the length of the costs outline, when both the outline and the draft bill of costs are considered, the document is not too lengthy. The Defendant also takes issue with the Plaintiffs’ continued use of email to deliver documents to the Defendant despite her previous requests not to use the email method of serving documents. The Plaintiffs should use the Defendant’s mailing address which is listed on the back sheet of her costs submissions.

[10] Based on comments the Defendant made in her Response to the Plaintiffs’ costs request, I have the impression the Defendant believes that her professed lack of assets ought to be sufficient to persuade the Plaintiffs to discontinue this lawsuit. This sentiment is misplaced. Plaintiffs must wait until they secure a judgment before being entitled to conduct detailed inquiries into an opposing party’s ability to pay a judgment. This usually takes the form of a judgment debtor examination, also known as an examination in aid of execution. Sometimes Defendants find it to their advantage to willingly submit to an examination of their financial position at an early stage before trial for the purpose of proving they have no assets to satisfy a judgment. Also, completing a sworn financial disclosure document can accomplish the same objective. This sometimes has the effect of convincing a Plaintiff that it would be uneconomic to continue with the lawsuit. It is advisable, however, that the Defendant obtain legal advice before agreeing to such a procedure.

[11] The Defendant’s suggestion that counsel for the Plaintiffs has not remitted HST is irrelevant to his legal requirement to collect it.

[12] I agree with the Defendant that detailed time dockets are preferable to claiming costs en bloc. However, I am satisfied that costs can be dealt with equitably with the information that has been provided.

[13] In result, the Plaintiffs’ are entitled to a reasonable allowance for costs in relation to services rendered subsequent to the previous costs order which I fix in the amount of $1,550 inclusive of fees, disbursements and HST, payable by the Defendant forthwith.

Mr. Justice Martin James Date: June 1, 2021