Court File and Parties

COURT FILE NO.: CV-22-00681106-0000 DATE: 20230308 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: FINANCIAL HORIZONS INCORPORATED, Plaintiff – and – STEVEN McFADGEN, Defendant

BEFORE: Justice E.M. Morgan

COUNSEL: Geoffrey Janoscik and Rachel Frank, for the Plaintiff Marium Rehan, for the Defendant

HEARD: Costs submissions in writing

Costs Endorsement

[1] The Defendant, as a self-represented litigant, served a Statement of Defense. That pleading prompted the Plaintiff to bring a motion for summary judgment, having assessed the defense as raising no issue in need of a trial. The Plaintiff served its motion record and attended at a case conference with respect to the forthcoming motion.

[2] By the time the case conference came around, the Defendant had retained counsel who had prepared an Amended Statement of Defense. Plaintiff did not oppose the amendment of the Defendant’s pleading, but argued that since the new pleading dispensed with the need for a summary judgment motion it deserved compensation for costs thrown away in preparing that motion. I encouraged counsel to attempt to resolve that issue between the parties, but indicated that I would consider their cost submissions if a mutually agreeable resolution could not be reached.

[3] The parties have now made cost submissions in writing. The Plaintiff is seeking costs thrown away either on a full indemnity or a substantial indemnity basis. The amounts come to $9,604.08 and $8,682.28, respectively.

[4] Defendant’s counsel submits that costs of preparing the summary judgment should be in the cause. Defendant’s counsel further submits that if costs are awarded at this stage, they should not be awarded on a full or substantial indemnity basis as none of the Defendant’s conduct was abusive, reprehensible, or egregious. I agree with this latter statement.

[5] A party in the position of the Defendant should not suffer unduly severe financial consequences just because it was initially lacking in legal representation. While the Plaintiff deserves some modicum of compensation for its efforts, I suspect that the preparation of the motion record will have beneficial and, ultimately, economizing effects for it down the road. Given this useful aspect of the exercise, I will exercise my discretion under section 131 of the Courts of Justice Act to give the Plaintiff a reduced cost award.

[6] The Defendant is to pay the Plaintiff the all-inclusive amount of $1,000 in costs thrown away. This amount is payable forthwith.

Date: March 8, 2023 Morgan J.