COURT FILE NO.: CV-18-274-00SR
DATE: 2022/12/07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Gary Howard and Julia Niblett, Plaintiffs
AND
1880485 Ontario Inc., o/a Above All Building, 1324789 Ontario Inc. and Magenta Waterfront Development Corporation, Defendants
BEFORE: Madam Justice Robyn M. Ryan Bell
COUNSEL: Denise Sayer, for the Defendant Magenta Waterfront Development Corporation
Johnathan G. Beach, moving for leave to represent 1324789 Ontario Inc.
HEARD: In writing
COSTS ENDORSEMENT
[1] Mr. Beach, a non-lawyer, was unsuccessful on his motion for leave to represent 1324789 Ontario Inc. in this proceeding: Howard v. 1880485 Ontario Inc., 2022 ONSC 6136. I invited costs submissions in the event the parties were unable to agree on costs of the motion. I have received Magenta Waterfront Development Corporation’s costs submissions. I have not received any submissions on behalf of 1324789 Ontario.
[2] As the successful party on the motion, Magenta seeks its partial indemnity costs in the amount of $6,241.67. Magenta asks that costs be payable on a joint and several basis by 1324789 Ontario, Gary Beach, and his spouse, Martha Beach. Martha Beach is 1324789 Ontario’s sole shareholder, director, and officer. Mr. Beach is the controlling mind of 1324789 Ontario and was authorized to represent the corporation’s interests in the action.
[3] In my view, the costs requested by Magenta for a straightforward motion of this nature are excessive. The time spent by counsel includes time reviewing an affidavit served by Mr. Beach prior to the hearing of the motion. These costs are not directly attributable to the motion for leave. Counsel’s hourly rates are reasonable. Having regard to the relevant factors in r. 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and the principles in Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), I conclude that a fair and reasonable amount of costs to be paid to Magenta on the motion for leave is $4,000, all inclusive.
[4] The discretion to award costs against a non-party is exercised sparingly in cases involving “gross misconduct, vexatious conduct, or conduct that undermines the fair administration of justice”: OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2021 ONCA 520, at para. 89, citing 1318847 Ontario Limited v. Laval Tool & Mould Ltd., 2017 ONCA 184, at paras. 66, 76. There was no conduct on the part of Mr. Beach or Martha Beach – non-parties to this action – that would warrant they be responsible, jointly and severally with 1324789 Ontario, for costs of the motion.
[5] Costs of the motion for leave to represent 1324789 Ontario are fixed in the amount of $4,000, all inclusive. These costs are payable by 1324789 Ontario to Magenta within 30 days.
Madam Justice Robyn M. Ryan Bell
Date: December 7, 2022
COURT FILE NO.: CV-18-274-00SR
DATE: 2022/12/07
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Gary Howard and Julia Niblett, Plaintiffs
AND
1880485 Ontario Inc., o/a Above All Building, 1324789 Ontario Inc. and Magenta Waterfront Development Corporation, Defendants
BEFORE: Madam Justice Robyn M. Ryan Bell
COUNSEL: Denise Sayer, for the Defendant Magenta Waterfront Development Corporation
Johnathan G. Beach, moving for leave to represent 1324789 Ontario Inc.
COSTS ENDORSEMENT
Justice Ryan Bell
Released: December 7, 2022