COURT FILE NO.: CV-12-470665

DATE: 20211008

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Dragan Varjacic and

Dr. Miroslav Milenkovic

Plaintiffs and

Defendants by Counterclaim

Radoslav Varjacic and Natasha Varjacic

Plaintiffs

– and –

Nenad Radoja, Svetislav Volonovic, Susan Glenn and Milan Djordjevic

Defendants and

Plaintiffs by Counterclaim

– and –

Rade Cavic, Stevo Gajic, Ljubormir Jovancevic, and Djuro Zdero

Third Parties

Dragan Varjacic, Self-Represented

Dr. Miroslav Milenkovic, deceased

Richard Parker, Counsel for

Radoslav Varjacic and Natasha Varjacic

Ben Fulton, Counsel for Nenad Radoja

Susan Glenn, Svetislav Volonovic and

Milan Djordjevic, Self-Represented

Rade Cavic and Stevo Gajic, Self-Represented

Ljubormir Jovancevic and Djuro Zdero – not participating at trial

HEARD: In writing

COSTS DECISION

Justice L. Sheard

Background

Background

1This litigation related to membership in the Hamilton branch of the Royal Yugoslav Army Combatants’ Association in Canada-Draza Mihailovic (the “RYACA”), an unincorporated association.

2Following a trial that spanned 14 days, on September 1, 2021, I released Reasons for Judgment (the “Reasons”). The relief sought by the plaintiffs was granted, in part, and the relief sought by the defendants/plaintiffs by counterclaim was dismissed in its entirety. On that basis, I found the defendants presumptively liable to pay the costs of the successful parties (Reasons, at para. 179).

3The parties were urged to agree on costs, failing which, the parties were permitted to file cost submissions not to exceed five pages, exclusive of any Bill of Costs or Offers to Settle. This costs decision follows my receipt and review of the costs submissions filed with the court. Although invited to do so, the defendants, Svetislav Volanovic (“Sveto”) and Milan Djordjevic (“Milan”), did not file any costs submissions.

The Parties

The Parties

4As noted in the Reasons, one of the plaintiffs, Dr. Miroslav Milenkovic, was deceased as at the time of the trial. A second plaintiff, Dragan Varjacic (“Danny”) was self-represented. The other two plaintiffs, Radoslav Varjacic and Natasha Varjacic (“Roy” and “Natasha”), were represented by counsel, Richard H. Parker.

5The defendant, Nenad Radoja (“Ned”), was represented by counsel, Ben Fulton.

6The other three defendants, Sveto, Susan Glenn (“Susan”) and Milan were self-represented. All three participated in the trial, although Milan participated via telephone as he was confined to bed for medical reasons.

7The third parties, Ljubornir Jovancevic and Djuro Zdero, took no part in the trial. The third party, Stevo Gajic, was elderly and unwell at the time of trial. He attended the trial sporadically due to his uncertain health, and very briefly testified and addressed the court.

8The third party, Rade Cavic (“Rade”) attended trial each day. Rade gave evidence and cross-examined witnesses as permitted as a third party. Rade’s involvement in these proceedings came about by reason of his membership in the RYACA and his interest in its future. Also, Rade had caused the creation of a corporate entity, Royal Yugoslav Army Combatants Association in Canada-Draza Mihailovic Inc. (“RYACA Inc.”), which had been an applicant in related proceedings.

9By order of Ramsay J., dated March 12, 2018¹ (the “Ramsay Order”), pleadings by and against the RYACA and RYACA Inc. were dismissed without costs. However, by order of January 26, 2016, Court File Number 15-55465, Carpenter-Gunn J. reserved the costs of the court attendance of that date, to the trial judge (the “Carpenter-Gunn Order”). On that basis, Rade was invited to make submissions with respect to his costs of the court attendance before Carpenter-Gunn J.

10The parties were unable to agree on costs. Cost submissions were received from the following:

(1) Danny: prepared by lawyer, Eric D. Freedman, a five-page written submission, with attached invoices from three law offices: i) David Milosevic; ii) McHugh Whitmore; and iii) Eric Friedman;

(2) Roy and Natasha: prepared by Mr. Parker, a Bill of Costs dated September 13, 2021 and, on October 5, 2021, a Reply to the Defendant’s Cost Submissions. Roy and Natasha did not file separate written costs submissions but in their closing submissions, submitted by Mr. Parker, they stated that they seek costs on a substantial indemnity basis from Ned, Susan and Sveto;

(3) Rade: a letter from Barry L. Yellen, a lawyer with Ross & McBride LLP, which enclosed an invoice dated August 29, 2017 covering the period July 19, 2017 to August 29, 2017;

(4) Ned: prepared by Mr. Fulton, a six-page written submission, accompanied by Appendices 1 through 16, attaching various documents. Appendix 3 required four separate emails; and

(5) Susan: a two-page written submission.

11No costs submissions were received from Sveto or Milan and the only reply submissions came from Roy and Natasha.

The Law

12Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, gives the court the discretion to determine by whom and to what extent costs are to be paid.

13In civil litigation, costs usually follow the event. That rule should not be departed from except for very good reasons (see Gonawati v. Teitsson 2002 41469 (ONCA), [2002] CarswellOnt 1007 (Ont. C.A.)], 2002 41469 and Macfie v. Cater, 1920 401 (ON SC), [1920] O.J. No. 71 (H.C.J.) at para 28): Usanovic v. La Capital Life Ins., 2016 ONSC 5795, at para. 7.

14The general principles applicable to party and party costs are well settled. Costs are discretionary. Rule 57.01 of the Rules of Civil Procedure sets out factors that the court may consider in exercising its 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

(i) any other matter relevant to the question of costs.

15Overall, the objective is to fix an amount that is fair and reasonable, having regard for, among other things, the expectations of the parties concerning the quantum of costs: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) at paras. 26 and 38.

Positions of the plaintiffs, and Rade

Costs Claimed by Danny

Positions of the Plaintiffs and Rade

16Danny asks for costs from all four defendants on a substantial indemnity scale.

17Danny seeks reimbursement of his legal fees, and in addition, costs of $100 per day as “a reasonable fee for my self representation for the 15 days of trial”.

18As evidence of fees incurred Danny submitted:

(i) two invoices from the law offices of David Milosevic, dated June 3, 2012 and February 15, 2013, respectively. Both are addressed to the RYACA, 1227 Barton St. E. P.O. Box 47544, Hamilton Ontario and reference “Litigation Re: Shareholder Dispute”;

(ii) the June 3, 2012 invoice is for $2,014.73. The attached trust statement shows that a total of $1,600 was paid by way of a retainer. Of that amount, Danny is shown to have paid $800.

(iii) the February 15, 2013 invoice is for $1,610.62, which includes a balance owing of $202.98 from a previous invoice. The previous invoice is not included in the materials filed. The services include drafting affidavits “Varjacic/Milenkovic” and the disbursements include a photocopy of expense for the Application Records.

(iv) an invoice from the law firm of McHugh Whitmore LLP dated September 12, 2019 and the total amount of $423.75 inclusive of taxes. The services rendered are described as: “Meeting with you in respect to a consultation”. This invoice is addressed to Danny at an address in Scarborough, Ontario;

(v) a billing journal apparently from lawyer, Eric D. Freedman, listing fees rendered between January 16, 2018 and January 2, 2019. It references four matter numbers but provides no description of the services rendered. The fees for the four matters total $5,580, inclusive of taxes and disbursements;

(vi) an invoice dated September 12, 2021 from Eric Freedman addressed to Danny (without a street address) in the amount of $1000 plus HST of $130 for a total invoice of $1,130. The services are described as: September 12, 2021 review trial decision and complete costs submissions for client and email to him the same. (I note that though Danny has personally signed his cost submissions, they bear the hallmarks of professionally-prepared submissions: they are properly bound and formatted and are clear, concise and persuasive.);

(vii) in his cost submissions, Danny states that he spent a further $4,000 in legal fees for which he could not find invoices.

19Danny claims a total of $10,000, based on the $15,403.75 he asserts to have paid in legal fees plus the $1,500 he claims as a self represented litigant from the four defendants on a joint and several basis - $16,903.75 in total.

Analysis:

(a) Costs Claimed as a Self-Represented Litigant

Analysis: Costs Claimed by Danny

20Danny references 15 days of trial; in fact, there were only 14 trial days and the first day was a very brief attendance via ZOOM.

21For a self-represented lay litigant to be entitled to costs, they must establish “that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation and that, as a result, they incurred an opportunity cost by foregoing remunerative activity”: Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228, citing Fong v. Chan, (1999) 1999 2052 (ON CA), 46 O.R. (3d) 330 (C.A.).

22A self-represented lay litigant is not entitled to compensation for “the time and effort that any litigant would have devoted to the case” but “only for the work done by the self-represented litigant over and above the normal involvement of a client, and provided it concerns work that would ordinarily be accomplished by a lawyer. The self-represented litigant must also show that an opportunity cost was incurred because some remunerative activity was forgone”: Benarroch, at para. 27.

23Danny does not allege, nor is there evidence, that he gave up remunerative activities in order to represent himself at trial or, that in attending the trial in which he was a named plaintiff, Danny devoted more time and effort to the case than would have any litigant.

Disposition: Danny’s Claim for a per diem award

24I can find no basis in fact or in law on which to award Danny’s claim for payment of $100 per day for his attendance at trial.

25Given the conclusion reached above, I need make no reference to the cost submissions of Ned and Susan on this issue.

(b) Legal Fees: Amount and Scale

Legal Fees: Amount and Scale

26The onus is on Danny to provide evidence of costs incurred. His evidence is lacking: the description of the work referenced in the McHugh Whitmore invoice is too vague to connect it to this litigation. Also, without seeing copies of the invoices, the Eric D. Freedman billing journal is too lacking in detail to establish that it relates to this litigation. Finally, without being provided with any supporting evidence, I cannot accept Danny’s assertion that he paid an additional $4,000 in legal fees.

27I do accept Danny’s evidence that he paid an $800 retainer and the invoice of $1,610.62 referenced above, respectively, in the June 3, 2012 and February 15, 2013 Milosevic accounts. The latter account refers to the Application records, from which I am conclude that both of these accounts relate to the Application which was converted to this action. I also accept that the Freedman account dated September 12, 2021 in the amount of $1,130 relates to this action.

28In total, I find that Danny has established that he has incurred legal fees of $3,540.62.

29In making that determination, I have considered, but do not set out here, the submissions made by Ned and Susan respecting the quality of Danny’s evidence respecting his legal fees.

30Danny seeks reimbursement of his fees on a substantial indemnity scale on the basis that he was accused of fraud, which the defendants did not prove at trial; the defendants wasted days of trial time in those accusations; and the defendants incurred procedural and evidentiary errors which included failing to produce relevant documents and giving hearsay evidence.

31Danny’s assertion that the defendants should pay his costs on a substantial indemnity basis have merit. As noted in the Reasons, in the face of the documentary evidence that Danny’s membership in the RYACA was terminated for non-payment of membership dues, at trial, in their closing submissions, and in their costs submissions, the defendants pursued assertions that Danny misappropriated funds and used the RYACA lands for personal use and profit. These allegations of wrongdoing were not substantiated. There is also merit to Danny’s submission that the defendants failed to produce relevant documents. In my view, the conduct of the defendants warrants an award of costs on a higher than partial indemnity scale.

Disposition: Danny’s Costs

Disposition: Danny’s Costs

32For the reasons above and set out below respecting the indemnity scale to be awarded to Roy and Natasha, I fix Danny’s costs at $2,480, all inclusive. These costs are payable by Ned, Susan, Sveto and Milan, on a joint and several basis.

Costs Claimed by Rade

Costs Claimed by Rade

33As stated in the Reasons, Rade’s entitlement to claim costs is limited to the costs of his attendance on January 26, 2016, preserved by the Carpenter-Gunn Order. Rade provided no evidence concerning his costs of that court attendance. Instead, Rade submitted a letter from Mr. Yellin respecting services rendered and fees charged in 2017. As the Ramsay Order dismissed the proceedings by and against RYACA Inc., without costs, there is no basis upon which I could award him any costs related to that entity or court proceeding.

34It is my understanding that it was through Rade’s efforts that a Certificate of Pending Litigation (the “CPL”) was issued against the 16 acre parcel of land in Stoney Creek owned by the RYACA (the “Property”), which had been transferred to Ned as sole registered owner, without authority. Among other things, the Carpenter-Gunn Order directed that title to the Property be reconveyed to the RYACA. The CPL remains registered against the Property.

Disposition: Rade’s Costs

Disposition: Rade’s Costs

35Despite that Rade’s efforts may have led to the preservation of the Property for the RYACA and its members, based on the Ramsay Order, I conclude that there is no factual or legal basis upon which to award costs to him.

36Given my finding respecting Rade’s claim for costs, I need make no reference here to the costs submissions of Ned and Susan respecting Rade’s claim for costs.

Costs Claimed by Roy and Natasha

(a) Costs claimed only as against Ned, Susan and Sveto

Costs Claimed by Roy and Natasha

37As mentioned above, no formal costs submissions were received by the court from Roy and Natasha. Rather, at the final page of their written submissions dated June 8, 2021, the relief sought by Roy and Natasha included that Ned’s application to sell the subject property and to have it vacated “be dismissed with costs on a substantial indemnity basis as against” Ned, Susan and Sveto. They do not seek costs from Milan.

Costs Claimed Only as Against Ned, Susan and Sveto

38As noted in the Reasons, the pleadings were somewhat unconventional. They were a creation of court order, through which various applications were to be treated as pleadings. Pursuant to the Order of Reid J. dated March 28, 2018 (the “Reid Order”), Roy and Natasha were added as plaintiffs to these proceedings without requiring Roy, Natasha and Danny to be jointly represented. As a result, Danny acted on his own behalf and Roy and Natasha were represented. They sought different, and at times, conflicting relief. For example, Danny sought an order prohibiting Natasha from running for President of the RYACA. The Reid Order prohibited the delivery of further pleadings, without leave of the court. No additional pleadings were filed.

39The pleadings contained no cross-claims by any of the defendants, each of whom put forth his or her own defence/counterclaim. There were no motions at trial to amend the pleadings and, accordingly, the trial proceeded as per the directions set out in the Ramsay Order, the Carpenter-Gunn Order, and the Reid Order.

40Roy and Natasha are free to identify and seek relief different from that sought by Danny. As such, they are free to seek costs from Ned, Susan and Sveto and not from Milan. Their position also makes sense, given the evidence given by Milan at trial and his position in the litigation. For example, at trial, Milan supported Roy and Natasha’s position that Natasha act as president, something that was opposed by the other defendants.

(b) Amount Claimed

Amount Claimed

41Based on the Bill of Costs filed, Roy and Natasha are claiming recovery of the legal fees incurred relating to their retainer of lawyer, Richard H. Parker, as their trial counsel, from and after May 15, 2021.

42The Bill of Costs records time spent by Mr. Parker in meeting with his clients on May 15, 16, and 17, 2021, time spent for preparing for trial, and a daily charge of seven hours for attending at trial on each trial day from May 17, 2021 to June 4, 2021.

43Mr. Parker’s Bill of Costs includes May 22, 2021 as a trial day. That is an error, as May 22, 2021 was a Saturday. On that basis, those costs are to be removed from the Bill of Costs.

44The Bill of Costs also includes charges for 14 days of travel time to Hamilton where the trial took place, from Toronto, where Mr. Parker started his day. The travel time charged for the first day of trial, Monday, May 17, 2021, also appears to be an error; on this day, the court attendance was via by ZOOM and no one attended in person and the parties agreed to resume the trial, in person, on the following day. The parties’ attendance for the trial on May 17, 2021 was very brief, and consisted of a brief ZOOM attendance at which it was agreed that the trial would have to proceed in person to accommodate the many self-represented litigants who had little or no ability to participate in a virtual trial. Following that appearance, the court time on May 17, 2021 was to hear an in camera motion brought by Mr. Fulton.

45For the reasons explained above, I reduce the time charged by Mr. Parker on May 17, 2021 to attend at trial to one hour and eliminate the time entry for travel to and from Hamilton.

46The Bill of Costs includes three hours spent to prepare written closing submissions on June 8, 2021 and time spent to review the written submissions received from the defendants and then to prepare a response to those written submissions. No objection has been taken to the time spent on those services. I see no basis to interfere with the time charged.

47The Bill of Costs shows Mr. Parker’s year of call to be 1972 and his full hourly rate to be $500. No objection has been taken to the hourly rates charged by Mr. Parker and I see no basis to do so and accept that hourly rate is within the range charged by senior counsel.

48As explained above, I reduce the fees charged in the Bill of Costs by a total of $7,650: attendance at trial on May 17, 2020 is reduced by $3,000 (6 hours x $500); travel time on that day is eliminated: $300 (2 hours x $150); and the fees charged for May 22, 2021 of $4,350 (8.7 x $500) are eliminated. With these reductions, I calculate Mr. Parker’s total fees to be $60,050 ($67,700 - $7,650), before HST (13%).

Position of Ned and Susan as to their liability for costs

Position of Ned and Susan as to Their Liability for Costs

49Susan began her cost submissions by stating that she agrees with the submissions made by Mr. Fulton on behalf of Ned. On that basis, I consider Ned’s and Susan’s submissions collectively.

(i) Costs awarded should be considered a debt of the RYACA

Costs Awarded Should be Considered a Debt of the RYACA

50In their costs submissions, both Ned and Susan submit that the court should consider the cost to be a debt of the RYACA. They assert that the defendants were always acting in good faith as directors of the RYACA Board.

51At trial, the endorsement of Ramsay J. dated March 12, 2018, was entered by Ned as an exhibit (Exhibit 26.1). In it, Ramsay J. stated: “The unincorporated Association is not an entity and costs cannot be ordered against it.” I agree. The RYACA is not an entity and, accordingly, no costs will be awarded against it.

52Ned and Susan submit that the defendants were always acting in good faith and as directors of the RYACA Board. Those submissions conflict with my findings at trial. As set out in the Reasons, the defendants, or some of them, acted without authority and did not follow the RYACA’s Constitution or its accepted practice. The defendants, or some of them, improperly instructed a lawyer to transfer title of the RYACA lands to Ned and to advertise the property for sale, through Susan.

53The submissions that the defendants’ actions were done in good faith also conflict with my findings in the Reasons relating to the defendants’ allegations that Danny had misapplied or misappropriated RYACA funds. Those allegations were simply not borne out by the evidence at trial.

54For the above reasons, I reject entirely the submissions of Ned and Susan that the RYACA should be responsible to pay the costs of this litigation.

(ii) The plaintiffs’ conduct should deprive them of costs

The Plaintiffs’ Conduct Should Deprive Them of Costs

55In his submissions, Ned submits that knowing that Mr. Fulton, Ned’s lawyer, is blind, the plaintiffs produced documents in “an illegible form”.

56There is no evidence to support that submission.

57Ned submits that the plaintiffs refused to consent to case management.

58There is no evidence to support that assertion.

59A reference to a request for case management is found in the endorsement of Skarica J. dated May 12, 2021. He notes that such a request must be made to the Regional Senior Justice and that the request for case management was filed for the first time on the motion before him, “nine years into this litigation”. Skarica J. concludes that although he did not have jurisdiction to make the order, he would not have made it in any event.

60Ned submits that the plaintiffs refused to mediate.

61Ned claims that it was an abuse of process for Danny to move his application from Toronto, where mediation was mandatory, to Hamilton, where mediation is not mandatory. Further, Ned submits that had the parties entered into mediation, it would have led to a settlement of the entire case in 2013.

62There is no evidentiary basis to support the assertion that the defendants or any of them sought to take part in mediation and/or that the plaintiffs or any of them refused to do so.

63Ned relies on Canfield v. Brockville Ontario Speedway, 2018 ONSC 3288 for his submissions that a refusal to mediate can render a party liable for costs. In my view, Canfield has no application to the facts in this case.

64Ned submits that the plaintiffs failed to disclose documents, delayed the proceedings, and made the proceedings unnecessarily complicated.

65I do not agree. As noted in the Reasons, it was the defendants who often failed to make full and timely disclosure of documents. Also, as noted in the endorsements found in the Trial Record, it was the defendants who repeatedly sought to postpone the trial.

66Ned asks this court to consider behaviour of the plaintiffs that he alleges occurred after the release of the Reasons which, he submits, warrants granting costs to the defendants. Ned has attempted to put “evidence” before the court in the Appendices attached to his cost submissions documents.

67Ned’s attempt to put “evidence” before the court by various documents attached to his costs submissions that were not in evidence at the trial and which have not in any way been tested, is improper, inappropriate, and in contravention of the guidelines for cost submissions set out in the Reasons. I have not considered such documents.

68Ned has also made allegations concerning actions taken by Roy and/or Natasha while the litigation was ongoing.

69There is no evidence to support these allegations. For example, there is no evidence that Roy interfered with Ned’s ability to pay the RYACA’s property taxes by changing the mailing address; or that Roy and Natasha were asked to and refused to attend an examination for discovery. Also, the Reid Order provides that no further discoveries are to take place without a court order.

70Ned submits that Milan should not be excluded from payment of any costs that are awarded to Roy, who, Ned asserts, has been sympathetic toward Milan, assisted him in his closing submissions and, in 2019, sought to have him removed as a defendant. Again, to support this assertion, Ned has attached a document as an Appendix to his cost submissions. I give no weight to that document, which is improperly put before the court.

71In the Reasons, I addressed, and dismissed, the defendants’ complaints that Roy had assisted Milan in filing his closing submissions.

72Finally, it is up to the plaintiffs to identify against whom they seek relief. The defendants acted separately, and, despite being open to them to do so, none cross-claimed against the others for contribution or indemnity.

(iii) Credit given for Costs awarded to Ned

Credit Given for Costs Awarded to Ned

73Ned submits that Roy and Natasha owed him $1000 plus HST in costs that were awarded by the Reid Order. In fact, the Reid Order awarded costs to Ned “in the cause”. As Ned was unsuccessful in the cause, he is not entitled to those costs.

(iv) Failure to Accept Rule 49 Offer

Failure to Accept Rule 49 Offer

74Ned submits that in July 2017, there was an offer to settle that qualifies as an offer under 49 of the Rules of Civil Procedure² and, thereafter, the defendants are entitled to their costs on a partial indemnity basis pursuant to the provisions of r. 49(10).

75The document that Ned identifies as a r. 49 offer is attached at Appendix 2 of Ned’s costs submissions. This unsigned and undated document, purportedly sent by “Order of the Board”, is a Notice of Meeting of the Members the RYACA to be held on June 3, 2017 to approve proposed settlements, that are described in the attached schedule (the “Notice”).

76For reasons too numerous to list, I do not accept that the Notice constitutes a r. 49 Offer.

77To begin, it does not refer to this litigation. The schedule references the settlement of the proceeding brought by the RYACA, Court File No. 15-55465; a proceeding brought by Roy, Court File No. CV-16-561751; and a proceeding brought by Danny and Dr. Milenkovic, Court File No. 15-55606. This action bears court file CV-12-470665 and, as per the Ramsay Order, comprises the proceedings in CV-15-55177 and CV-15-55465. However, the Ramsay Order dismissed any proceedings brought by or against the RYACA and the RYACA Inc. As a result, after the Ramsay Order, RYACA was no longer a party.

78Additionally, it is not clear on whose behalf the Notice was sent, or to whom it was sent. Ned has provided no evidence to show whether and when this Notice was served on the plaintiffs in this proceeding and if the “offer’ was still open for acceptance after this trial commenced, nor evidence as to what position, if any, was taken by any of the plaintiffs to the purported “offer”.

79Moreover, the settlement proposal contemplates leaving the “Authorized Officers” (unidentified) to proceed with the settlements in a form and content as the “in their absolute discretion determine to be necessary or desirable”. As such, it would appear that while the proposed resolution contemplates the resolution of certain court proceedings (not this one), and a release in favour of Ned, it leaves the right to determine the future of the RYACA and, in particular, the ownership and/or sale of the Property to the Authorized Officers - presumably members of or appointed by the “Board”.

80The authority of the defendants as members or officers of the Board to make decisions concerning the Property was at the very heart of this litigation. In the Reasons, the court concluded that by 2017, none of the defendants had authority as board members of the RYACA and there remained no members of the RYACA. On that basis too, the document at Appendix 2 is of no force or effect.

(v) Indemnity Rate Disputed

Indemnity Rate Disputed

81Ned has raised no issue with the hourly rate charged by Mr. Parker, nor with the time Mr. Parker docketed to prepare for and to attend at the trial. Ned does object to the calculation of the partial indemnity rate set out in the Bill of Costs. The Bill of Costs calculates the substantial indemnity rate at 80% and the partial indemnity rate at 70%.

82Ned submits that a partial indemnity rate should be between 40 and 60% but that because Roy “complicated the proceedings and has continually harassed members of the association, he should be entitled to more no more than 50% if anything.”

Analysis: Roy and Natasha’s Costs

Analysis: Roy and Natasha’s Costs

83As stated above and in the Reasons, the defendants were the unsuccessful parties and the plaintiffs were the successful parties in this litigation. As there is been no objection made to the time spent, nor to the hourly rate charged, and, in keeping with usual practice, I find the reasonable starting point for determining costs is calculated on a partial indemnity scale.

84Ned submits that his costs, if awarded, should be calculated on partial indemnity costs, calculated at 60% of his actual fees; the top of Ned’s suggested range for a partial indemnity rate.

85For the purposes of my analysis, I have used the rate of 60% to calculate Roy and Natasha’s partial indemnity costs at $36,030 ($60,050 x 60%) plus HST (13%) of $4,683.90 for a total of $40,713.90. However, the analysis does not stop there.

86I next consider the rest of the factors set out under r. 57.01.

87R. 57.01(0.b) requires the court to consider the amount of costs that the unsuccessful party could reasonably expect to pay.

88In Ned’s submissions, he indicates that he and/or the defendants incurred costs of $112,555.24. Ned included invoices rendered by lawyer Dean Peroff whose hourly rate was $500 in 2017. That evidence assists me in satisfying my obligation to consider what the defendants, or at least Susan and Ned, would have reasonably expected in the event they were unsuccessful at trial.

89I conclude that the defendants would have reasonably expected that the lawyer retained by Roy and Natasha would or could have an hourly rate similar to that charged by Mr. Peroff. Having accepted Ned and Susan’s submissions that their partial indemnity costs should be calculated at the rate of 60%, it is reasonable to find, which I do, that they would reasonably expect to pay a like amount if they were unsuccessful.

90I must then consider whether the conduct of any of the defendants tended to shorten or lengthen unnecessarily the duration of the proceeding. I find that they did.

91As set out in the Reasons, with the exception of Milan, the conduct of the defendants at trial did tend to lengthen unnecessarily the duration of the trial. Among other things, at trial, in closing submissions, and in their costs submissions, the defendants have continued to make allegations of wrongdoing as against Danny for which they have provided no evidentiary support and/or with which their own documents conflict. Also, and as set out in the Reasons, on a number of occasions, the defendants sought to lead evidence that consisted entirely of hearsay and/or was entirely irrelevant. This conduct wasted trial time.

92In addition, and as noted in the Reasons, when Sveto chose to return to court with his interpreter on the second day of his trial testimony also resulted in wasted trial time.

93Finally, I must consider whether there is any other matter relevant to the question of costs. I find that there is.

94As noted in the Reasons, the defendants failed to make full and proper disclosure of relevant documents see, for example, Reasons at paras. 141, and 142. When testifying, the defendants attempted to put previously undisclosed documents into evidence: see, for example, Reasons at paras. 99, 100, 101, and 102.

95In his closing submissions, Ned attempted to put documents before the court that were not in evidence at the trial: see Reasons, at paras 134, 135. In his written costs submissions, Ned has, once again, attempted to have the court consider documents that are not properly before the court.

96Viewed collectively, I conclude that the conduct of Ned, Susan and Sveto warrants an award of elevated costs against them. I find that costs awarded to Roy and Natasha ought to be calculated on a rate higher than Ned’s partial indemnity rate of 60%.

Disposition: Costs awarded to Roy and Natasha

97In exercising my discretion under section 131 of the Courts of Justice Act and having applied the factors under r. 57.01, I conclude that the costs to be awarded to Roy and Natasha ought to be calculated at the rate of 70%. On that basis, I fix their costs at $42,035 ($60,050 x 70%) plus HST (13%) of $5,464.55 for a total award of $47,499.55. As requested, these costs are to payable by Ned, Susan and Sveto on a joint and several basis.

Justice L. Sheard

Released: October 8, 2021

COURT FILE NO.: CV-12-470665

DATE: 20211008

ONTARIO

SUPERIOR COURT OF JUSTICE

Footnotes

1. 1Court File Numbers CV-12-470665, CV-15-55177, and CV-15-55465.
2. 2Rules of Civil Procedure, R.R.O. 1990, Reg 194.