COURT FILE NO.: CV-21-00666069-0000

DATE: 20211117

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JOEY MARGO SALERNO Applicant

AND:

COVETED CANINES RESCUE Respondent

BEFORE: Mr. Justice Chalmers

COUNSEL: I. Iwasykiw, for the Applicant

S. Train, for the Respondents

HEARD: November 16, 2021, by teleconference

ENDORSEMENT

Overview

[1] This Application arises out of the Applicant’s attempt to adopt a dog from the Respondent. The Applicant argues that a contract was established between the parties when one of the Respondent’s volunteers congratulated the Applicant on being approved for the adoption.

[2] The Applicant failed to produce any documentary evidence to support her claim that there was an agreement to adopt the dog. The “congratulatory” e-mail was not produced. There is no e-mail, text or phone correspondence produced that sets out the terms of an agreement.

[3] The evidence produced by the Respondent establishes that there was no agreement to allow the Applicant or her partner, Simona Jelinik to adopt the dog. On July 18, 2021, Ms. Werle, the founder of the Respondent sent an e-mail to the Applicant confirming that the application to adopt the dog was denied.

[4] The Applicant responded the same day accusing the Respondent of being unjust and prejudicial. She stated that she would pursue any and all remedies in order to adopt the dog including bringing an action for specific performance. The Applicant also stated that she was considering a Human Rights Complaint. On July 22, 2021, Ms. Werle received an e-mail from counsel for the Applicant. Counsel stated that if she did not hear back from Ms. Werle by 3 p.m. that day she will seek an urgent court hearing to prevent the dog from being adopted. Counsel also stated that the Applicant will be seeking her costs of the legal proceeding “which can be in the range of up to $7,500 or more”.

[5] Ms. Werle did not respond and retained counsel.

[6] The Applicant caused the Notice of Application to be issued. The Applicant argued that the Application was urgent, and she requested an early hearing date. The parties were required to attend a case conference to schedule the motion and establish a timetable. Counsel for the Applicant requested a brief indulgence, and the Application was scheduled for November 16, 2021. The Applicant did not file any material in support of the Application.

[7] After the Application was issued, counsel for the Applicant approached the Respondent and offered to settle the Application. The Respondent did not accept the Applicant’s settlement offer.

[8] On the return of the Application today, counsel for the Applicant stated that the Application is abandoned. The Respondent is seeking its costs of the Application.

Analysis

Entitlement to Costs

[9] The Respondent argues that it was fully successful on the Application and therefore is entitled to its costs. The Applicant argues that there ought to be no costs awarded. It is her position that soon after the Application was issued, she offered to settle the matter. The Respondent refused to engage in settlement discussions. The Applicant argues that if the Respondent had agreed to settle, the costs would have been avoided.

[10] A party to a legal proceeding is not under an obligation to settle. The failure of a successful party to engage in settlement discussions does not disentitle the party to an award of costs. The fact the party was successful is support for its position that there was no merit to the proceeding.

[11] I am of the view that in this case, the Applicant attempted to use the litigation process to intimidate the Respondent and to force the adoption of the dog. The fact the Applicant did not file any material in support of the Application suggests that the Applicant did not believe the Application had merit and that she had no intention of proceeding. I am satisfied that in the circumstances of this case, the Respondent was not required to respond to any attempts by the Applicant to settle the action.

[12] As a general rule, a successful party has a reasonable expectation that his or her costs will be paid by the unsuccessful party: B.R. v. Childrens Aid Society of Metropolitan Toronto, 1995 115 (SCC), [1995] 1 S.C.R. 315 at pp. 404-5. Here, the Applicant abandoned the Application and as a result, the Respondent was fully successful. I am satisfied that the Respondent is entitled to its costs of the Application.

Amount of Costs

[13] Section 131 of the Courts of Justice Act, R.S.O. 1990 c. C.43, provides that the costs of the proceeding are in the discretion of the court. In exercising my discretion with respect to fixing costs, I considered the factors identified in Rule 57.01 of the Rules of Civil Procedure. I also considered the overall objective of any costs award; that it be fair and reasonable and within the reasonable expectation of the unsuccessful party to pay: 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, 38.

[14] The Applicant did not provide a Bill of Costs. Although there is no requirement that the losing party submit its Bill of Costs, it is preferable that it does so. If the losing party fails to file a Bill of Costs, the Court may draw an inference that the losing party’s fees on a full indemnity basis approximated those of the successful party: Smith Estate v. Rotstein, 2010 ONSC 4487, at para. 57.

[15] The Respondent’s Bill of Costs seeks payment of its costs on a partial indemnity basis in the amount of $5,927.25 inclusive of counsel fee and H.S.T. All work on the file was carried out by Sandra Train. Ms. Train was called to the bar in 2010. Her hourly rate is $450. She docketed a total of 18.7 hours.

[16] Counsel for the Applicant argues that most of the work carried out by counsel for the Respondent took place after she attempted to settle the Application and therefore the work was unnecessary. The Respondent argues that it rejected the Applicant’s attempt to settle and therefore it was necessary to prepare for the Application.

[17] Counsel for the Respondent prepared an affidavit in response to the Application and a Factum. She was required to attend a case conference to set the Application hearing date. The first hearing date was adjourned at the request of the Applicant. Counsel for the Respondent was required to prepare for and attend today’s hearing. It is my view that the hours claimed by the Respondent are not unreasonable in the circumstances.

[18] One of the factors to take into account is whether any step in the proceeding was improper, vexatious or unnecessary. I am of the view that the Application was issued in an attempt to intimidate the Respondent. The Applicant’s conduct after the Application was issued supports the finding that the Applicant had no intention of proceeding with the Application. Although an urgent date was requested and a timetable established, counsel for the Applicant did not honour any of the timelines. The Applicant did not file any materials. The Applicant seemed to think that it could issue a Notice of Application in an attempt to force the Respondent to agree to the adoption and then when there was no agreement, it could withdraw the Application without being liable for costs. I am of the view that the Applicant’s conduct was vexatious and improper.

[19] The costs are to be within the reasonable expectation of the parties. I note that counsel for the Applicant wrote to the Respondent and stated that if a legal proceeding is brought, the legal costs could be “in the range of up to $7,500 or more”. This is more than the amount claimed by the Respondent in partial indemnity fees. I am satisfied that the amount sought by the Respondent is within the reasonable expectation of the Applicant.

Disposition

[20] I conclude that a fair and reasonable assessment of the Respondent’s costs of the Application on a partial indemnity basis is $5,000, inclusive of H.S.T. This amount takes into account the factors set out in Rule 57.01 of the Rules of Civil Procedure as well as the general rule that the amount must be within the reasonable expectations of the unsuccessful party. The costs are payable within 30 days of the date of this endorsement.

DATE: November 17, 2021