COURT FILE NO.: 19-71249
DATE: 20210201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Amanda Canning
Plaintiff/Defendant by Counterclaim Responding Party on the Motion
– and –
Jennifer Bento
Defendant/Plaintiff by Counterclaim Moving Party on the Motion
Rachelle Hepburn, Agent for Plaintiff/Defendant by Counterclaim, Responding Party on the Motion
Evan A. Presvelos, Counsel for Defendant/Plaintiff by Counterclaim, Moving Party on the Motion
HEARD: In Writing
COSTS DECISION
Justice L. Sheard
Overview
[1] Jennifer Bento, the defendant/plaintiff by counterclaim (“Bento”), brought a motion for summary judgment dismissing the action, brought by Amanda Canning (“Canning”). Bento also sought alternative relief, in the event summary judgment was not granted.
[2] I did not dismiss Canning’s action but directed a trial respecting the issue of Canning’s entitlement, if any, to a portion of the net sale proceeds of the real property in dispute. However, I did grant much of the alternate relief sought by Bento, including an order permitting Bento to sell the subject property.
[3] In the event the parties could not agree on costs, they were invited to make written costs submissions. Submissions were received and this decision follows my review and consideration of the submissions.
Background
[4] This claim concerns a dispute as to the beneficial ownership of a residential property known municipally as 82 Bousefield Rise, Waterdown, Ontario (the “Property”). Title is registered in Bento’s name but Canning asserts that she and Bento co-own the Property. Canning has been living in the Property since its purchase.
[5] Set out in my Reasons for Decision on Motion (the “Reasons”) released on December 22, 2020, I determined that Bento should be permitted to sell the Property and to receive 50% of the net sale proceeds. The other 50% was to be paid into court.
[6] I directed a trial of an issue to determine Canning’s beneficial interest, if any, to some or all of that portion of the 50% of the net sale proceeds to be paid into court.[^1] I also found as a fact that the document put forth by Canning as an agreement between Canning and Bento concerning ownership and sale of the Property (the “Alleged Agreement”) was not a valid document. The findings of fact set out in the Reasons, including my finding that the Alleged Agreement was invalid, are to be considered final and binding upon the parties.
[7] Canning opposed the motion for summary judgment and the alternate relief claimed by Bento. Central to Canning’s position was her claim that she and Bento had entered into the Alleged Agreement which, she asserts, required Canning and Bento to agree that the Property could be sold. Bento denied signing the Alleged Agreement and claimed her signature on it had been forged. On the motion, Bento established that the Alleged Agreement was not a legitimate document and was not a valid and enforceable agreement.
[8] As set out in the Reasons, although I did not grant summary judgment, Bento did obtain much of the alternate relief she sought and, as such, is presumptively entitled to some costs of this motion.[^2]
Positions of the parties
[9] Bento seeks her costs on a partial indemnity basis in the total amount of $28,028.43, which includes disbursements of $9,760.71. In Bento’s Bill of Costs, she shows fees and HST on a partial indemnity rate of $18,267.72.
[10] Bento’s disbursements include $2,708.61 for examinations and transcripts and $5,060.14 for expert reports. The two reports were from forensic document examiners who concluded that the signature on the Alleged Agreement was not Bento’s.
[11] Bento submits that she is entitled to her costs on a partial indemnity basis by reason of her success on the motion and by virtue of the conduct of Canning. Bento asserts that she incurred significant costs to address the Alleged Agreement (for example, the two expert reports), and that Canning attempted to delay the proceedings at every possible opportunity.
[12] Bento also asserts that Canning has been uncooperative and unnecessarily delayed the proceedings in order to delay Bento’s possession (and sale) of the Property, in which Canning has been living.
[13] In Canning’s costs submissions filed January 25, 2001, she asserts that she is entitled to her costs on a partial indemnity basis. Canning says that she had always asked for a trial and that a trial of an issue was ordered. Canning also identifies conduct on the part of Bento which, she asserts, supports her view that Bento has purposely created issues to ensure that Canning incurs legal fees and that Bento has refused to resolve the matter fairly and, instead, has engaged in threatening, harassing, and bullying Canning and her children.
[14] Canning advised that she had obtained legal help to file and complete her responding materials and engaged counsel to argue the motion before me. Canning says that for financial reasons, she is now self-represented, and that Bento has used Canning’s “lack of legal knowledge of the court system to undermine and mislead the Courts”.
[15] In part, Canning’s cost submissions seek to re-argue the final determination on the motion that the Alleged Agreement was invalid. The submissions also contain personal allegations against Bento, which have no relevance to the determination of costs.
[16] Canning states that she has health problems and is a single mother on social assistance and that she does not have the ability to pay the costs claimed. Canning asks that if costs are awarded against her that they be funded from the money paid into court.
[17] Canning submitted a Bill of Costs in which she shows fees on a substantial indemnity rate of $20,987.20. This amount does not appear to include HST, which, if added, would increase the fees to $23,715.54. On a partial indemnity basis, Canning’s fees would be $14,564.80 + HST of $1,893.42 for total of $16,458.22. Canning’s disbursements total $5,301.22, including HST. Those disbursements include an amount paid for transcripts, and for expert reports and consulting fees, the latter of which, I assume, relate to the forensic document examiners retained by Canning.
[18] On a substantial indemnity basis Canning’s costs would total $29,016.76 ($23,715.54 + $5,301.22), and on a partial indemnity basis, $21,759.45 ($16,458.22 + $5,301.22).
The Law
[19] The general principles applicable to party and party costs are well settled. The successful party is presumptively entitled to their costs, which are in the discretion of the court. (Courts of Justice Act, RSO 1990, c. C.43, s. 131(1) “the CJA”)
[20] Rule 57.01 of the Rules of Civil Procedure states that in exercising their discretion under the CJA to fix costs, in addition to the result in the proceeding, a judge may consider the principle of indemnity; the amount of costs that the unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed; the amount claimed and the amount recovered; the apportionment of liability; the complexity of the proceeding; the importance of the issues; the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding; whether any step in the proceeding was improper, vexatious or unnecessary or taken through negligence, mistake or excessive caution; the complexity of the proceeding; the importance of the issues; and the conduct of any party.
[21] The overall objective is to fix costs in 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 CanLII 14579 (ON CA), [2004] O.J. No. 2634, 71 O.R. (3d) 291 (C.A.) at paras. 26, 38.
[22] Boucher, a leading authority, makes clear that in assessing costs, the overriding principle is that of reasonableness (at para. 27).
Analysis
[23] I begin my analysis with the fees and disbursements incurred by each party; they are comparable in amount. The similarity between the two sets of costs supports a finding that the partial indemnity costs sought by Bento are within the range of costs that Canning would have expected to pay, as the unsuccessful party on the motion.
[24] There is a gap in the amount incurred between the parties on expert reports: Bento spent approximately $4,459 more than Canning on forensic experts. Each party engaged two forensic document examiners. The expert evidence was directed toward whether the signature on the Alleged Agreement belonged to Bento. As noted in the Reasons, the expert reports submitted by Bento contained more in-depth analysis and were more persuasive than those submitted by Canning, only one of which was allowed into evidence.
[25] The validity of the Alleged Agreement was a significant issue on this motion and in this action, and my finding that it was invalid played a significant role in the granting of the alternate relief claimed by Bento. Given the importance of this issue, and the quality of the Reports, I find that the amount claimed by Bento for the expert reports is reasonable and that that disbursement should be allowed.
[26] Apart from the costs of expert reports, the parties incurred similar costs in this litigation. That fact alone strongly supports a finding that the costs claimed by Bento are fair and reasonable. Such a finding is also supported by the volume of materials submitted on the motion: multiple motion records, numerous affidavits, transcripts of the cross-examinations of the parties and of a witness (the parties’ father, Carson Canning), expert reports, facta and briefs of authority.
Who was the successful party?
[27] I have considered Canning’s submissions that she should be awarded costs because Bento was not successful in obtaining summary judgment. While it is accurate that a trial of an issue was ordered, the evidence before me on the motion for summary judgment was sufficient for me make a determination on validity of the Alleged Agreement – a key issue in dispute.
[28] As set out in the Reasons, my finding that the Alleged Agreement is invalid is final and binding; the Alleged Agreement will not be an issue for trial. That finding was of particular significance to the granting of Bento’s request for an order lifting the certificate of pending litigation registered by Canning against the Property (the “CPL”) and allowing Bento to sell the Property.
[29] In addition, the orders relating to the sale of the Property represent significant success for Bento as she will be freed from exposure to liability, that she, alone, carried as the sole registered owner and sole mortgagor of the Property. The order directing that Bento receive 50% of the net sale proceeds of the Property also represents a success for her: any gain on the Property may now be realized and Bento will receive 50% of the net gain.
[30] Although a trial of an issue was ordered, it is difficult to characterize that result as a success for Canning. The record clearly shows that Bento wanted the Property sold and Canning resisted its sale. The sale may now take place.
[31] I have considered Canning’s submissions because Bento was not granted summary judgment and a trial of an issue was ordered, that Canning should receive her costs. I do not accept those submissions. For the reasons set out above, I find that Bento was the successful party on the motion. Should Canning be successful at trial in establishing that she is entitled to some or all of the monies paid into court, she may then ask the trial judge for her costs in relation to that portion of the litigation.
Scale of Costs
[32] Bento asks that her costs be fixed on a partial indemnity basis. That is the usual scale, absent special circumstances. No special circumstances exist in this case and, accordingly, costs shall be fixed on a partial indemnity basis.
[33] The significance of the validity of the Alleged Agreement to the parties and to this litigation has been explained above. That issue was also significant from a costs perspective, both with respect to disbursements for experts and time spent on the motion materials and in argument on the motion. The determination of the validity of the Alleged Agreement favoured Bento, as did much of the other relief granted.
Disposition
[34] I have considered the applicable r. 57 factors and the Boucher principles. As set out above, I find that the partial indemnity costs claimed by Bento of $28,028.43, to be fair and reasonable. However, in consideration of Bento’s partial lack of success on the motion for summary judgment, I exercise my discretion under the CJA and fix Bento’s costs at $26,028.43, all inclusive.
[35] I have considered the request made by Canning that any costs awarded against her be made payable from “her” 50% of the net sale proceeds to be paid into court following the sale of the Property. Bento opposes such an order.
[36] I do not make the order sought by Canning. Who is ultimately entitled to some or all of the net sale proceeds to be paid into court will be determined by the trial judge. Until then, absent consent or a court order, those monies are to be preserved.
Justice L. Sheard
Date: February 1, 2021
COURT FILE NO.: 19-71249
DATE: 20210201
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Amanda Canning
Plaintiff/Defendant by Counterclaim Responding Party on the Motion
- and –
Jennifer Bento
Defendant/Plaintiff by Counterclaim/ Moving Party on the Motion
COSTS DECISION
Released: February 1, 2021
[^1]: Reasons for decision on Motion, Canning v. Bento, 2020 ONSC 8047 at para 68.
[^2]: Reasons at para. 77.