CITATION: Carreiro v. Skrzeczkowska, 2021 ONSC 4793

COURT FILE NO.: Orangeville 67/20

DATE: 2021-07-06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lurdes CARREIRO, Plaintiff

AND:

Malgorzata SKRZECZKOWSKA and Leszek SKRZECZKOWSKI, Defendants

BEFORE: Conlan, J.

COUNSEL: Mina Ghabryal, for the Plaintiff Mathieu Bélanger, for the Defendants

COSTS ENDORSEMENT

The Motion

[1] The Defendants moved, successfully, to set aside the noting in default and the default judgment entered against them. The Motion was opposed, and vigorously so, by the Plaintiff.

[2] The Plaintiff's construction lien action is concerned with work done at the home of the Defendants.

The Positions of the Parties on Costs

[3] Unable to resolve the issue of costs, each side has filed written submissions.

[4] The Defendants ask for costs in the total amount of $6924.74, on a partial indemnity basis. They argue that this is one of those instances where the defaulting party ought to be awarded some costs for unnecessarily having to argue the matter on a contested basis.

[5] The Plaintiff submits that there should be no costs ordered for the Motion, or alternatively costs should be reserved to the trial judge. The latter position I find to have no merit.

Decision

[6] Normally, a successful party is entitled to some costs. For this type of motion, however, it is commonplace for the plaintiff to be awarded both the costs of the motion as well as costs thrown away (the latter related to the noting in default and the default judgment). Bouzari v. Bahramani, 2013 ONSC 6007, at paragraph 3.

[7] In some instances, particularly where it is found that the motion to set aside the noting in default and the default judgment ought to have proceeded on consent, the court orders a set-off on costs – an award of costs in favour of the moving/defaulting party, minus something in favour of the plaintiff representing its costs thrown away. B.A. Construction v. 2012221 Ontario Ltd., 2014 ONSC 2681.

[8] A notional set-off approach is what I think is the most fair, just, reasonable, and proportionate result on our facts. There is no doubt in my mind that Ms. Carreiro ought to have consented to the Motion. Its likelihood of success, although perhaps not a "foregone conclusion", as said in some cases, was, at a minimum, very high. Unquestionably, it should not have been argued on behalf of the Plaintiff that the Defendants presented no arguable defence on the merits.

[9] I do not know for certain what the Plaintiff's costs thrown away are because the submissions and the costs outline filed by her counsel do not tell me that. Nevertheless, the Plaintiff should not be penalized. I will fix them at $2000.00 even, all-inclusive of fees, disbursements, and tax. I will deduct $2000.00 from the partial indemnity figure proposed by the Defendants, $6924.74. I will then round down the net award to the nearest hundred, leaving $4900.00 in favour of the Defendants.

[10] This Court orders that the Plaintiff shall pay to the Defendants costs for the Motion in the total amount of $4900.00. In light of her financial circumstances, which I accept are fairly meagre, I will grant the Plaintiff ninety (90) calendar days to pay.

(Original signed by)__

Conlan, J.

DATE: July 6, 2021