Court File and Parties
COURT FILE NO.: CV-19-00631144-0000
DATE: 2021-09-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FRANK DERENZIS Plaintiff
- and -
RON JOHNSON, MATT DOTO and TED AIVALIS Defendants
Counsel: Osborne G. Barnwell for the Plaintiff. Lorne Honickman and William McLennan for the Defendants.
HEARD: In writing
REASONS FOR DECISION – COSTS
PERELL, J.
[1] The Plaintiff Frank Derenzis, up until recently a self-represented litigant, delivered three versions of his Statement of Claim concerning events that began in the late winter of 2016 when he lost an election for a governance position at Toronto Civic Employees’ Union, CUPE Local 416.
[2] In his first pleading, a Statement of Claim dated December 11, 2019 (based on a Notice of Action issued on November 15, 2019), Mr. Derenzis sued: (a) Ron Johnson, who is a Vice-President of Local 416, for defamation; (b) Ted Aivalis, who is a Vice-President of Local 416, for battery, defamation, and negligence; and (c) Matt Doto, who was Local 416’s Election Returning Officer, for negligence.
[3] In his second pleading, a Fresh as Amended Statement of Claim, which was delivered in February 2020 after the Defendants had moved to strike the first pleading, Mr. Derenzis made additional allegations against Mr. Johnson, Mr. Aivalis, and Mr. Doto and added causes of action for fraud and breach of contract.
[4] In his third pleading, a Second Fresh as Amended Statement of Claim, which was delivered in June 2021 as part of a cross-motion, Mr. Derenzis seeks to join Local 416 as a party defendant and to advance a tort claim of civil conspiracy against all the Defendants. Mr. Derenzis also seeks a declaration that findings made against him by Local 416’s complaint and disciplinary tribunals be declared null and void. The third Statement of Claim abandons the defamation claims against Mr. Johnson and Mr. Aivalis. It abandons the negligence claim against Mr. Doto. There is no clear pleading of breach of contract. In the third Statement of Claim, the battery allegation against Mr. Aivalis is asserted to be a wrongful act in furtherance of the alleged civil conspiracy.
[5] The Defendants Johnson, Doto and Aivalis and the Defendant Local 416, which was added to the third iteration of the pleading, moved to strike all three iterations of the Statement of Claim and to have Mr. Derenzis’ action dismissed on a variety of bases including that: (a) the pleadings do not disclose a reasonable cause of action; (b) the pleaded claims are statute-barred by the [Limitations Act, 2002][^1]; or (c) the pleadings offend the rules of pleading of the [Rules of Civil Procedure][^2].
[6] The result of the motions was that except for the battery claim against Mr. Aivalis, should Mr. Derenzis wish to pursue it, I struck all three Statements of Claim without leave to amend. I ordered that Mr. Derenzis shall have twenty days to deliver his Second Fresh as Amended Statement of Claim for battery against Mr. Aivalis failing which his action shall be dismissed in its entirety.
[7] Messrs. Johnson, Doto and Aivalis seek costs of $15,702.14 on a partial indemnity scale comprised of: (a) legal fees, $13,815,95; (b) attendance fees, $1,395.00; and disbursements $491.20.
[8] For the reasons that follow, I award the Defendants costs as requested of $15,702.14.
[9] The court’s discretion in awarding costs arises under the authority of [s. 131(1) of the Courts of Justice Act][^3], and is to be exercised by a consideration of the factors in rule 57.01(1) of the Rules of Civil Procedure. These factors include the principle of indemnification, the reasonable expectations of the parties, the complexity of the proceeding, the importance of the proceeding, and the conduct of the parties in litigation.
[10] The traditional discretionary principles developed for costs awards are codified in rule 57.01(1), which states:
Factors in Discretion
57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) 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;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and
(iii) any other matter relevant to the question of costs.
[11] The most general rule about costs, not to be departed from without good reason, is that costs at a partial indemnity scale follow the event, which is to say that normally costs are ordered to be paid by the unsuccessful party to the successful party on a partial indemnity scale.[^4]
[12] A critical controlling principle for the awarding of costs is that the sum awarded reflect the fair and reasonable expectations of the unsuccessful litigant.[^5] The overriding principle in awarding costs is reasonableness.[^6]
[13] In the immediate case, Mr. Derenzis accepts the general principles that govern costs awards, and he does not suggest that Messrs. Johnson, Doto and Aivalis’ claim for costs is unreasonable or beyond the reasonable expectations of the unsuccessful party.
[14] As some demonstration of the reasonableness of the Defendants’ claim for costs, it may be noted that Mr. Derenzis, who only recently came to have the assistance of a lawyer, revealed that his own claim for costs on a partial indemnity basis was $12,311, all inclusive.
[15] However, Mr. Derenzis argues that there is a case to be made that because of his impecuniosity and because of the failure of his union to provide him with litigation support, there should be no order as to costs. He also argues that should costs be awarded, the amount of costs should be reduced because of his partial success in being permitted to pursue his battery claim against Mr. Aivalis.
[16] In the circumstances of the immediate case, neither argument justifies a reduction of the costs for the motions that were before the court.
[17] The success of Messrs. Johnson, Doto and Aivalis’ motion is not diminished by the circumstance that Mr. Derenzis may pursue a battery claim against Mr. Aivalis. The costs of that action will be determined in the context of that action.
[18] As for the matter of Mr. Derenzis’ impecuniosity, his union is not a party to this litigation, and it is a disputed matter, which I cannot resolve in this action, whether Mr. Derenzis has a genuine grievance against the union because of its alleged refusal to support Mr. Derenzis’ claims against Messrs. Johnson, Doto and Aivalis or based on the allegations in one or other of his pleadings.
[19] Moreover, Mr. Derenzis’ claims are statute-barred claims, and it cannot be assumed that that the Defendants did anything wrong or that they are the cause of Mr. Derenzis’ hardships or impecuniosity.
[20] While I accept that a litigant’s impecuniosity is a relevant factor to consider when exercising the court’s jurisdiction with respect to costs,[^7] it is not a basis to reduce costs in the circumstances of the immediate case.
[21] Accordingly, I order costs as requested.
Perell, J.
Released: September 23, 2021
[^1]: S.O. 2002, c. 24, Sch. B. [^2]: R.R.O. 1990, reg. 194. [^3]: R.S.O. 1990, c. C-43. [^4]: McCracken v. Canadian National Railway, 2012 ONSC 6838; Hague v. Liberty Mutual Insurance Co., 2005 CanLII 13782 (ON SC), [2005] O.J. No. 1660 (S.C.J.); Pike's Tent and Awning Ltd. v. Cormdale Genetics Inc. (1998), 27 C.P.C. (4th) 352 (Ont. Gen. Div.); Bell Canada v. Olympia & York Developments Ltd. (1994), 1994 CanLII 239 (ON CA), 17 O.R. (3d) 135 (C.A.). [^5]: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 at para. 24 (C.A.); Stellarbridge Management Inc. v. Magna International (Canada) Inc., 2004 CanLII 9852 (ON CA), [2004] O.J. No. 2102 at para. 97 (C.A.); Zesta Engineering Ltd. v. Cloutier (2002), 2002 CanLII 25577 (ON CA), 21 C.C.E.L. (3d) 161 at para. 4 (Ont. C.A.); McGee v. London Life Insurance Co., [2008] O.J. No. 5312 at paras. 5-8 (S.C.J.); Caputo v. Imperial Tobacco Ltd. (2005), 2005 CanLII 63806 (ON SC), 74 O.R. (3d) 728 at paras. 23-25 (S.C.J.). Lee v. General Motors Co. of Canada, [2004] O.J. No. 2245 (S.C.J.). [^6]: Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 at para. 52 (C.A.). [^7]: Daly v. NYX Tannery Ltd. 2021 ONSC 1349 at paras. 132-34; Pilotte v. Gilbert, 2016 ONSC 1334 at paras. 10-11; Agius v. Home Depot Holdings Inc., 2011 ONSC 5272 at para. 17; Walsh v. 1124660 Ontario Ltd., 2007 CanLII 27588 (ON SC), [2007] O.J. No. 2773 at paras. 15-20 (S.C.J.).```