Court File and Parties

CITATION: Craven v. Osidacz, 2021 ONSC 4917

COURT FILE NO.: CV-06-00000251-0000 (Brantford)

DATE: 2021/07/16

SUPERIOR COURT OF JUSTICE-ONTARIO

RE: JULIE MARIE CRAVEN, Plaintiff -and- ELIZABETH OSIDACZ and MICHAEL GERARD OSIDACZ, EXECUTOR OF ESTATE OF ANDREW PETER OSIDACZ, Defendants

BEFORE: Mr. Justice M. R. Gibson

COUNSEL: Michael Jaeger, Counsel for the Plaintiff Richard Simmons, Counsel for the Defendants

HEARD: May 10 and 14, 2021

ENDORSEMENT

Overview

[1] The motions before the Court in this matter have their origin in tragic circumstances.

[2] The Plaintiff/Creditor Julie Craven was the wife of Andrew Osidacz and the mother of their son Jared.

[3] The Defendant/Debtor Michael Osidacz is the Estate Trustee and brother of Andrew Osidacz.

[4] On March 18, 2006, Ms. Craven separated from Andrew Osidacz. On that date Andrew Osidacz stabbed and killed 8-year-old Jared. Later that day, Andrew Osidacz was shot to death by members of the Brantford Police service as he was just about to stab Ms. Craven to death with a large butcher knife.

[5] The trial of the civil action in this matter concluded in favour of the Plaintiff in 2017. The Defendant Michael Osidacz was found by the trial judge, Justice Lofchik, to have raised “totally irrational and reckless” defences and to have used the litigation process as a “vendetta” to “harass” the Plaintiff in a “reprehensible” manner. On the basis of what he found to be the “reckless and egregious” conduct of Michael Osidacz, Lofchik J. ordered him to repay the Estate over $71,000 (plus interest) and to pay more than $169,000 in costs personally to the Plaintiff, on a solicitor-client scale, rather than from the funds of the Estate.

[6] Specifically, the amounts ordered to be paid by the Defendant personally, on a solicitor and client basis, were the following:

(i) On May 19, 2017, the sum of $71, 277.98 plus pre and post interest;

(ii) On August 4, 2017, the sum of $169,701.56 plus pre and post interest.

[7] The Defendant appealed the above rulings but took no steps to move along the appeal, which was dismissed for delay by the Court of Appeal for Ontario on May 4, 2018. On that date, the Court of Appeal ordered the Defendant to pay the additional sum of $750.00, plus interest.

[8] The above awards totalled $251,938.84 as of May 9, 2018.

[9] Following the abandoned appeal, the Defendant made arrangements to pay the Plaintiff the sum of $163,640.64 (in two separate payments, one on September 14, 2018, and one on October 30, 2018).

[10] The Plaintiff submits that the first of these two payments was insufficient to pay the amount owed under the May 19, 2017 and August 4, 2017 Orders of the Superior Court of Justice, and the May 4, 2018 Order of the Court of Appeal. The above payments were applied first to the May 19, 2017 Order, then to the August 4, 2017 Order, which left a balance due of $91,765.62 with accrued interest to October 15, 2020.

[11] There remain additional collection costs that have not been fixed under Rule 60.19. There are also two cost awards that remain to be fixed, specifically relating to the Orders of Lofchik J. dated December 1, 2010, and Harper J. dated September 30, 2016. Both were decided in favour of the Plaintiff with costs to be fixed by the trial judge. However, ultimately they were not fixed by the trial judge, Lofchik J., who retired on August 3, 2018. In an email dated December 23, 2020, the Regional Senior Justice for Central South Region advised counsel for the Plaintiff that J Lofchik J. had retired and thus could not fix these costs.

[12] On October 20, 2020, the Plaintiff obtained a garnishment against the Defendant in regard to the balance due and payable and served it on the Bank of Nova Scotia (“BNS”) branch at 61 Lynden Road, Brantford, Ontario.

[13] The sum of $5,354.85 was recovered from the BNS garnishment and is currently held by the Sheriff.

[14] The Defendant brought a motion to terminate the BNS garnishment and the writ associated therewith.

[15] On December 21, 2020, the Defendant did not appear for cross-examinations on his pending motion, and a Certificate of Non-attendance was obtained against him. The Defendant did not provide any explanation for his non-attendance.

[16] By her Notice of Motion dated January 11, 2021, as Amended in her Amended Notice of Motion dated May 11, 2021, the Plaintiff seeks: the opinion, advice or direction from the Court concerning enforcement of a garnishment and the proceedings generally; an Order fixing the costs thrown away of the December 21, 2020 cross-examinations that the Defendant failed to attend; an Order fixing the costs of the motions that occurred on December 1, 2010 and September 30, 2016, on such terms as are just; an Order fixing the collection costs of the proceedings, and the various steps taken by the Plaintiff since judgment, pursuant to Rule 60.19; if necessary, an Order varying the orders of December 1, 2010 and September 30, 2016, so as to allow the fixing of costs by way of motion, instead of by the trial judge; an Order pursuant to Rule 59.06(2)(c ) and (d) varying para. 4 of the May 19, 2017 judgment of Lofchik J. so that the para. would read: “this Court further orders that Michael Gerard Osidacz shall pay to the Plaintiff Julie Craven the sum of $71,277.98 in respect of the Estate assets dissipated in the conduct of this litigation, together with pre-judgment interest from December 1, 2010, such payment shall be to the credit of the Estate towards any amount due to the Plaintiff under paragraph 1 of this judgment”; and an Order fixing all costs payable herein, including costs of the motion, by the Defendant Michael Osidacz personally, on a substantial indemnity basis.

[17] The effect of the new paragraph in the amended Notice of Motion seeking a variation of the May 19, 2017 judgment of Lofchik J. would be to make the $71,277.98 sought otherwise payable to the Estate, payable directly to the Plaintiff.

[18] The Defendant says that the judgment of Lofchik J. dated August 4, 2017, has been fully satisfied as of October 30, 2018. By his Notice of Motion dated November 25, 2020, the Defendant seeks: an Order for the withdrawal of the writ # 17-0000325; and an Order to direct the Sherriff that the garnishment #02700CV20A009561 be stopped nunc pro tunc as of October 26, 2020 and to stop the garnishment. The Defendant says that he provided a cheque for $80,000 sent to Boddy Ryerson in trust dated August 17, 2018, and a further cheque for $83,640.64 that was sent to Boddy Ryerson LLP dated October 30, 2018.

Issues

[19] The Issues before the Court on these motions are thus:

(i) Whether Rule 59.06 may be interpreted to allow para. 4 of the judgment of Lofchik J. to specify that the amount of $71,277.98 be payable directly to the Plaintiff rather than to the Estate;

(ii) Whether costs should be fixed in respect of the December 1, 2010 decision of Lofchik J., and the September 30, 2016 decision of Harper J.;

(iii) Whether costs should be awarded for costs thrown away in respect of the cross-examination which the Defendant did not attend;

(iv) Whether collection costs should be awarded; and,

(v) Whether the judgment of Lofchik J. dated August 4, 2017, has been fully satisfied as of October 30, 2018, and whether the writ # 17-0000325 should be withdrawn and the garnishment #02700CV20A009561 should be stopped nunc pro tunc as of October 26, 2020.

Analysis

[20] The Defendant has not demonstrated that the amounts owing have fully been paid as of October 28, 2018.

[21] I agree with the submission of the Plaintiff that the amount paid to date does not satisfy the amounts owing, and find that the two payments were insufficient to pay the amount owed under the May 19, 2007 and August 4, 2017 Orders of the Superior Court of Justice, and the May 4, 2018 Order of the Court of Appeal for Ontario.

[22] The Defendant’s proposal that a Receiver should be appointed would only further complicate and unnecessarily prolong this litigation. It is appropriate that the Court deal with the remaining issues now so as to conclusively determine the remaining issues in this protracted matter. Further prolongation would not serve the ends of justice.

[23] I consider that, in the circumstances, Rule 59.06 provides the requisite authority and it is appropriate to grant the Plaintiff’s request in her Amended Notice of Motion to order that the amount of $71,277.98 be payable directly to her rather than to the Estate, in respect of the Estate assets dissipated in the conduct of the litigation, together with pre-judgment interest from December 1, 2010. The Plaintiff is the only known creditor of the Estate.

[24] The Defendant objects to my fixing the costs in respect of the motions heard by Lofchik J. in 2010, and Harper J. in 2016, at least partly on the basis of what he submits is the expiry of the relevant limitation period. This issue requires some further consideration in detail.

[25] I consider that, in the first instance, no limitation period applies to the plaintiff’s request to fix the costs of the two motions because the plaintiff is seeking to enforce an order of the court pursuant to s. 16(1)(b) of the Limitations Act, 2002, S.O. 2002, c. 14, Sched. B (“Limitations Act”).

[26] In the alternative, the statutory definition and judicial interpretation of what constitutes a “claim” for the purposes of the Limitations Act does not appear to capture the plaintiff’s request, as a claim is defined in s. 1 as “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission.”

[27] Moreover, there are two analogous cases where r. 59.06(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, was relied on to amend orders that did not address the costs of interlocutory motions. These cases suggest that r. 59.06(1) confers the Court with the authority to fix the costs of the motion in this case.

[28] Additionally, the inherent jurisdiction of the Court provides further assistance in determining this case.

[29] I shall discuss in further detail the basis upon which I arrive at these conclusions.

Limitation Period

[30] The Limitations Act does not apply to the costs of the two motions because, as provided for in s. 16(1)(b) of the Act, there is “no limitation period in respect of a proceeding to enforce an order of a court, or any other order that may be enforced in the same way as an order of the court.”

[31] Because both Lofchik J. and Harper J. ordered that the costs of the two motions be reserved for the trial judge, it is arguable that the plaintiff is in essence seeking to enforce an order of the court and is not bound by the limitation periods provided for in the Act.

[32] There is little case-law citing s. 16(1)(b), but one case supports this interpretation, Pet Valu Canada Inc. v. Rodger, 2018 ONSC 3353. In that case, Pet Valu Canada Inc. (“Pet Valu”) and 1250264 Ontario Inc. (“125”) were embroiled in a class action proceeding that resulted in Pet Valu being awarded over $1.7 million in costs against 125, the representative plaintiff. 125 did not pay any of the costs and Pet Valu brought an action against 125’s sole shareholder, Mr. Rodger, for payment of the cost orders. Mr. Rodger argued that Pet Valu’s claims were statute barred, but the court unequivocally dismissed this argument because (1) as per s. 16(1)(b) there is no limitation in respect of a proceeding to enforce an order of a court, and (2) the action against Mr. Rodger (as opposed to 125) fell within the requisite time-frame. Of course, Pet Valu Canada Inc. is more straightforward because the costs were determined and Pet Valu was simply seeking to have payment enforced, unlike the present case. That being said, both Lofchik J. and Harper J. ordered that the costs were to be reserved, and this order was ultimately not dealt with nor enforced.

[33] However, even if s. 16(b) did not apply, it is not clear that the plaintiff’s request for costs constitutes a “claim”.

[34] Section 4 of the Limitations Act provides that “a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.”

[35] Section 1 defines a “claim” exhaustively as “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission.”

[36] There are few cases where the Court has contemplated whether a request to fix costs constitutes a “claim”. However, the Court in Middlesex Condominium Corp. No. 643 v. Prosperity, 2014 ONSC 1406 provides some instructive commentary regarding the kinds of matters that are captured by the Limitations Act, at paras. 26-38:

[26] As indicated, s. 1 of the Limitations Act 2002 defines a claim as “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission”. It appears that the vague definition of “claim” in s. 1 has seen little treatment in the case law as to its actual meaning. The majority of the cases simply treat the definition of “claim” in passing as met. The issue in most cases becomes the discoverability of the claim as laid out in the Limitations Act 2002 under s. 5.

[27] However, a few cases and commentaries are worth pointing out. In Guillemette v. Doucet, 2007 ONCA 743, the Court understandably, found a client’s request for an assessment to be conducted to be a “claim” to which the Limitations Act 2002 applied, absent “special circumstances” as regards the Solicitors Act, R.S.O. 1990, c. S.15.

[28] In Markel Insurance Co. of Canada v. ING Insurance Co. of Canada; Federation Insurance Co. of Canada v. Kingsway General Insurance Co., 2012 ONCA 218, the Court of Appeal confirmed that the Limitations Act 2002 indeed applies to loss-transfer claims in that such claims fall within s. 1 (“loss”).

[29] In McConnell v. Huxtable, 2013 ONSC 948, aff’d 2014 ONCA 86, the Superior Court reaffirmed that all claims under statute, equity, or the common law fall within the s. 1 definition of “claim” since it is “extremely broad” (see paras. 22, 71-72, 102). Such an interpretation was not possible under the old regime.

[30] Since the coming into force of the Limitations Act 2002 in 2004, there is a line of cases to the effect that a “claim” under s. 1 does not distinguish between a claim based in equity or one under the common law: Schneider v. State Farm Mutual Automobile Insurance Co., 2010 ONSC 4734; Bouchan v. Slipacoff, 2010 ONSC 2693, at para. 9.

[31] In Pirani v. Karmali, 2012 ONSC 1647, Perell J. stated at para. 49: “If one, however, turns to the Limitations Act, 2002, it is arguable that unjust enrichment claims, constructive trust claims, knowing receipt, and knowing assistance claims come within the definition of ‘claim’ under the Limitations Act, 2002.”

[32] In Temple (Re), 2012 ONSC 376, at para. 14, Newbould J. stated: “I do not think it can reasonably be said that a bankruptcy application is a proceeding in respect of a claim to remedy an injury, loss or damage that occurred as a result of an act or omission. Thus the Limitations Act, 2002 is not applicable to a bankruptcy application.” At para. 29, Newbould J. held: “Moreover, the fact that no suit has been brought on a debt owing to the applicant within two years of the date of the bankruptcy application is no defence to a bankruptcy application based on that debt as the debt continues to be owed.”

[33] The Ontario Bar Association’s The New Ontario Limitations Regime: Exposition and Analysis (Toronto: OBA, 2005), drew special attention to interpretive problems as regards “claim” under s. 1 when commercial loans are at issue: at p. 4 it stated “While an event of default under a credit agreement (or other loan document) will constitute an ‘act or omission’, not all events of default will automatically result in an ‘injury, loss or damage’.”

[34] In Bell Canada Inc. v. White Admiral Ltd., 2011 ONSC 5857, Bell purchased and registered an easement over land on which it installed electrical instruments. The land was purchased by White Admiral and Bell sought a declaration that the easement was valid and an order directing the land registrar to rectify the registration. Justice Hambly of this court stated at para. 13: “Bell has suffered no ‘injury loss or damage’ for which it claims relief against White Admiral. … In my view the Limitations Act does not apply.”

[35] In Toronto Standard Condominium Corp. No. 1703 v. 1 King West Inc., 2009 55330 (ON SC), [2009] O.J. No. 4216 (S.C.–Master), it was disputed as to whether a “claim” in the legal sense was being pursued. When affirming that decision, the Divisional Court (2010 ONSC 2129) held at para. 28 that “Unlike an ‘action on the case’ it is not essential that a ‘claim’ under s. 1 of the Act ‘sound in damages’ or ‘create a legal duty, the breach of which gives rise to a cause of action.’” It affirmed that there is indeed a distinction between a cause of action and a “claim” as found in the new Limitations Act 2002.

[36] In Desmoulin v. Paul, [2009] O.J. No. 1722 (S.C.), Smith J. stated at para 22: “[T]he limitation periods in the Limitations Act apply to claims to remedy an ‘injury, loss or damage’ that occurred as a result of an act or omission (s. 1). A claim for spousal support is not such a claim.”

[37] Finally, the Court of Appeal in Meady v. Greyhound Canada Transportation Corp., 2008 ONCA 468 stated at para. 11, that the definition of “claim” under s. 1 “focuses on particular acts or omissions, even if more than one act or omission by more than one party contributed to the same injury.” At para. 29 of Hare v. Hare, 2006 41650 (ON CA), [2006] O.J. No. 4955 (C.A.), the Court of Appeal remarked at how “[t]he language of the new Limitations Act is very different from that of the former Limitations Act” when s. 1 is of concern.

[38] Clearly, the definition of “claim” in s. 1 is extremely broad – “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission”. The courts have repeatedly stated that the Limitations Act, 2002, is a “comprehensive approach to the limitation of actions.” The aim is to “balance the right of claimants to sue with the right of defendants to have some certainty and finality in managing their affairs”: York Condominium Corp No. 382 v. Jay-M Holdings Ltd. (2007) 2007 ONCA 49, 84 O.R. (3d) 414 (C.A.), at para 2. There is no longer an extension of a limitation period by the application of any common law doctrine. Thus, the phrase “injury, loss or damage” is not to be as narrowly construed as Prosperity suggests. The statutory scheme in the Limitations Act, 2002, is comprehensive and intended to encompass all claims that are not expressly removed from its application.

[37] Moreover, in Johnson v. Studley, 2014 ONSC 1732, at paras. 54-55, the Court described a claim as cause of action:

[54] In a somewhat circular way, section 1 of the Limitations Act, 2002 defines “claim” to mean: “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission.” A less circular and more useful definition for claim would be that a claim is a cause of action, which is the fact or facts which give a person a right to judicial redress or relief against another. [Emphasis added.]

[55] I say that this would be a more useful definition for a claim, because under the discoverability principle that governs the operation of the Limitations Act, 2002, a limitation period commences when the plaintiff discovers the underlying material facts for a cause of action or, alternatively, the period commences when the plaintiff ought to have discovered those facts by the exercise of reasonable diligence.

[38] Based on the commentary contained in the two cases cited above, I consider that the relief the plaintiff is seeking does not constitute a claim that would be subject to the limitation period set out in s. 4 of the Act, as the plaintiff is not attempting to remedy an injury caused by an act or omission, but is instead seeking to enforce an order that was ultimately overlooked.

Rule 59.06

[39] Rule 59.06(1) of the Rules of Civil Procedure provides that “An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.” The following cases are instructive.

[40] In Convey v. Marsulex Inc., 2004 CarswellOnt 3606 (S.C.), the plaintiffs brought an action against the defendants and filed a certificate of pending litigation. The defendants brought two motions, one to discharge the certificate and one for security for costs, the costs of which were reserved to the trial judge.

[41] Following the two interlocutory motions, the defendants successfully brought a motion to dismiss the plaintiff’s action and the plaintiffs were ordered jointly and severally to pay the costs of the action on a substantial indemnity scale forthwith after assessment. The plaintiffs questioned whether the substantial indemnity scale applied to the interlocutory matters, and the defendants brought a motion pursuant to r. 59.06(1) to clarify whether this was the case.

[42] At para. 8, the court stated that “[t]here is no question that the Rules of Civil Procedure, R.R.O., 1990, Reg. 194, specifically give the court the authority to provide further direction to allow the order to be carried into operation.” The court also made the following comments at paras. 9-11:

[9] In Wine v. Fisher et. al. 1998 5213 (ON CA), 42 O.R.(3d) 153 (Ont. C.A.), Osborne J. A. quotes Orkin, The Law of Costs, 2d edition, in paragraph 402, which states that, as a general rule, costs of interlocutory proceedings are not payable until the conclusion of the litigation unless the court directs in some way that they be paid at an earlier time.

[10] Justice Wallace in the two orders before us, left the decision of costs to the trial judge. There is an implication therefore that the costs of these two motions be considered in the total costs to be awarded to the successful party. This is so, regardless of whether the litigation concludes in a trial or by a successful motion for dismissal. [Emphasis added.]

[11] The Assessment Officer is therefore directed that the statement “costs of this action shall be awarded on a substantive indemnity basis following an assessment” shall include an assessment of any costs incurred in any interlocutory proceedings.

[43] Moreover, at para. 14, the court furthered stated that “[t]he manifest intention of the Court was to award full costs for defending the matter and not simply the costs that can be attributed to the action, proper.” The court was clear that the fact that the costs had been reserved to the trial judge did not preclude the trial judge from including these costs in the award on the motion for dismissal. The court went on to cite Orkin in The Law of Costs, 2nd Edition:

[18] Orkin in The Law of Costs, 2^nd Edition, in paragraph 406 states as follows:

406. — Reserved Costs

Where the costs of a motion are reserved to the trial judge they should not be included in the judgment or assessed unless the judge expressly deals with them. It has been said that where, through an oversight, a motion was not made for reserved costs until after judgment had been entered they should not be allowed except under very special circumstances, but the existence of such a rule has been doubted and a motion may be entertained either to amend the judgment to provide for reserved costs or to allow the costs on motion even after the judgment has been appealed.

Costs of an interlocutory motion were reserved to the trial judge when the reasonableness of bringing the motion and offers to settle made prior to the motion could best be determined.

[19] This motion by the defendants therefore does not amend the cost awards on the interlocutory proceedings. It simply gives effect to the costs awards of Justice Wallace. [Emphasis added.]

[44] In the present case, the plaintiff is similarly seeking to give effect to the reserved costs awards of Lofchik J. and Harper J.

[45] Moreover, the case of Kerr v. Danier Leather Inc. (2005), 2005 23095 (ON SC), 76 O.R. (3d) 354 (S.C.) is also instructive. In this class action case, the plaintiffs were successful in defending a summary judgment motion and a motion to obtain certification. The matter of costs was not argued in respect of either motion, nor adjudicated upon in the Reasons for Decision delivered in respect of each motion. Neither of the two orders implementing the decisions made any reference to costs. At issue was whether the representative plaintiff could vary the two orders so as to include an award for costs.

[46] The court found that the orders could be amended pursuant to r. 59.01(6) and stated the following at para. 39:

[39] In my view, rule 59.01(6) allows for an amendment in the instant situation. The court did not adjudicate upon the merits of an award of costs in dealing with the summary judgment and certification motions in the Reasons for Decision delivered and the two Orders entered. I adjudicated upon the substantive issue in respect of each motion. I did not adjudicate upon the ancillary, discrete issue of costs in respect of either motion. [Emphasis added.]

[47] Another instructive case is Millwright Regional Council of Ontario Pension Trust Fund (Trustees of) v. Celestica Inc., 2013 ONSC 1502. While not factually similar, the Court provides judicial commentary on the purpose and scope of r. 59.06(1) at paras. 30-34:

30 Rule 59.06 (1) is designed to amend judgments containing a slip or error, errors which are clerical, mathematical or due to misadventure or oversight. The rule is designed to amend judgments containing a slip, not to set aside judgments resulting from a slip in judicial reasoning: Central Canada Travel Services v. Bank of Montreal, 1986 2576 (ON SC), [1986] O.J. No. 1249 (Ont. H.C.) at para. 21; Dhaliwal v. Plantus, [2007] O.J. No. 5450 (Ont. S.C.J.) at para. 4. Rule 59.06 (1) is not designed to be a disguised means to review errors in the making of the Reasons for Decision; rather, it is designed to correct errors in memorializing the Reasons into a formal order or judgment.

31 Generally speaking the court's inherent and statutory jurisdiction to amend an order or judgment is limited to: (1) cases of fraud; (2) where there has been a slip in drawing up the order; and (3) where there has been an error in the order expressing the manifest intention of the court from its reasons for decision: Paper Machinery Ltd. v. J.O. Ross Engineering Corp., 1934 1 (SCC), [1934] S.C.R. 186 (S.C.C.); Wright, Re, [1949] O.J. No. 3 (Ont. H.C.); Millard v. North George Capital Management Ltd., [1999] O.J. No. 3957 (Ont. S.C.J. [Commercial List]). The rule is only operative in exceptional circumstances given the public interest in the principle of finality to the litigation process: Shaw Satellite G.P. v. Pieckenhagen, 2011 ONSC 5968 (Ont. S.C.J.) at para. 20. [Emphasis added.]

32 Under rule 59.06(1), the Court has the power to amend an order where there has been an error in expressing the manifest intention of the Court: Paper Machinery Ltd. v. J.O. Ross Engineering Corp., 1934 1 (SCC), [1934] S.C.R. 186 (S.C.C.); Millard v. North George Capital Management Ltd., [1999] O.J. No. 3957 (Ont. S.C.J. [Commercial List]); Convay v. Marsulex Inc., [2004] O.J. No. 3645 (Ont. S.C.J.). [Emphasis added.]

33 The rule permits amendments where the order obviously or indubitably does not reflect what the court intended to do, either by error or oversight: Johnston v. Johnston, [2002] O.J. No. 1570 (Ont. Div. Ct.); Saikely v. 519579 Ontario Ltd., [2002] O.J. No. 2863 (Ont. S.C.J.); Kerr v. Danier Leather Inc. (2005), 2005 23095 (ON SC), 76 O.R. (3d) 354 (Ont. S.C.J.). [Emphasis added.]

34 In Chrysler Credit Canada Ltd. v. 734925 Ontario Ltd., [1991] O.J. No. 3619 (Ont. Gen. Div.), Master Peppiatt stated at para. 10.

10. The purpose of...[the] procedure [under Rule 59] is to ensure, so far as humanly possible, that the formal order upon which an appellate court, and other members of the same court, sheriff, accountant, etc., will act accurately sets out the intention of the court which pronounced the order as reflected in the endorsement or reasons. It is important that this should be done so that all concerned may know their rights, obligations and duties. It is far more than a mere formality.

[48] In this case, the manifest intention of the Court was presumably to address the issue of reserved costs. Ultimately, this was not done, and thus r. 59.06(1) appears to provide the court with the authority to remedy this oversight.

Inherent Jurisdiction

[49] With respect to the plaintiff’s position that the Court has the inherent jurisdiction to fix the costs of the two motions, the following judicial commentary arising from Gagne v. Murray, 2020 ONSC 4642, is instructive. While not factually similar, the Court lays out the relevant principles regarding the doctrine of nunc pro tunc and the court’s inherent jurisdiction at paras. 17-20:

17 The doctrine of nunc pro tunc, or "now for then," provides the court with the ability to, in essence, backdate an order to an earlier moment in time. In Hogarth v. Hogarth, 1945 396, [1945] O.W.N. 448 (Ont. H.C.) at p. 449, Kelly J. held:

There is inherent jurisdiction in the Court to make orders nunc pro tunc to validate proceedings which have been carried out and have been found ineffective by reason of some slip or oversight having been made in the conduct of such proceedings, and to ensure against some injustice resulting therefrom.

18 In Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60 (S.C.C.), at para. 90, the Supreme Court of Canada set out a list of six non-exhaustive factors a court is to consider when determining whether to exercise its inherent jurisdiction to grant the order, including assessing whether:

1. the opposing party would be prejudiced by the order;

2. the order would have been granted had it been sought at the appropriate time, such that the timing of the order is merely an irregularity;

3. the irregularity was intentional;

4. the order will effectively achieve the relief sought or cure the irregularity;

5. the delay was caused by an act of the court; and

6. the order would facilitate access to justice.

19 The moving party relies on two decisions in which courts granted orders nunc pro tunc. The first is Kerr v. Danier Leather Inc., 2005 23095 (ON SC), 2005 CarswellOnt 2704, 76 O.R. (3d) 354 (Ont. S.C.J.), in which an order was amended three years after issuance. Cumming J. held that the delay in bringing the motion was not a prohibiting factor, given there was no prejudice to the defendants (para. 28). The second is Lam v. Sumner Estate, 2008 BCCA 50, 37 E.T.R. (3d) 174 (B.C. C.A.) where the relief sought was granted, again on the basis that there was an absence of prejudice to the opposing party.

20 The test to grant a nunc pro tunc order is one of fairness. As Gomery J. said in Messari et al. v. Alberelli et al., 2017 ONSC 5304 (Ont. S.C.J.), at para. 15, "[i]n the end, the court is assessing the overall fairness of granting a backdated order by considering the diligence of the party seeking it, and potential prejudice to the opposing party if the order to granted."

[50] To summarize on this issue, I consider that:

A. the Limitations Act does not apply;

B. r. 59.06(1) provides the court with the authority to grant the relief sought, i.e. to fix the costs of the motions; and

C. this is a case where the Court’s inherent jurisdiction can be used to remedy the fact that the costs of the motions were not addressed by the trial judge.

[51] I find that, in the circumstances, where the trial judge has retired and has not made cost Orders in respect of the two motions from 2010 and 2016, the Court has jurisdiction pursuant to Rule 59.06 to grant the relief sought by the Plaintiff, and that it is necessary in the interests of justice to do so: Clatney v. Quinn Thiele Mineault Grodzki LLP, 2016 ONCA 377 at paras. 59 and 60. There is no prejudice to the Defendant because of the delay in addressing costs: Kerr v. Danier Leather Inc., 2005 23095 (ON SC), 76 O.R. (3d) 354 at para. 38.

[52] It is appropriate to fix the collection costs and the costs thrown away due to the non-attendance of the Defendant at a scheduled examination.

Findings

[53] I make the following findings in respect of the amount of costs owed by the Defendant Michael Osidacz to the Plaintiff Julie Craven in this matter:

(i) Court Orders May 19, 2017 and August 4, 2017: Balance as of October 15, 2020 is $91,715.62. Per diem interest is $4.84, or $145.20 per month. Interest from October 16 to 28, 2020, is $62.92.

Less payment received from garnishment on October 29, 2020 of $5,344.85.

Interest @ 2% from October 29, 2020 to May 10, 2021 = $912.89.

(ii) Court of Appeal costs $750.00 plus interest @ 3% from May 4, 2018 to May 10, 2021 = $66.12.

(iii) December 1, 2010 decision of Lofchik J. costs fixed at $15,814.76 plus interest of 1% from December 1, 2010 to May 10,2021 = $1,639.59.

(iv) September 30, 2016 motion and decision of Harper J. costs fixed at $5,066.44 plus interest @ 2% from September 16, 2016 to May 10, 2021 = $471.24.

(v) Costs thrown away in respect of non-attendance for examination on December 21, 2020 fixed at $1,402.51.

(vi) Collection costs fixed at $4,575.27.

[54] The totals are thus:

$86,370.67 ($91,715.62 - $5,344.95) plus $912.80 interest;

$750.00 plus $66.12 interest;

$15,814.76 plus $1,639.59 interest;

$5,064.44 plus $471.24 interest;

$1,402.51; and

$4,575.27

Total: $117,067.49

[55] The Defendant’s motion is dismissed.

[56] The Plaintiff’s motion is granted.

Order

[57] The Court Orders that:

1. The Defendant Michael Osidacz shall personally pay $117,067.49 to the Plaintiff Julie Craven.

Costs

[58] The parties are encouraged to agree upon appropriate costs for these motions. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum three pages double-spaced, plus a bill of costs) by email to my judicial assistant, Mona Goodwin at mona.goodwin@ontario.ca. The Plaintiff may have 14 days from the release of this decision to provide her submissions, with a copy to the Defendant; the Defendant a further 14 days to respond; and the Plaintiff a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received any response or reply submissions within the specified timeframes after the Plaintiff’s initial submissions, I will consider that the parties do not wish to make any further submissions, and will decide on the basis of the material that I have received.

M. R. Gibson, J.

Date: July 16, 2021