Court File and Parties

CITATION: Craven v. Osidacz, 2021 ONSC 5703

COURT FILE NO.: CV-06-251(Brantford)

DATE: 2021/08/24

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 Plaintiff Richard Simmons, Counsel for the Defendants

HEARD: May 10 and 14, 2021

COSTS ENDORSEMENT

[1] In my Endorsement in this matter dated July 16, 2021, 2021 ONSC 4917, I granted the Plaintiff’s motion and dismissed the Defendants’ motion. I directed that the Defendant Michael Osidacz should personally pay $117,067.49 to the Plaintiff Julie Craven.

[2] In my Endorsement, I encouraged the parties to agree upon appropriate costs, but directed that if they could not, they might make written submissions to me as to costs. The Plaintiff has done so in her cost submissions dated July 29, 2021. No submissions as to costs have been received from the Defendants.

[3] In my Endorsement of July 16, 2021, I specified that if I have not received a response or reply submissions within the specified timeframes after the Plaintiff’s initial costs 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.

[4] The Plaintiff seeks costs of the motion on a full indemnity basis of $10,400 plus HST and disbursements, for a total of $11,943.02. In support of this position, she submits that the ongoing conduct of Mr. Osidacz throughout the litigation has been egregious and reflects an overall agenda or vendetta to delay compensation to her. As noted, no reply has been received from or on behalf of Mr. Osidacz.

[5] The factors that a court may consider in exercising its discretion under s.131 of the Courts of Justice Act to award costs, in addition to the result of the proceeding and any offers to settle made in writing, are set out in Rule 57.01 of the Rules of Civil Procedure. Amongst these are: 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; the amount claimed; the complexity of the proceedings; the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding; the importance of the issues; and any other matter relevant to the question of costs.

[6] Costs should be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding. Regard must be had to the principle of proportionality. Costs regardless of the scale must be fair and reasonable and within the expectation of the parties and proportional having regard to the issues at stake: Boucher v. Public Accountants Council (Ontario), 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (Ont.C.A.).

[7] The Plaintiff was wholly successful on her motion. The matter was of significant importance to her. The issues were of moderate complexity.

[8] I consider that, in the circumstances, it is clear that the continuing conduct of Mr. Osidacz has had the effect of unnecessarily lengthening the duration of the overall proceeding, and that there is merit to the Plaintiff’s submissions that something more than partial indemnity costs are appropriate.

[9] Having regard to all the relevant factors, including the outcome of the proceedings, proportionality of the costs to the value of the claim at issue, the conduct of the Defendant, and that I have received no submissions from him as to costs, I consider that a fair and reasonable amount for the losing party to pay in costs would be $ 11,900.

[10] Accordingly, the Court Orders that the Defendant Michael Gerard Osidacz shall personally pay costs to the Plaintiff Julie Craven fixed at $11,900 all inclusive, payable forthwith.

M.R. Gibson, J.

Dated: August 24, 2021