Court File and Parties

COURT FILE NO.: CV-22-00677538-0000 DATE: 20220914

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: FAY ALANNA JENSEN and WALTER JENSEN, Applicants AND: ELIJAH CHARLES M. JOHNSON and MANDY GOMMLICH, Respondents

BEFORE: VERMETTE J.

COUNSEL: Luis Hernandez, for the Applicants Elijah Charles M. Johnson and Mandy Gommlich, self-represented

HEARD: In writing.

ENDORSEMENT AS TO COSTS

[1] On July 22, 2022, I released an endorsement granting the orders sought by the Applicants to terminate the Respondents’ tenancy and evict them from the rental unit, as well as damages in the amount of $47,300 for unpaid rent.

[2] The Applicants delivered costs submissions on July 29, 2022. The Respondents did not deliver any responding costs submissions within the time set out in the last paragraph of my endorsement. The Respondents were given a second opportunity to deliver costs submissions and were advised that if they did not do so by the new deadline, I would decide the issue of costs without their input. The Respondents have not delivered costs submissions.

[3] This is my decision on costs.

Position of the Applicants

[4] The Applicants seek costs on a full indemnity basis in the amount of $15,832.90 or, in the alternative, costs on a substantial indemnity basis in the amount of $12,754.95. Their bill of costs reflects costs on a partial indemnity basis in the amount of $10,600.39.[^1]

[5] The Applicants state that they were completely successful on the Application and that the case was important to them as their tenants, the Respondents, were in significant arrears of rent and in possession of the rental unit. They argue that the Respondents made the Application necessary as a result of their failure to pay their monthly rent pursuant to the lease agreement and their failure to provide any evidence whatsoever that they had paid the rent, as they alleged. According to the Applicants, the Application was a last resort to ensure that the matter was addressed.

[6] The Applicants point out that the Respondents failed to deliver any responding materials in accordance with the endorsements of Justice Glustein and Justice Pollak, and they did not respond to the Application until the hearing, after their request for an adjournment was denied.

Discussion

[7] As has been observed in many cases, costs on an elevated scale are exceptional and are reserved for those situations when a party has displayed reprehensible, scandalous or outrageous conduct: see Quickie Convenience Stores Corp. v. Parkland Fuel Corporation, 2021 ONCA 287 at para. 4.

[8] In my view, the conduct of the Respondents does not rise to that level. The fact that the Respondents did not respond to the Application until the hearing does not constitute scandalous or outrageous conduct. In fact, the costs incurred by the Applicants are likely lower as a result of the lack of response.

[9] Therefore, I conclude that the appropriate scale of costs in this case is partial indemnity.

[10] I have reviewed the Applicants’ bill of costs. Although I find it generally reasonable, I will apply a small reduction to the amount sought by the Applicants to ensure that the overall time claimed is reasonable in light of all the circumstances of this case.

[11] Taking the foregoing into account, as well as the factors set out in Rule 57.01(1) of the Rules of Civil Procedure and the reasonable expectations of the parties, I find that the fair and reasonable award of costs in favour of the Applicants is on a partial indemnity basis in the all-inclusive amount of $9,000.00. In my view, this is an amount that the Respondents should reasonably have expected to pay in the event that they were unsuccessful on the Application.

[12] The costs are to be paid by the Respondents to the Applicants within 30 days.

Vermette J.

Date: September 14, 2022

[^1]: I have added $363.00 to the amount set out in the bill of costs to reflect the fact that the Applicants are claiming an additional amount in their written submissions for the preparation of their costs submissions.