COURT FILE NO.: CV-17-00582499

READ: 202111123

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jill Marie Zenchyshyn, Plaintiff

AND:

Peel Condominium Corporation No. 7 and Vero Property Management Services, Defendants

BEFORE: Associate Justice L. La Horey

COUNSEL: Michael Kealy and Maximir Luburic, Counsel for the Moving Party Plaintiff

Sean Frankland, Counsel for the Respondents Vince Greco and Adela Hernando

HEARD: Written Submissions

Costs Endorsement

[1] In my decision on this matter (Zenchyshyn v Peel Condominium Corporation No. 7, 2021 ONSC 6727), I granted the plaintiff’s motion to amend her statement of claim on the basis of misnomer. I invited written costs submissions in the event that the parties could not agree on costs. As the parties have been unable to reach agreement on costs, they have each delivered costs submissions and costs outlines.

[2] The plaintiff seeks her partial indemnity costs as the successful party on this opposed motion in the sum of $6,069.30.

[3] The respondents submit that there should be no costs of the motion. First, they note that although the plaintiff was successful on misnomer she was unsuccessful on the discoverability issue. Second, they say that although the usual practice is to award costs to the successful party, courts have declined to do so where an indulgence has been granted.

General Principles as to Costs

[4] The starting point for the consideration of costs is s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c.C.43 which provides:

131(1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[5] The court’s discretion under s. 131 of the Courts of Justice Act is generally exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure.

[6] In DUCA Financial Services Credit Union v Bozo, 2010 ONSC 4601 at para 5, Mr. Justice Cumming described the basic approach to awarding costs as follows:

Costs are in the discretion of the Court: s. 131, Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 57.01 of the Rules of Civil Procedure. In Ontario, the normative approach is first, that costs follow the event, premised upon a two-way, or loser pay, costs approach; second, that costs are awarded on a partial indemnity basis; and third, that costs are payable forthwith, i.e. within 30 days. Discretion can, of course, be exercised in exceptional circumstances to depart from any one or more of these norms.

Analysis

[7] As noted in DUCA, the plaintiff is presumptively entitled to her costs as the successful party. She submits that this presumption has not been displaced in this case. She does not agree with the respondents’ contention that she has secured an indulgence. She submits that the correction of a misnomer is not an indulgence citing Pickering Harbour Co. v Barton, (2007), 2007 4021 (ON SC), 85 OR (3d) 526 (SCJ); [2007] OJ No. 553. The plaintiff says that she has not received the benefit of an indulgence, rather she has benefitted from a correction to the statement of claim which should have been apparent on its face to the respondents.

[8] However, Pickering Harbour dealt with a motion for leave by the defendant to issue a third party claim pursuant to the provisions of the rule which provided that the court “shall” grant leave unless the plaintiff establishes prejudice. Where the precondition of no prejudice to the plaintiff is established, the relief is granted as of right. In order words, the relief granted by the rule is mandatory, not discretionary. The court held that the mere granting of leave to issue a third party claim does not necessarily amount to an indulgence.

[9] By contrast, the plaintiff in this case moves under Rule 5.04(2) of the Rules of Civil Procedure which provides that the court “may” add, delete or substitute a party incorrectly named, unless prejudice would result that could not be compensated for by costs or an adjournment. The Court of Appeal has held that the decision to add a party on the basis of a misnomer, even in the absence of finding of prejudice, is discretionary (Omerod v Strathroy Middlesex General Hospital, 2009 ONCA 697 at para 28). In the present instance, I have exercised my discretion such that the plaintiff is, in the circumstances of this case, being granted an indulgence.

[10] The plaintiff says that even if she is being granted an indulgence, she should still be awarded her costs. She relies on the decision of JPW Niagara Limited v Sullivan Mahoney Lawyers, 2020 ONSC 6762 for the proposition that there is no general rule that a party seeking an indulgence is not entitled to costs. In that case Sweeney J. (as he then was) said at para 10:

The general rule that costs are awarded to a successful party is not displaced because the plaintiff seeks to set aside an administrative dismissal order. A blanket assertion that a plaintiff (or indeed any party) is not entitled to costs if that party seeks the court's indulgence is not consistent with the general principles of costs. It does not discourage litigation. It does not encourage resolution. It allows responding parties to take unreasonable positions because there is no risk of costs being awarded against them. There is no general rule that a party seeking an indulgence is not entitled to costs; nor should there be. The issue of costs is an exercise of discretion. [emphasis added]

[11] In resisting this motion the respondents did not take unreasonable positions.

[12] This case is similar to Acimovic v 8174709 Canada Inc, 2015 ONSC 582, where Master Muir allowed granted a motion to amend a claim on the basis of misnomer and made an order of no costs. At paragraph 25 he said:

The plaintiff has been successful and ordinarily would be entitled to costs in accordance with the court's usual practice. However, it is my view that the plaintiff has been afforded an indulgence and should be denied costs. An error was made in drafting the statement of claim and in naming the proper defendants. The plaintiff waited until just a few days before the expiry of the presumptive limitation period before he retained a lawyer to commence this action. It was reasonable for the proposed substituted defendants to oppose this motion and to insist that the plaintiff provide evidence in support of the relief sought. In my view, it is fair and reasonable that there be no order with respect to the costs of this motion.

[13] Although not fatal to the plaintiff’s motion, I did note the delay between the plaintiff’s fall in October 2015 and the time that the respondents were put on notice of the claim against them (at para 35). Further in my analysis on discoverability, I concluded that the identity of the respondents could have been discovered with the exercise of reasonable diligence on the date of the fall, or shortly thereafter.

[14] The facts before me are different than those in Reym v Martens 2019 ONSC 2806 where Master Kaufman awarded the plaintiffs costs of a motion to amend the statement of claim as a result of a misnomer. The proposed defendant ultimately consented to the amendment. The only issue before Master Kaufman was the issue of costs, specifically whether the plaintiffs should pay the defendants’ costs of opposing the motion on the basis that they were granted an indulgence. In the result Master Kaufman ordered that costs be payable to the plaintiffs in the cause. However, in that case, Master Kaufman specifically held that the plaintiffs acted with diligence in all the circumstances. The same cannot be said here.

Conclusion

[15] In the circumstances of this case, it is fair and reasonable that there be no order with respect to costs of this motion.

L. La Horey, A.J.

Date: November 29, 2021