Court File and Parties

COURT FILE NO.: CV-13-485168

REASONS RELEASED: 20210917

COSTS ENDORSEMENT RELEASED: 20220220

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

INDIRA SINGH

Plaintiff

• and-

HANSMATTIE PERSAUD

Defendant

BEFORE: ASSOCIATE JUSTICE McGRAW

COUNSEL: T. Murray and A. Saharov E-mail: tyler@jurianszli.com -for the Plaintiff

L. Ciotoli E-mail: lou@ciotoli -for the Defendant

COSTS ENDORSEMENT RELEASED: February 20, 2022

Costs Endorsement

[1] By Order and Endorsement dated September 17, 2021, I granted the Plaintiff leave to amend her Statement of Claim to add a claim for a Certificate of Pending Litigation (“CPL”) and other remedies and ordered the Defendant to produce certain documents within 45 days.

[2] The Plaintiff’s motions, together with her undertakings and refusals motion, were originally returnable April 16, 2020 but adjourned as a result of the suspension of regular court operations due to the COVID-19 pandemic. The motions were assigned to me and a telephone case conference was held on August 10, 2020. I seized myself of the matters and another case conference was held on September 17, 2020 during which I scheduled the motions for November 16, 2020.

[3] As set out in my Endorsement dated November 16, 2020, the undertakings and refusals motion was resolved with case management and directions. The pleadings motion did not proceed as the parties did not file Factums. Amendments to the Statement of Claim were discussed and I ordered the Plaintiff to deliver an Amended Statement of Claim so that the parties could determine if the motion was still necessary. With respect to the Plaintiff’s request for additional mortgage, property tax and utilities documents, I ordered the parties to identify what had been produced and what might be responsive and to bring it back before me if necessary.

[4] Further telephone case conferences were held on May 6, 2021; May 20, 2021; June 7, 2021; and June 29, 2021 to discuss the potential agreement of the Defendant not to dispose of or encumber the property, the additional productions and other issues such as property insurance.

[5] The Plaintiff seeks costs of the motions in the amount of $12,000 on a partial indemnity scale. The Defendant submits that there should be no costs, that costs should be in the cause or at most, no costs should be awarded for the period prior to May 19, 2021.

[6] Subject to the provisions of an Act or the Rules, 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 costs shall be paid (s. 131(1), Courts of Justice Act (Ontario)). In exercising its discretion, in addition to the result and any offer to settle made in writing, the court may consider the factors set out in Rule 57.01(1).

[7] The overriding principles in determining costs are fairness and reasonableness (Boucher v. Public Accountants Council for the Province of Ontario, (2004) 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)). The general rule is that costs on a partial indemnity scale should follow the event except for very good reasons such as misconduct, miscarriage in procedure or oppressive or vexatious conduct (1318706 Ontario Ltd. v. Niagara (Regional Municipality) (2005), 2005 CanLII 16071 (ON CA), 75 O.R. (3d) 405 (C.A.)).

[8] The Plaintiff submits that she was entirely successful on the motions. This is not accurate. The Plaintiff was substantially successful on the production motion and the pleadings motion was resolved on consent. In any event, I am satisfied that the Plaintiff is entitled to costs reflective her success on the production motion and to account for the Defendant’s conduct which made the motions necessary and added unnecessary time and costs (Rules 57.01(1)(e)(f)(g)).

[9] The Defendant had numerous opportunities to agree to the pleadings amendments. She finally elected to do so on September 16, 2021, the day before the final return of the motion. I am satisfied that the Defendant would not have agreed to the amendments without the motion and that her delay in consenting was unnecessary and added costs for which the Plaintiff should be partially indemnified. The Defendant also failed on numerous occasions to respond or complete steps directed in case conferences which could have resolved the disputed issues sooner. In concluding that it was necessary to re-schedule the motions, I stated as follows at paragraph 2 of my Endorsement dated July 2, 2021:

“The Defendant has not responded to any of the issues in the Endorsement including whether she will consent to the draft Amended Statement of Claim and/or agree to terms of a caution or CPL on title. Given the lack of progress in trying to resolve the disputed issues, it is necessary to schedule the motion.”

[10] The Defendant attributes a good portion of the delay to her personal circumstances during the pandemic. While I am empathetic to her situation and have taken this into consideration, it does not disentitle the Plaintiff to costs. In my view, it is a relevant factor in determining quantum. Deciding whether or not to agree to the pleadings amendments did not require the Defendant to take active steps. The same decision that was made in September 2021 could have been made much sooner. This was in addition to the delay and failure to take other more active steps, as agreed or directed.

[11] I have also taken into consideration that the motions were straightforward and non-complex but important to both parties in the overall context of the litigation. The amount awarded also reflects a reduction for some overlap related to the involvement of multiple lawyers based on my review of the Plaintiff’s Costs Outline.

[12] In all of the circumstances, I am satisfied that it is fair and reasonable and within the reasonable expectations of the parties for the Defendant to pay costs to the Plaintiff fixed in the amount of $7,000 within 30 days.

Released: February 20, 2022

Associate Justice McGraw