Court File and Parties

Court File Nos.: FS-13-388522 CV-13-476682 CV-19-618833 Date: 2023-01-12 Superior Court of Justice - Ontario

Re: ARTHUR FROOM, Applicant And: SONIA LAFONTAINE, Respondent

And Between: 1285310 ONTARIO LIMITED, Applicant And: RAHIRNA PANES SHEICK-ALI and ASR MEDICAL RESEARCH CORPORATION, Respondents

And Between: ROBIN SELIGMAN, Plaintiff And: 1285310 ONTARIO LIMITED and SONIA LAFONTAINE also known as SONIA LAFONTAINE FROOM, Defendants

And Between: 1285310 ONTARIO LIMITED, Plaintiff by Counterclaim And: ROBIN SELIGMAN and THE DIRECTOR OF LAND TITLES, Defendants by Counterclaim

Before: M. D. Faieta J.

Counsel: Peter Smiley, for the Applicant, Arthur Froom H. Keith Juriansz, for the Respondent/Defendant Sonia LaFontaine also known as Sonia LaFontaine Froom Lawrence Hansen, for the Applicant/Defendant/Plaintiff, 1285310 Ontario Limited, by Counterclaim No one appearing for Respondents, Rahirna Panes Sheick-Ali and ASR Medical Research Corporation James Butson, for the Plaintiff/Defendant, Robin Seligman, by Counterclaim Andi Jin, for the Defendant, The Director of Land Titles, by Counterclaim

Heard: In writing

Costs Endorsement

faieta J.

[1] The plaintiff, Robin Seligman, and the defendant Sonia Lafontaine, on behalf of 1285310 Ontario Limited (“128”), signed a mortgage loan agreement. Lafontaine also provided Seligman with a guarantee in respect of 128’s loan.

[2] Seligman successfully brought a motion for summary judgment in respect of her mortgage enforcement action (Court File No. CV-19-618833) against 1285310 Ontario Limited (the “128”) and Sonia Lafontaine. Lafontaine consented to judgment on the guarantee and this court granted summary judgment in respect of the mortgage enforcement action: See Froom v. LaFontaine, 2022 ONSC 2930.

[3] Seligman seeks $64,111.31 plus disbursements for her costs of this proceeding. Lafontaine submits that she was successful on Seligman’s motion and seeks $32,841.04 which includes disbursements of $3,292.98. Arthur Froom seeks full indemnity costs $50,730.93 in fees.

Analysis

[4] The principles related to the award of costs in a civil proceeding were summarized by the Ontario Court of Appeal in DBDC Spadina Ltd. v. Walton, 2018 ONCA 232, at para. 4, as follows:

Costs are in the discretion of the court. The factors relevant to the exercise of discretion are set out in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. They include the result and relative success of each party, the complexity of the proceeding, the importance of the issues and the conduct of any party that impacted the duration of the proceeding. The court must consider the purposes of costs, which include both the indemnification of successful litigants for costs of the litigation and the facilitation of access to justice: Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.), at paras. 35-37.

[5] In Serra v. Serra, 2009 ONCA 396, at para. 8, the Ontario Court of Appeal stated:

Modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants.

[6] Fees should only be awarded to a self-represented party who: a) devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation; and b) as a result, incurred an opportunity cost by foregoing remunerative activity: Girao v. Cunningham, 2021 ONCA 18, at para. 9.

Success

[7] Seligman’s motion for summary judgment was granted and thus she was successful on the motion and in this proceeding.

[8] Lafontaine did not oppose Seligman’s motion. Lafontaine delivered neither responding materials nor a factum. However, Lafontaine did participate on the cross-examinations that led up to the motion for summary judgment with aim of bolstering her case that she did not engage in fraudulent conduct related to the mortgage. Lafontaine claims success as she submits that the granting of the motion for summary judgment as it simplifies these consolidated proceedings. I dismiss Lafontaine’s assertion that she was successful on the motion for summary judgment. The dispute between her and her former spouse, Arthur Froom regarding who is the true owner of the subject condominium was not resolved on this motion, nor did it have to be resolved in this proceeding, in order to decide Seligman’s claim. In no relevant sense was Lafontaine successful on this motion.

[9] Froom also claims costs although he does not claim to have been successful on this motion. I repeat that the dispute between her and her former spouse, Arthur Froom regarding who is the true owner of the subject condominium was not resolved on this motion. In no relevant sense was Froom successful on this motion.

Complexity

[10] Seligman’s mortgage enforcement action, commenced on April 26, 2019, for possession and payment of $303,279.21 due under a mortgage with interest was granted. Lafontaine delivered a defence that denied all of the Seligman’s main allegations.

[11] On this motion, Seligman delivered a short affidavit and factum. Cross-examinations were held over four days. Lafontaine conducted extensive cross-examinations. 128 delivered a six-volume record, a supplementary record that contained transcripts and satisfaction of undertakings by all parties. Froom delivered several records. The Director of Titles took no position on this motion however, at the Court’s request, provided written submission related to a cautions hearing.

[12] This mortgage enforcement action became anything but straight-forward given Lafontaine’s defence and the involvement of other parties, particularly Froom.

Importance of the Issues

[13] The question of whether a mortgage registered in these circumstances is a “fraudulent instrument” under the Land Titles Act, R.S.O. 1990, c. L.5, and thus void, is novel and one of importance not just to the main parties but also to the public.

Conduct of the Parties

[14] I accept Seligman’s submission that the conduct of the defendants unnecessarily lengthened the proceeding. The voluminous evidentiary record that was submitted to the court was largely unnecessary.

Scale of Indemnification

[15] Seligman’s submissions appear to request full indemnity costs with directly explaining why such an award is appropriate in these circumstances. There were no offers to settle and I do not find that the conduct of the parties, given the novelty of the issue, was so unreasonable as to justify imposing an elevated costs scale.

Hourly rate and Hours claimed

[16] I accept 128’s submission that the disbursement claimed by Seligman are not unreasonable nor is the $500.00 hourly rate for Mr. Butson. I do not accept 128’s submission that the time claimed for the was excessive. The hours claimed reflect the unnecessarily expanded scope of this proceeding.

[17] Taking into account the factors set out in Rule 57.01 and the principles outlined in Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.), I conclude that a fair and reasonable to award costs in the amount of $43,196.60, inclusive of disbursements and taxes.

Division of Costs Award

[18] 128 submits that the amount awarded to Seligman should be divided equally between 128 and Lafontaine without explanation or authority provided. Seligman did not reply to 128’s submission. In my view this is not an appropriate case to hold Lafontaine nor Froom liable for the Seligman’s costs of this proceeding. Given that the mortgage enforcement action was solely against 128, I find that it is just that 128 solely bear the responsibility for paying Seligman’s costs.

[19] For reasons given I order that 128 pay costs of $43,196.60, inclusive of disbursements and applicable taxes, to Seligman within thirty days. Further, I dismiss the misguided claims by Lafontaine and Froom for costs as neither party was successful in this proceeding.

Mr. Justice M. D. Faieta

Released: January 12, 2023