COURT FILE NO.: CV-18-604417

DATE OF ENDORSEMENT: 20210205

WRITTEN COSTS SUBMISSIONS FILED: 20210305

COSTS ENDORSEMENT RELEASED: 20210607

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

KATARZYNA ZDANOWICZ

Plaintiff

• and-

TYLER JAMES ANDREW O’NEILL

Defendant

BEFORE: MASTER M.P. McGRAW

COUNSEL: S. McClelland Email: smcclelland@blacksutherland.com

• for the Defendant

P. Lulic Email: luliclaw@gmail.com

• for the Plaintiff

COSTS ENDORSEMENT RELEASED: June 7, 2021

Costs Endorsement

I. Introduction

[1] The Defendant’s motion to dismiss the Plaintiff’s action for failure to comply with court orders, Rule 15.04 and delay was resolved on consent with costs submissions to be done in writing. The Defendant seeks costs of the motion, and an earlier timetable motion, in the aggregate amount of $5,917.38 on a partial indemnity scale.

II. Background, Law and Analysis

[2] By Order of Master Brott dated January 26, 2020, Plaintiff’s counsel was removed as lawyers of record (the “Removal Order”). On September 14, 2020, Master Josefo granted an order requiring the Plaintiff to, within 45 days, serve her sworn Affidavit of Documents, provide her availability for examinations for discovery and deliver a Notice of Intention to Act in Person, and to serve a trial record within 120 days of her examination for discovery (the “Timetable Order”). The Plaintiff did not comply with the Timetable Order. The Plaintiff did not deliver a Notice of Intention to Act in Person and did not retain new counsel until on or about January 18, 2021. The Plaintiff claims that she did not receive the Removal Order or any correspondence until November 11, 2020 because it was sent to her previous address, which was the address set out in the Removal Order. Defendant’s counsel did not become aware of this until November 3, 2020 when correspondence mailed to the Plaintiff was returned.

[3] Defendant’s counsel retained an investigator who identified the Plaintiff’s new address. On November 12, 2020, the Defendant served the Notice of Motion returnable February 5, 2021 at the new address. The Plaintiff acknowledges receiving the Notice of Motion. However, she did not respond to this or any other correspondence from Defendant’s counsel until after she was served with the Defendant’s Motion Record in January 2021 when her new counsel served a Notice of Appointment of Lawyer on or about January 20, 2021.

[4] For reasons which remain unexplained, the Plaintiff took the position that the second motion was a summary judgment motion, even serving a Factum and Book of Authorities for a summary judgment motion. Plaintiff’s counsel continued to do so notwithstanding that the Defendant’s materials did not seek this relief and confirmation from Defendant’s counsel that they were not requesting summary judgment.

[5] On February 3, 2021, in response to a settlement inquiry from Defendant’s counsel, Plaintiff’s counsel advised that the Plaintiff would agree to a withdrawal/abandonment of the motion if the Defendant paid a minimum of $5,000 in legal fees and expenses. The Defendant rejected this offer, and late on February 4, 2021, the parties agreed to resolve the motion on the terms set out in my Order dated February 5, 2021: the Plaintiff shall serve a further and better Affidavit of Documents within 30 days, comply with the Defendant’s proposed Discovery Plan, advise of her availability to attend examinations for discovery within 30 days which shall take place within 120 days and set the action down for trial within 30 days of her discovery.

[6] Subject to the provisions of an Act or the Rules, 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 costs shall be paid (s. 131(1), Courts of Justice Act (Ontario)). In exercising this discretion, in addition to the result and any offer to settle made in writing, the court may consider the factors set out in Rule 57.01(1).

[7] The overriding principles in determining costs are fairness and reasonableness (Boucher v. Public Accountants Council for the Province of Ontario, (2004) 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)). The general rule is that costs on a partial indemnity scale should follow the event which should only be departed from for very good reasons such as misconduct of the party, miscarriage in procedure or oppressive or vexatious conduct (1318706 Ontario Ltd. v. Niagara (Regional Municipality) (2005), 2005 CanLII 16071 (ON CA), 75 O.R. (3d) 405 (C.A.); 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238 at paras. 10, 12-14).

[8] Costs are not generally awarded when a motion proceeds on consent unless, as here, the parties have agreed to deal with costs separately and/or where the motion would unlikely have proceeded on consent without deferring costs (Kearney v. Hill, 2017 ONSC 6306 at paras. 27-31; Muskala v. Sitarski, 2017 ONSC 2842 at paras. 5-12).

[9] In my view, the Defendant is entitled to costs. Even accepting the Plaintiff’s explanation that she did not receive any correspondence until November 12, 2020, if she had responded in a timely manner, before the Defendant served his Motion Record, the preparation of motion materials and the motion itself might have been avoided. By waiting until she was served with the Motion Record to retain counsel and respond, she caused the Defendant to incur unnecessary costs and lengthened the proceedings (Rules 57.01(1)(e) and (f)). The Plaintiff caused further costs after retaining counsel by refusing to consent to a timetable until after 4 p.m. on the day before the motion. All of this also demonstrates that the Defendant’s efforts, and the motion, were necessary and that without them the Plaintiff would not have agreed to a timetable to move her action forward.

[10] In determining quantum, I have taken into consideration that although the motions were straightforward and non-complex, they were important to move the Plaintiff’s action forward (Rule 57.01(1)(d)). I have also considered the Plaintiff’s demand for $5,000 in costs before ultimately consenting to a timetable, her own Costs Outline in which she seeks $2,987.50 on a partial indemnity scale and the fact that she was self-represented for a period of time and not receiving all correspondence. This must be balanced with the Defendant’s entitlement to rely on the address in the Removal Order and counsel immediately taking the initiative to hire an investigator to locate the Plaintiff when it learned that the address was incorrect.

[11] In light of all relevant factors, is fair and reasonable and within the parties’ reasonable expectations for the Plaintiff to pay costs fixed in the amount of $4,500 within 30 days.

Costs Endorsement Released: June 7, 2021

Master M.P. McGraw