COURT FILE NO.: CV-09-00061869-0000
DATE: 2023/08/30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MALGORZATA DANKIEWICZ, Plaintiff
AND:
TODD JOSEPH SULLIVAN, Defendant
BEFORE: Justice I.F. Leach
COUNSEL: John D. Goudy, for the Plaintiff
Jason DiFruscia, for the Defendant[^1]
HEARD: In writing
ENDORSEMENT
(Costs of proceedings before Justice I.F. Leach)
Introduction
[1] This litigation has an extraordinarily long and complicated history, described at length in the following previous judgments and endorsements:
a. Dankiewicz v. Sullivan, 2011 ONSC 3485, released on June 24, 2011;
b. Dankiewicz v. Sullivan, 2019 ONSC 6382, released on November 4, 2019;
c. Dankiewicz v. Sullivan, 2020 ONSC 3979, released on June 26, 2020;
d. Dankiewicz v. Sullivan, 2020 ONSC 7211, released on November 23, 2020;
e. Dankiewicz v. Sullivan, 2021 ONSC 485, released on January 1, 2020;
f. Dankiewicz v. Sullivan, 2022 ONSC 4324, released on July 25, 2022;
g. Dankiewicz v. Sullivan, 2023 ONSC 1783, released on March 17, 2023; and
h. Dankiewicz v. Sullivan, 2023 ONSC 2298, released on April 14, 2023.
[2] I will not repeat that extended history, yet again, in this endorsement. This endorsement should instead be read together with those earlier decisions, in order to obtain a full understanding of the overall context for my current ruling.[^2]
[3] For present purposes, suffice it to say that this endorsement is intended to address the costs which have been accumulating to date in the particular proceedings before me, now that the substantive determinations required by the trial proceedings directed by Justice Rady and assigned to me finally have come to an end.
[4] Notwithstanding my exhortation encouraging a negotiated resolution of those cost issues, (in an effort to avoid the parties devoting yet more time and expense to this matter), the parties were unable to reach any agreement in that regard, as evidenced by their tendering of written cost submissions in accordance with an amended timetable I set in that regard.[^3] In particular, I now have reviewed and considered, at length, the following cost-related material submitted by the parties:
a. written cost submissions tendered by the plaintiff on March 30, 2023, which were accompanied by:
i. copies of two written settlement offers/proposals conveyed on May 11, 2016, and August 3, 2018, respectively; and
ii. a Bill of Costs, attaching detailed accounts rendered to the plaintiff by her previous lawyer and current lawyers, invoices and receipts supporting disbursements incurred by the plaintiff’s lawyers, and invoices relating to the fees which the plaintiff has paid to her engineering experts;[^4]
b. responding written cost submissions tendered by the defendant on April 27, 2023, which did not attach any settlement offers, or any Bill of Costs or other material indicating what costs may have been incurred herein by the defendant;[^5] and
c. reply written cost submissions tendered by the plaintiff on May 4, 2023.
Party Positions
[5] I have reviewed and considered the above cost submissions in detail and at length, and the following overview should not suggest otherwise. In broad terms, however, the parties’ respective positions may be summarized as follows:
a. The plaintiff asks that she be awarded costs of the proceedings before me, payable forthwith, fixed in the all-inclusive amount of $131,214.95; i.e., the sum of $103,251.04 for legal fees and applicable HST, plus $27,963.91 for disbursements and applicable HST.[^6] In that regard:
i. The plaintiff submits that she is presumptively entitled to her costs in that regard, (including the costs associated with the trial proceedings directed in relation to her motion for contempt and the defendant’s motion for directions, her preparations in that regard, the associated pretrial conferences and case conferences, the associated hearings to settle the form of orders, the associated amount determination hearing, and the plaintiff’s motion to strike evidence filed by the defendant), having regard to her success in that regard. The plaintiff also seeks recovery of the additional expense she has incurred in relation to these cost proceedings.
ii. The plaintiff submits that her costs should be awarded on a substantial or full indemnity scale, having regard to the underlying circumstances, including:
1. the overarching inherent nature of these contempt proceedings, which generally have been directed towards the plaintiff’s efforts to enforce this court’s order made by Justice Rady in 2011;
2. the unremitting and obstinate nature of the defendant’s contempt in that regard;
3. intervening conduct of the defendant which has aggravated that contempt, and/or which needlessly has complicated and prolonged this litigation; and
4. the settlement offers/proposals made by the plaintiff to the defendant;
iii. the quantum of fees and disbursements being sought by the plaintiff was said to be reasonable and appropriate, having regard to the various considerations set forth in Rule 57.01(1) of the Rules of Civil Procedure; and
iv. defence suggestions that the defendant’s conduct herein was reasonable having regard to supposed lack of clarity in relation to Justice Rady’s original judgment, that the defendant exhibited a co-operative approach in the wake of that judgment, and/or that any cost award herein should be tempered by considerations relating to the defendant’s professed impecuniosity, were said to be at odds with this court’s rulings and the underlying facts.
b. The defendant acknowledged that, as the successful party “to date” in these proceedings, the plaintiff should be entitled to an award of costs – but only a portion of the costs being sought by the plaintiff. Without specifying in any way what that portion of cost recovery should be, counsel for the defendant submitted that the amount of costs sought by the plaintiff essentially should be discounted for suggested reasons that included the following:
i. Awarding costs on an elevated scale generally, particularly in the period prior to rendering of my “liability phase” judgment in November of 2019, was said to be inappropriate, in that:
1. the underlying judgment rendered by Justice Rady in 2011 was said to be “broad”, “open-ended” and “not abundantly clear”, especially insofar as it ordered “no specific solution” to the parties’ drainage dispute, “left it to the parties to determine the best course of action”, and “invited the parties … to propose solutions and negotiate to find a solution that was agreeable” and satisfied the judgment;
2. having regard to such circumstances, it was said that “the Defendant was entitled to advance his own solutions or those of his engineer”, was not required to accept solutions proposed by the plaintiff, and that the plaintiff incurred costs up until the further judgment rendered in November of 2019 “simply as a result of the nature of the June 2011 judgment”; and
3. it was said that the defendant should be viewed as having acted reasonably, insofar as “there was a genuine dispute between the parties’ respective engineers” concerning the best way to satisfy the 2011 judgment, the defendant nevertheless took “necessary steps towards satisfying [that] judgment”, and any failure to satisfy that judgment was not done “maliciously”.
ii. It was emphasized that the defendant was self-representing for a time, and that “at least part of the delay in purging [his] contempt” was attributable to his corresponding inability “to receive certain documents in a timely manner”, as he does not have access to email and requires documents to be mailed to his residence.
iii. It was submitted that the scale and/or quantum of any cost award against the defendant should be tempered or reduced because the defendant is impecunious, will have no ability to pay costs in the amount sought by the plaintiff once he has purged his contempt and satisfied the underlying 2011 judgment, (i.e., by complying with the further orders made herein), is still facing ongoing proceedings in relation to the plaintiff’s claims for further damages caused by flooding of her property, and that any award of costs in the nature of that sought by the defendant accordingly would impose “significant hardship” on the defendant.
General Principles
[6] Before further consideration and assessment of the cost positions outlined above, I pause to reiterate a number of general principles applicable to such cost determinations.
[7] Pursuant to section 131 of the Courts of Justice Act, R.S.O. 1990, c.C.43, as amended, and subject to the provisions of an Act or rules of court, “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 the costs shall be paid”.
[8] This is supplemented by the provisions of Rule 57.01 of the Rules of Civil Procedure, subsection (1) of which lists a broad range of factors the court may consider when exercising its discretion to award costs pursuant to section 131 of the Courts of Justice Act, supra.
[9] I nevertheless am mindful of Rule 57.01 of the Rules of Civil Procedure in its entirety, which includes the provisions of Rule 57.01(4), emphasizing that nothing therein, nor in the provisions of Rules 57.02 to 57.07 which follow,[^7] affects the authority of the court under section 131 of the Courts of Justice Act, supra:
a. to award or refuse costs in respect of a particular issue or part of a proceeding;
b. to award a percentage of assessed costs or award assessed costs up to or from a particular stage of a proceeding;
c. to award all or part of the costs on a substantial indemnity basis;
d. to award costs in an amount that represents full indemnity; or
e. to award costs to a party acting in person.
[10] Our courts repeatedly have emphasized that cost awards must not be a simple mechanical or mathematical calculation; e.g., focused merely on details of time spent multiplied by hourly rates, or a tabulation of disbursements actually incurred.
[11] Rather, all cost claims are subject to the “overriding principle of reasonableness”, as applied to the factual matrix of the case, pursuant to a required ultimate “cross check” in that regard.[^8]
[12] The overall goal is to award costs in an amount that is “fair and reasonable for the unsuccessful party to pay in a particular proceeding”, rather than a sum tailored to an exact measure of the actual costs of a successful litigant.[^9]
Entitlement
[13] I turn next to the question of cost entitlement.
[14] In that regard, there was no suggestion that anyone but the plaintiff should be entitled to a cost award in relation to the proceedings before me. Moreover, as noted above, the defendant conceded that the plaintiff is entitled to some measure of costs.
[15] For a number of reasons, I independently agree with that view as to cost entitlement in the present circumstances.
[16] First, in my view, the plaintiff was entirely successful throughout the course of the proceedings before me. In that regard:
a. The general rule is that, (subject to the discretion of the trial judge under s.131 of the Courts of Justice Act, supra, having regard to the factors in Rule 57.01 of the Rules of Civil Procedure and related jurisprudence), a successful party is entitled to costs.[^10]
b. While the court’s discretion in relation to costs sometimes may be exercised on the basis that success was divided between the parties, “divided success” does not necessarily mean “equal success”, and “some success” may not be enough to have an impact on the appropriate cost determination. Many cases involve multiple issues, and not all issues are equally important, equally time-consuming or equally expensive to determine.[^11] Moreover, as repeatedly emphasized by our Court of Appeal, while distributive cost awards are still a possibility, they are rarely if ever appropriate.[^12]
c. In relation to the proceedings before me, the plaintiff generally was successful from beginning to end, in relation to almost all facets of the litigation. Without limiting the generality of the foregoing:
i. Despite sustained opposition from the defendant, the plaintiff succeeded – via the “liability phase” of the trial proceedings before me -- in obtaining an order that the defendant was in contempt of Justice Rady’s judgment dated June 24, 2011. In doing so:
1. the plaintiff necessarily established the three stringent prerequisites or essential elements for such a finding, and did so beyond a reasonable doubt; and
2. the plaintiff simultaneously demonstrated that the defendant had not yet complied with Justice Rady’s judgment, thereby effectively defeating all aspects of the defendant’s motion claiming various forms of relief, (e.g., removal of the judgment registered against his property, a final release and/or a “satisfaction piece”), premised on the defendant’s desired finding that the minor and ineffective remedial steps he had taken were sufficient to establish compliance with Justice Rady’s judgment.
ii. The plaintiff successfully countered the defendant’s stubborn and persistent efforts to revisit the substantive merits of Justice Rady’s underlying judgment, (a final judgment from which the defendant had taken no appeal), during almost every phase of the proceedings before me; a matter plaintiff counsel was required to address repeatedly via appropriate objections made during the trial hearings, case management conferences, and a formal and entirely successful motion to strike inappropriate, inadmissible, irrelevant and otherwise improper evidence filed by the defendant in that regard.[^13]
iii. During the “penalty phase” of the trial proceedings before me, the plaintiff successfully countered numerous defence arguments suggesting that the defendant had purged his contempt, and defence requests for a finding and declaration in that regard.[^14]
iv. In doing so, the plaintiff succeeded in demonstrating that the granting of remedial relief was required to address the defendant’s ongoing contempt, and that such relief needed to included the necessary ordering of remedial work to address the ongoing surface water drainage problems inflicted upon the plaintiff by the defendant’s conduct. In that regard:
1. The plaintiff admittedly fell short of securing a court order endorsing the “Alternative Work Option” remedy which formed the plaintiff’s primary request for remedial relief by the time the proceedings before me had advanced to the “penalty phase” of the directed trial.
2. However, as I indicated in my judgment, the plaintiff fell short in that regard not because her “Alternative Work Option” proposal lacked merit. To the contrary, for the reasons I outlined at length, the proposal was eminently practical and sensible, insofar as it not only would have addressed the underlying drainage concerns effectively, but also would have minimized the potential for future conflict between the parties and/or the need for further court proceedings. In the absence of any constraints on the remedial order to be imposed to address and resolve this longstanding surface water drainage dispute between neighbours, (e.g., had I been sitting in the context of a judge hearing arguments ab initio as to whether the defendant’s conduct constituted actionable nuisance vis-à-vis the plaintiff, and about the most appropriate remedy to address any such nuisance), I would have ordered implementation of the plaintiff’s proposed “Alternative Work Option” without hesitation.[^15] For reasons I outlined at considerable length,[^16] I reluctantly rejected ordered implementation of the plaintiff’s “Alternative Work Option” proposal, as an appropriate remedy, only because the context in which I was presiding, (i.e., a contempt hearing focused on ensuring respect for and enforcement of Justice Rady’s original order contemplating flow of surface drainage water from the plaintiff’s property over the defendant’s property), made adoption of the proposal impermissible.
3. In my view, that particular lack of success on the part of the plaintiff neither can nor should be viewed as any kind of success on the part of the defendant. Without limiting the generality of the foregoing:
a. While I agreed with certain submissions of defence counsel in that regard, particularly in relation to the proper interpretation and application of Rule 60.11(9) of the Rules of Civil Procedure, the reasons for my rejection of the plaintiff’s “Alternative Work Proposal” were primarily my own.
b. The defendant did not oppose implementation of the plaintiff’s proposed “Alternative Work Option” as a component of arguing in favour of an alternative remedy or solution. To the contrary, the defendant proposed no alternative remedy or solution whatsoever for the surface water drainage issues being experienced by the plaintiff; a position entirely consistent with his underlying and frequently articulated view that implementation of any further remedial work would be inappropriate and unnecessary, as Justice Rady’s judgment never should have been granted in the first place. To the extent the implementation of any remedial work was ordered, that was entirely consistent with the expressed desire of the plaintiff, ran entirely counter to the fundamental position of the defendant, and inherently represented success for the plaintiff. Moreover:
i. The remedial work I ordered was a slightly modified version of an alternative remedy formulated by the plaintiff’s expert, and put forward by the plaintiff earlier in the proceedings. The plaintiff’s primary request for remedial relief may not have been granted, but in my view that does not detract from the reality that the plaintiff succeeded in obtaining relief she desired in the alternative. She also succeeded in having the monetary payments, ordered as part of that alternative remedial work solution, deemed “restitution orders” pursuant to [s.178(1)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-b-3/latest/rsc-1985-c-b-3.html)(a) of the [Bankruptcy and Insolvency Act](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-b-3/latest/rsc-1985-c-b-3.html), as requested.
ii. In my view, (reflected in the opportunity I effectively provided by directing a temporary stay of my remedial order, so that the defendant might reconsider his position, and perhaps voluntarily agree to implementation of the “Alternative Work Option despite my inability to order it),[^17] the defendant’s opposition to the plaintiff’s primary remedial proposal was largely self-defeating. In particular, his rejection of the Alternative Work Option -- a proposal that would have seen almost all of the remedial work done on the plaintiff’s property, with minimal changes to the defendant’s property -- led directly instead to the making of an order requiring very substantial remedial changes to his property; i.e., disruptive remedial work effectively reversing all of the landscape alterations and shed construction changes the defendant had made to his property over the course of many years, accompanied by a permanent injunction preventing the defendant and any future owner of the property from making any further alterations in that regard. From that perspective, I find it difficult to characterize the plaintiff’s failure to obtain the primary remedial relief she requested as any form of success on the part of the defendant.
4. In the proceedings before me, the plaintiff did not obtain requested “restitution orders” awarding her immediate monetary compensation from the defendant. In my view, however, that too cannot be construed for present purposes as failure on the part of the plaintiff, or success for the defendant. For reasons previously outlined at length,[^18] I made no finding that the plaintiff was not entitled to monetary compensation, but found that such relief had to be pursued at a later date via necessary pleading amendments.[^19]
5. The plaintiff nevertheless did succeed in having a fine imposed on the defendant, as an additional sanction for his ongoing contempt.
v. Finally, the plaintiff was entirely successful in relation to the “Amount Determination Hearing” held on March 7, 2023; i.e., insofar as I accepted and agreed with her position that $66,274.00 was the initial amount to be paid into court by the defendant, in relation to funding of the remedial work I ordered.
d. In such circumstances, where the plaintiff has enjoyed success in relation to almost all aspects of the proceedings before me, and the defendant has enjoyed no appreciable or relevant degree of success, I think costs most definitely should follow the event.
[17] Second, recognition that the plaintiff is entitled to her costs of the proceedings is entirely consistent with and buttressed by the provisions and legislated directions found in Rule 60.11 of the Rules of Civil Procedure, which supplement the general cost-related provisions and principles noted above, and to some extent control exercise of the court’s discretion in relation to the cost of contempt proceedings. In particular, Rules 60.11(9) and 60.11(10) read in part as follows:
60.11 (9) Order that act be done by another person – Where a person fails to comply with an order requiring the doing of an act, other than the payment of money, a judge on motion may, instead of or in addition to making a contempt order, order the act to be done, at the expense of the disobedient person, by the party enforcing the order or any other person appointed by the judge.
(10) The party enforcing the order and any person appointed by the judge are entitled to the costs of the motion under subrule (9)…
[Emphasis added.]
[18] In this case, the plaintiff’s motion, (albeit a motion directed to trial), effectively sought and obtained, in addition to a contempt order, an order that the act required by Justice Rady’s judgment, (i.e., the taking of steps necessary to ensure drainage of the plaintiff’s surface water across the defendant’s property), be done at the expense of the disobedient defendant.
[19] As the party enforcing Justice Rady’s judgment/order by bringing that motion, the plaintiff accordingly is entitled to her costs of the motion, (which in my view includes the costs associated with trial of that motion), pursuant to Rule 60.11(10) of the Rules of Civil Procedure.
Adoption of global approach to cost quantification
[20] Before proceeding further, I note that both parties generally were content to approach quantification of an appropriate cost award to the plaintiff on a “global” basis; i.e., focusing on the total costs the plaintiff should receive instead of making any attempt to make discrete assessment of costs in relation to each notional step of the proceedings before me.
[21] I independently agree with that approach, for reasons that include the following:
a. Although the plaintiff and the defendant brought separate motions, in my view they essentially addressed the same central underlying issues but from different perspectives, with the plaintiff focusing on how the defendant had failed to comply with Justice Rady’s judgment and why the defendant should be found in contempt, (e.g., on the basis Justice Rady’s judgment was sufficiently clear on the fundamental obligation to be performed by the defendant in accordance with the judgment), with the defendant focusing on why he was said to have complied with Justice Rady’s judgment via the remedial steps he had taken, and arguing in the alternative that the judgment did not provide sufficiently clear direction as to what needed to be done. The reciprocal nature of the motions was reflected repeatedly in my endorsements on numerous occasions; e.g., with my express indications that the plaintiff’s establishing the elements of civil contempt beyond a reasonable doubt simultaneously demonstrated that the defendant had not yet complied with Justice Rady’s judgment,[^20] and that my corresponding detailed explanations as to why the defendant’s remedial measures and proposed drainage solution were ineffective, and the essentials and fundamental mechanics of the drainage solution the defendant was required to implement, effectively provided all of the directions ostensibly sought by the defendant’s motion.[^21]
b. Although trial of the plaintiff’s contempt motion was bifurcated into two stages, (i.e., a “liability phase” and a “penalty phase”, as per the general practice in relation to such matters),[^22] and those stages may have involved some discrete issues, there was but one contempt motion brought by the plaintiff – and, once again, that motion effectively was the figurative reciprocal image of the defendant’s motion.
c. It must be remembered that there was but one directed trial proceeding before me; i.e., insofar as Justice Rady directed simultaneous trial of the parties’ respective motions. As with any trial, there were incidental steps, evidentiary objections, and mid-trial motion proceedings. There were also additional hearing dates scheduled to complete the presentation of relevant and required evidence. At the end of the day, however, these nevertheless were all components of one extended and intermittent trial proceeding, and it seems entirely appropriate if not necessary to approach the costs of that trial proceeding on a global basis.
Scale
[22] I turn next to the scale at which such costs should be awarded.
[23] General principles in that regard include the following:
a. Although the court has a broad discretion in relation to costs, confirmed by s.131 of the Courts of Justice Act, supra, as expanded by Rule 57.01 of the Rules of Civil Procedure, it has been emphasized that awarding costs on a partial indemnity basis generally strikes the proper balance as to the burden of costs that should be borne by the “winner”, and that elevated cost awards should be reserved for “rare and most exceptional” cases.[^23]
b. The sort of conduct meriting elevated cost awards has been described in various ways; e.g., conduct that is “reprehensible”, “scandalous”, “outrageous” or “egregious”, or which clearly indicates an abuse of process, justifying enhanced costs as a form of chastisement.[^24]
c. Courts frequently have adopted a practice of awarding substantial indemnity or something approaching complete indemnity costs to a successful party in a civil contempt proceeding, on the sensible basis that contempt of court inherently is “reprehensible” conduct, and a person who obtains an order from the court is entitled to have it obeyed without further expense to himself or herself.[^25] Indeed, a number of authorities have indicated that such an approach generally has been regarded as “the rule, not the exception”.[^26]
d. Having said that, other authority has emphasized that an award of substantial or complete indemnity costs is not automatic in such cases, but in fact requires a more nuanced analysis; e.g., awarding costs at an elevated scale only if the contempt itself or the conduct of the contempt proceeding evinces a deliberate attempt at frustrating the court’s order, and after an examination of what is fair and reasonable in the circumstances, bearing in mind the reality that the court is still mandated to consider all factors set forth in Rule 57.01 of the Rules of Civil Procedure when exercising its discretion regarding costs.[^27] If the contemnor is suitably contrite, has attempted to purge his or her contempt, has taken steps to minimize costs incurred by the other party, and/or the contempt itself is towards the lower end of the “flagrant and wilful” scale, awarding costs on a partial indemnity basis may be appropriate.
e. Even if costs are awarded on a substantial or complete indemnity basis, that does not necessarily mean that the successful party can claim whatever costs may have been charged to him or her by his or her solicitors for work done on the matter.[^28] In particular, a court’s willingness to provide a litigant with “full indemnity” for his or her reasonable litigation expense must not be construed as a “blank cheque” that will necessarily ensure recovery of all fees and disbursements voluntarily incurred in dealing with a particular step in the litigation, regardless of whether the chosen litigation measures were reasonable and proportionate.[^29] In other words, costs awarded on a substantial or complete indemnity basis are still subject to the “overriding principle of reasonableness”, as applied to the factual matrix of the case.[^30]
[24] I already have outlined, in sub-paragraphs 5(a)(ii) and 5(b)(i) of these reasons, the respective positions of the parties in relation to the scale upon which costs of the proceedings before me should be awarded.
[25] In that regard, I agree with the position of the plaintiff and reject the submissions of the defendant.
[26] In my view, the plaintiff should receive her costs throughout on a full indemnity basis, in accordance with the general practice relating to the costs of successful contempt proceedings, and I am not persuaded that the particular circumstances of this case call for any deviation from that general approach, in relation to the costs occurred prior to the endorsement I released on November 4, 2019, or otherwise.
[27] My reasons in that regard include the following:
a. As noted above, contempt of court inherently is “reprehensible” conduct, and a person in the position of Ms Dankiewicz, who obtains a judgment from the court such as that granted by Judgment Rady, should be entitled to have that judgment obeyed without further expense to herself. Again, many of the reported decisions in this area regard that approach to cost awards in contempt proceedings as the rule, rather than the exception.
b. In my view, nothing in the particular circumstances of this case calls for any portion of the costs to be awarded against the contemnor Mr Sullivan to be awarded only on a partial indemnity scale, on an exceptional basis. Without limiting the generality of the foregoing:
i. While Mr Sullivan’s contempt may not have been formally declared until the release of my endorsement on November 4, 2019, my judgment in that regard was simply a formal recognition of the state of affairs that had existed since the granting of Justice Rady’s judgment on June 24, 2011, insofar as Mr Sullivan failed to comply with Justice Rady’s judgment during the intervening period. It cannot be the law that a contemnor should benefit directly or indirectly from the time it takes for those suffering from the consequences of such contempt to bring the matter before the court and obtain judgment in that regard. In this case, Mr Sullivan had an obligation to comply with Justice Rady’s judgment from the moment it was made, and not from the time he was formally declared to be in contempt of court for failing to comply with that judgment.
ii. Nor am I persuaded at all by submissions, made on behalf of Mr Sullivan, that he should receive leniency in relation to the costs associated with his contempt of court because of alleged lack of clarity in the Judgment released by Justice Rady. In my view, such submissions are yet another attempt by Mr Sullivan to revisit arguments already made, and issues already decided against him, earlier in this litigation. As discussed at considerable length in my decision released on November 4, 2019:
1. A finding of civil contempt requires, inter alia, proof beyond a reasonable doubt that the court order alleged to have been breached must state clearly and unequivocally what should and should not be done.[^31]
2. As clarity of the relevant court order forms one of the three essential elements that must exist for a finding of civil contempt, it unsurprisingly was the extended focus of evidence and submissions during the “liability phase” of the trial proceedings before me, and simultaneous consideration of whether the remedial steps taken by Mr Sullivan were sufficient to demonstrate compliance with Justice Rady’s judgment.
3. In the result, I expressly found that the plaintiff had met her onus of establishing, beyond a reasonable doubt, that the relevant provisions of Justice Rady’s judgment provided the degree of clarity required by the first essential element of civil contempt, and provided detailed reasons for that finding.[^32]
4. That issue accordingly already has been decided in these proceedings. In my view, Mr Sullivan should not be permitted to reopen and effectively relitigate that issue now.
iii. I place no weight on the submission that Mr Sullivan was not obliged to accept drainage solutions proposed by the plaintiff and her engineering experts. While that statement is true on its face, as far as it goes, its focus is misplaced. In particular, Mr Sullivan may have had no obligation to comply with the proposals and requests made by Ms Dankiewicz, but he most certainly had a duty to comply with Justice Rady’s judgment; a judgment which required him “to take whatever steps [were] necessary to ensure that the plaintiff’s surface water drains across the defendant’s property”. In that regard:
1. At all material times after Justice Rady released her judgment, Mr Sullivan knew or ought to have known that the surface water of Ms Dankiewicz was not draining across his property. Without limiting the generality of the foregoing:
a. Mr Sullivan’s property self-evidently had been made higher than that of Ms Dankiewicz, and water does not naturally run uphill.
b. Mr Sullivan also clearly knew that the surface water from the property of Ms Dankiewicz was not reaching the drainage pit he had installed, as he took the position all along that it was up to Ms Dankiewicz to perform remedial work on her own property to facilitate collection and drainage of her surface water into that drainage pit, and faulted her for failing to undertake such efforts that supposedly were required to make the drainage pit he installed an effective solution.
c. More generally, Mr Sullivan stubbornly adhered to the position, throughout these proceedings, from beginning to end, that all of the surface water drainage in the area of the parties’ properties naturally flowed from east to west; i.e., from his property onto the property of Ms Dankiewicz, rather than the other way around.
2. Despite knowing that the plaintiff’s surface water was not draining across his property, Mr Sullivan nevertheless knowingly failed to take steps necessary to make that happen, as required by Justice Rady’s judgment. He did not have to accept any of the solutions proposed by the plaintiff or her engineers in that regard, but it was incumbent on him to take some course of action to ensure that required result. He deliberately refrained from doing so.
iv. In my view, this case by no means involves a contemnor who deserves lenience in relation to costs because he has been suitably contrite, has attempted to purge his contempt and/or has taken steps to minimize costs incurred by the other party. Nor, in my view, is it a case in which the relevant contempt is towards the lower end of the “flagrant and wilful” scale. In that regard:
1. As noted in my endorsement released on July 25, 2022, I initially was inclined to think – or at least hope – that Mr Sullivan’s contempt of court, (in contrast to the deliberate acts and failures which constituted that contempt), was unintentional, at least up until the time of the decision I released on November 4, 2019.[^33] Perhaps it was such comments that gave rise, at least in part, to the suggestion in Mr Sullivan’s cost submissions that he be granted leniency, in relation to costs, in the form of such costs being awarded only on a partial indemnity basis up until that date.
2. The totality of Mr Sullivan’s conduct throughout this proceeding nevertheless disabused me of such notions. Without limiting the generality of the foregoing:
a. Throughout the entirety of the proceedings before me, from commencement of trial through to the Amount Determination Hearing, Mr Sullivan has expressed no contrition or remorse whatsoever for his contemptuous conduct, nor any indication whatsoever that he will accept and respect the judgment made by Justice Rady.
b. To the contrary, throughout the proceedings before me, from the first day of trial until the day of the final Amount Determination Hearing, Mr Sullivan obstinately has continued to criticize Justice Rady’s judgment, and has persisted with ill-conceived and unsuccessful attempts to have that judgment, which he never appealed, revisited and reversed during the proceedings before me. His final comments made to me as a self-represented litigant, at the Amount Determination Hearing, openly indicated that he still has no respect for that judgment or the court’s process in that regard, as he still considers the judgment and its underlying factual findings to be wrong.
3. The suggestion that Mr Sullivan should receive cost leniency in relation to his conduct prior to release of my endorsement on November 4, 2019, as he could not and did not realize before then that he had failed to comply with the Judgment made by Justice Rady, does not sit at all well with the fact that he has taken absolutely no steps whatsoever in the 3½ years since then to address the surface water drainage issues or purge his contempt. In my view, the natural inference is that the release of my endorsement had no bearing whatsoever on Mr Sullivan’s decision making. To the contrary, having regard not only to his conduct but his indicated positions and comments, I think it fair and reasonable to infer that Mr Sullivan never had any intention of taking all steps necessary to ensure drainage of the plaintiff’s surface water across his property because he believed, and still believes, that the judgment rendered by Justice Rady is wrong.
4. As indicated in my earlier endorsements, Mr Sullivan has not taken any steps to minimize costs incurred by Ms Dankiewicz. To the contrary:
a. He has taken no steps whatsoever to facilitate the drainage of her surface water onto his property, let alone across his property.
b. He has aggravated the situation originally addressed by Justice Rady, and the plaintiff’s surface water drainage issues, by further landscaping changes, (e.g., filling in the drainage swale running along the border between the parties’ houses, and by adding further topsoil along the boundary between the parties’ backyards), that have raised the elevation of his property vis-à-vis that of the plaintiff even further.
c. He actively has interfered with the plaintiff’s efforts to pump surface water from her backyard to the street by redirecting a hose outlet back onto her property.
d. In stubbornly persisting with inappropriate efforts to revisit the judgment made by Justice Rady, he has advanced and abandoned requests for relief in that regard only to revisit them again directly or indirectly, and repeatedly has tendered -- or tried to tender -- irrelevant, inadmissible and/or otherwise improper evidence, all of which has required the plaintiff and her counsel to incur more time and expense in addressing such matters by way of objections and formal motion proceedings.
e. The defendant and his previous counsel failed to exhibit even minimal co-operation with the plaintiff and her counsel that may have reduced the cost of these proceedings, up to and including repeated failure to respond to reasonable requests for approval of draft orders as to form and content, thereby necessitating formal appointments to settle such orders, at which no opposition to the plaintiff’s draft orders then was expressed.
f. I am not persuaded that Mr Sullivan’s ongoing failure to purge his contempt and correct his uncooperative conduct are attributable in any meaningful or significant way to his lack of email, or the periods of his self-representation. Mr Sullivan has expressed his lack of respect for Justice Rady’s judgment and lack of cooperation while both represented and unrepresented. He also was given substantial time to demonstrate requested cooperation, and to comply voluntarily with the judgment rendered by Justice Rady. He did neither.
5. In my view, Mr Sullivan’s conduct cannot be regarded as being at the lower end of the “flagrant and wilful” scale. His failure to comply with Justice Rady’s judgment now has persisted for more than a dozen years. He has expressed and continues to express open contempt and disregard for the legitimacy of that judgment. He has taken no further steps to comply with that judgment, even in the wake of my decisions. From beginning to end, he stubbornly has adhered to the expressly stated view that the judgment made by Justice Rady is wrong and never should have been granted. By deed and word, he gives no real or credible intention whatsoever of his intention to comply voluntarily with that judgment. In my view, such a determined and defiant contemnor deserves no leniency in relation to costs associated with proceedings taken to declare and address that contempt.
6. In my view, having regard to all of the above, the suggestions made in defence counsel’s cost submissions that Mr Sullivan now intends to purge his contempt and is seeking financing in that regard, (now that he faces the prospect of a substantial adverse cost award), ring hollow. He has had more than enough time to demonstrate a bona fide intention to purge that contempt.
v. Nor am I persuaded in any way by the submission that Mr Sullivan is deserving of cost leniency because of his professed impecuniosity. In that regard, I fully accept that impecuniosity of a party called upon to pay costs can be a relevant consideration in the exercise of the court’s cost discretion. However, in this particular case:
1. Mr Sullivan’s renewed effort to assert and rely upon his alleged impecuniosity is at odds with the evidence received, and factual findings made, in relation to the Amount Determination Hearing. In particular, for the reasons set forth in the endorsement I released on March 7, 2023, I found that, while Mr Sullivan currently may have limited liquid assets, he has steady and not inconsiderable income from ongoing employment, and it is reasonable to assume that he conservatively has at least $400,000 in net equity in his home.
2. I was not presented with any evidence to suggest that Mr Sullivan has pressing or onerous financial obligations for reasons unrelated to his longstanding litigation with Ms Dankiewicz. To the extent Mr Sullivan now faces considerable financial obligations as a result of this litigation, in my view he has only himself to blame. As indicated by the results of the Amount Determination Hearing before me, the relevant surface water drainage issues are capable of being addressed by the implementation of remedial work that will cost an estimated $66,000.00 to complete, in 2023 dollars. Instead of incurring the cost of such remedial work or the cost of meaningful alternative and effective measures, (i.e., to address and resolve those drainage issues, and comply with Justice Rady’s judgment), Mr Sullivan effectively chose to devote time and expense to this litigation while forcing Ms Dankiewicz to do the same. Such choices have consequences.
c. Finally, in my view, it also must be remembered and emphasized that any such cost leniency in relation to Mr Sullivan inevitably would entail the imposition of greater hardship on Ms Dankiewicz. I fail to see how the imposition of such hardship can be justified in any way in the circumstances. Again, Ms Dankiewicz obtained a judgment from this court, and she was entitled to expect that it would be obeyed without the necessity of further expense.
[28] My above views were formed without regard to settlement proposals/offers made by the plaintiff, evidence of which was tendered along with the plaintiff’s written cost submissions. However, regard to those settlement efforts reinforces my view that the plaintiff should receive her costs throughout on a full indemnity basis. In that regard:
a. As early as March, 2015, the plaintiff made a settlement proposal contemplating resolution of the surface water drainage issues through the implementation of work that was largely similar to that ordered in my endorsement released on July 25, 2022. (While no copy of that proposal was supplied with the plaintiff’s written cost submissions, the description of that proposal set forth in those cost submissions also was not challenged, questioned or contradicted in the cost submissions tendered on behalf of Mr Sullivan.)
b. On May 11, 2016, the plaintiff served a formal Offer to Settle, pursuant to which the defendant essentially was given the option of choosing one of the two drainage solutions proposed in a report from the plaintiff’s engineering expert, implementing that chosen solution at his expense to the satisfaction of the plaintiff, and paying additional specified costs incurred to be incurred by the plaintiff, after which the plaintiff would take steps to confirm satisfaction of the judgment made by Justice Rady, withdraw or discharge the various enforcement measures she had put in place, (e.g., a writ of seizure and sale, notice of garnishment and certificate of pending litigation), and sign a mutual full and final release.
c. On August 3, 2018, the plaintiff made a further settlement proposal, (following the holding of a judicial pretrial conference), whereby indicated steps would be taken with a view to determining whether the initial drainage pit solution contemplated and implemented to some extent by Mr Sullivan could be made workable in an adequate way; e.g., by relocation of the drainage pit installed on the plaintiff’s property, creating a connection between that drainage pit and the drainage pit previously installed by Mr Sullivan, creating a berm along the western boundary of Mr Sullivan’s property to redirect his surface water towards his drainage pit, and having Mr Sullivan assume responsibility for ensuring regular operation of a pumping system and discharge line to redirect water from Mr Sullivan’s drainage pit to somewhere other than the plaintiff’s property. The proposal included provisions that effectively would hold Mr Sullivan responsible for any failure of that system and resulting damage to the plaintiff’s property, and which effectively would preserve the ability of the parties to proceed with the litigation if and as necessary, with a sine die adjournment in the meantime.
d. In my view, none of these settlement proposals and offers satisfy the requirements of Rule 49.10 of the Rules of Civil Procedure, so as to trigger the presumptive consequences described therein, and counsel for the plaintiff did not suggest otherwise. That nevertheless does not render the settlement offers irrelevant. To the contrary, in addition to the broad cost discretion conferred on the court by section 131 of the Courts of Justice Act, supra, Rule 49.13 of the Rules of Civil Procedure expressly confirms that, despite a number of identified rules, (including Rules 49.03 and 49.10), the court, in exercising its discretion with respect to costs, “may take into account any offer to settle made in writing, the date the offer was made and the terms of the offer”.
e. In my view, the settlement proposals and offers made by the plaintiff make it clear that, despite her formal position in the litigation, the plaintiff repeatedly engaged in reasonable and bona fide efforts aimed at resolving the dispute without the parties being put to the further time and expense associated with continued litigation.
f. In contrast, I received no indication that the defendant ever made any overt settlement proposals or offers, engaged in any meaningful risk analysis concerning the outcome of this litigation, or exhibited any willingness to compromise his position to any degree for the purpose of resolving the parties’ dispute without further litigation. In such circumstances, I find it difficult to place much if any weight on the suggestion, (advanced in defence counsel’s written cost submissions), that Mr Sullivan should receive cost leniency for efforts made to arrive at a negotiated resolution with Ms Dankiewicz.
g. Again, all of the above reinforces my view that the plaintiff has acted reasonably in seeking to enforce the judgment she obtained, (by incurring time and expense in that regard which should not have been necessary), and that the defendant contemnor has acted unreasonably. In my view, he accordingly is undeserving of any leniency in relation to costs, or departure from the general and sensible practice of awarding substantial indemnity or something approaching complete indemnity costs to a successful party in a civil contempt proceeding.
Quantification
[29] As noted above, a finding that Ms Dankiewicz should receive her costs on a full indemnity basis does not mean that she automatically should receive whatever costs may have been charged to her by her counsel for work done on the matter.
[30] Costs awarded on a full indemnity basis must still be proportional and are still subject to the “overriding principle of reasonableness”, as applied to the factual matrix of the case.
[31] In arriving at a global determination of a quantified cost award that is “fair and reasonable” in relation to the proceedings before me, having regard to all the circumstances, my considerations include but are not limited to those outlined below.
AMOUNT CLAIMED AND RECOVERED – RULE 57.01(1)(a)
[32] Rule 57.01(1)(a) permits the court to consider “the amount claimed and the amount recovered in the proceeding”.
[33] Although the wording of that factor nominally focuses on financial amounts claimed and recovered, the broader underlying consideration is the degree to which a party to a proceeding or step in the proceeding may or may not have been successful.
[34] In this case, the plaintiff was entirely successful, (for the reasons already outlined in detail above), and has secured a result whereby the defendant will be obliged to pay the full cost of remedial work necessary to finally address and resolve the underlying surface water drainage issues.
[35] Moreover, although the monetary amount of the ordered remedial work will be approximately $66,000.00, that sum clearly understates the subjective value Ms Dankiewicz places on the relief obtained.
[36] For more than 16 years now, Ms Dankiewicz has endured, as a result of Mr Sullivan’s conduct, the significant upset, stress, inconvenience and property damage described by Justice Rady and in my earlier endorsements. For more than 12 years now, she has been obliged to do so despite having obtained a judgment which should have brought an end to such difficulties.
[37] I have no doubt that, from the perspective of Ms Dankiewicz, (in my view likely to be shared by any reasonable homeowner placed in her situation), obtaining relief that finally ends the surface water drainage issues caused by Mr Sullivan will have a value far beyond that $66,000.00.
PRINCIPLE OF INDEMNITY – RULE 57.01(1)(0.a)
[38] Rule 57.01(0.a) permits the court to consider, in exercising its cost discretion, “the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer”.
[39] The cost submissions tendered on behalf of Mr Sullivan neither questioned nor took any issue with the indicated lawyer experience and corresponding hourly rates set forth in the plaintiff’s Bill of Costs, suggesting that the indicated hourly rates of those devoting time to the matter were acceptable.
[40] In any event, I independently find that the hourly rates charged by counsel for the plaintiffs were entirely reasonable, having regard to the level of experience of the lawyers involved. If anything, I think the hourly rate Mr Goudy charged Ms Dankiewicz is significantly lower than that which his level of experience and accomplishment might reasonably have warranted.
[41] As for the time devoted to the matter by plaintiff counsel:
a. Although that too was not questioned or challenged in the defendant’s cost submissions, that obviously does not mean the time and associated costs claimed should not be subjected to independent judicial scrutiny.
b. I nevertheless also am mindful of the general admonition, voiced by Justice Nordheimer (as he then was) in Basedo v. University Health Network, [2002] O.J. No. 597 (S.C.J.), but embraced by our Court of Appeal in Boucher v. Public Accountants Council (Ontario), supra, at paragraph 27, that “it is not the role of the court to second-guess the time spent by counsel unless it is manifestly unreasonable in the sense that the total time spent is clearly excessive or the matter has been overly lawyered”.
c. In this case, the Bill of Costs submitted on behalf of the plaintiff voluntarily and commendably omits any claim for a number of legal costs incurred by Ms Dankiewicz in relation to this dispute, including:
i. the cost of various other judgment enforcement measures pursued on the plaintiff’s half;
ii. the costs associated with the work done by the law clerk employed by the plaintiff’s previous lawyer;
iii. the costs incurred during the period between October 25, 2016, and August 22, 2018, (including costs associated with the hearing before Justice Rady on June 29, 2017), as the plaintiff acknowledges that her efforts and the efforts of her counsel and engineering expert during that time were focused on development of the alternative drainage solution I felt unable to order, for the reasons set forth in my endorsement released on July 25, 2022; and
iv. the costs associated with amendment of the plaintiff’s pleading, (in accordance with other directions set forth in my endorsement made on July 25, 2022), to facilitate the plaintiff’s continued pursuit of monetary damages from Mr Sullivan for the property damage his actions are said to have caused.
d. In my view, that voluntarily restraint, (supplemented by a voluntary reduction in relation to the costs claimed in relation to work done by the plaintiff’s previous lawyer), means that the costs claimed by the plaintiff by way of “full indemnity” recovery actually are notably below the legal expense the plaintiff actually has incurred.
e. The plaintiff Ms Dankiewicz did have successive counsel involved in this matter, owing to the retirement of the plaintiff’s previous lawyer, Mr Mackenzie, during the course of this lengthy dispute. However, I see little or no duplication of effort inherent in representation of the plaintiff in this particular case. In particular:
i. As Mr Mackenzie had succeeded in obtaining judgment for the plaintiff, (i.e., the judgment rendered by Justice Rady), that formed the essential “substrata” upon which Mr Goudy then focused to pursue that judgment’s enforcement through these proceedings, after Mr Mackenzie had provided Mr Sullivan with his first timely and written warning that contempt proceedings would follow if there was no voluntary compliance with Justice Rady’s judgment.
ii. Mr Goudy thereafter economically and efficiently pursued the matter on behalf of Ms Dankiewicz at his low hourly rate, without involving other lawyers, students or clerks – or, at least, without the plaintiff advancing a cost claim in relation to any time that may have been spent on the matter by such other individuals.
f. Having reviewed the relevant docket entries with care, I find that the time claimed was all reasonably devoted to this matter, and proportionate to the tasks involved and the importance of the underlying interests at stake.
g. I similarly find the claimed disbursements to be reasonably incurred, reasonable, and proportionate to the underlying issues and interests involved in this matter. Without limiting the generality of the foregoing, in my view the expert evidence provided by the plaintiff’s engineer was essential to the plaintiff’s success and formulation of the remedy achieved by the plaintiff, and yet not excessive based on my experience with the expert fees charged in relation to such matters.
REASONABLE EXPECTATIONS OF UNSUCCESSFUL PARTY – RULE 57.01(1)(0.b)
[42] As noted above, I was supplied with no defence Bill of Costs, nor any other indication of the legal costs incurred in relation to this matter by Mr Sullivan.
[43] In the circumstances, I think it fair to assume that Mr Sullivan incurred legal costs comparable to those incurred by Ms Dankiewicz.
[44] In any event, given the protracted nature of these legal proceedings, the presence of Mr Sullivan during most if not quite of all the proceedings before me, and indications I received during the course of proceedings that Mr Sullivan became self-represented for a time owing to his inability to continue paying his own lawyer, I think it unlikely that the costs claimed by Ms Dankiewicz could have come as any surprise to Mr Sullivan.
COMPLEXITY OF PROCEEDING AND IMPORTANCE OF ISSUES – RULES 57.01(1)(c) AND RULES 57.01(1)(d)
[45] Rules 57.01(1)(c) and 57.01(1)(d) permit the court to consider, in exercising its cost discretion, “the complexity of the proceeding” and “the importance of the issues”.
[46] In my view, this matter inevitably would have involved a moderate level of complexity, primarily because of the engineering issues associated with addressing surface water drainage issues. However, I also think it unnecessarily grew more complex owing to the defendant’s unreasonable obstinance, including his unending efforts to revisit the merits of the judgment rendered by Justice Rady.
[47] As for the importance of the underlying issues, I already have noted my view that the matters addressed by this dispute understandably and reasonably were of great importance to Ms Dankiewicz. They appeared to be no less important to Mr Sullivan.
CONDUCT AND/OR STEPS THAT LENGTHENED PROCEEDING – RULES 57.01(1)(e) AND 57.01(1)(f)
[48] Rule 57.01(1)(e) permits the court to consider, in exercising its cost discretion, “the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding”.
[49] Rule 57.01(1)(f) permits the court to consider whether any step in the proceeding was “improper, vexatious or unnecessary”, or “taken through negligence, mistake or excessive caution”.
[50] In that regard, I am mindful of repeated reminders by our Court of Appeal that, “under our system, defendants are entitled to put the plaintiff to the proof, and there is no obligation to settle”.[^34] With that in mind, Mr Sullivan arguably cannot be faulted, (at least in terms of awarding costs greater than they otherwise would have been), for putting Ms Dankiewicz to the proof of her allegation that he was guilty of civil contempt, and an appropriate remedy in that regard.
[51] However, as already noted, the conduct of Mr Sullivan and his previous counsel in relation to this matter did exhibit inappropriate and uncooperative behaviour, (e.g., incessant and improper attempts to revisit matters that were res judicata, and repeated failure to respond to entirely reasonable requests for approval of draft orders), that unnecessarily lengthened the proceedings.
REFUSAL TO MAKE APPROPRIATE ADMISSIONS – RULE 57.01(1)(g)
[52] At the risk of repetition, in my view Mr Sullivan and his counsel clearly should have acknowledged, from the outset and throughout these proceedings, the finality of Justice Rady’s judgment.
[53] As Mr Sullivan and his counsel voiced no opposition to the form of the plaintiff’s draft orders once all concerned had been put to the time and expense of formal appointments to settle the orders, it was clear to me that the propriety of the draft orders also should have been admitted.
ANY OTHER MATTER RELEVANT TO COSTS – RULE 57.01(1)(i)
[54] I already have addressed the settlement proposals and offers exchanged in this matter, all of which apparently emanated from the plaintiff.
[55] By way of other matters relevant to the cost determination to be made in this case, my attention was drawn to the extraordinary financial burdens Ms Dankiewicz has assumed to finance the cost of pursuing this litigation. In particular, she has done so by extensive borrowing, facilitated by successive remortgaging of her home and a personal line of credit.
[56] While the manner in which civil litigation is financed often forms no part of the court’s cost determinations, I once again note that, in relation to successful contempt proceedings, the usual practice of full cost indemnity is based on a sensible underlying policy that a person who obtains an order from the court is entitled to have it obeyed without further expense to himself or herself.
[57] In my view, the fact that Ms Dankiewicz has been obliged to incur debt to secure compliance with the judgment she obtained reinforces the need to make her whole in that regard through a meaningful cost award that ensures, or comes close to, full indemnity.
Conclusion
[58] Discretionary cost determinations are far from an exact science.
[59] Again, the overall goal is to award costs in an amount that is fair and reasonable in relation to a particular proceeding or step in a proceeding, having examined various factors such as those outlined in Rule 57.01.
[60] Having regard to all the circumstances of this particular case, including the various considerations explored in detail above, and the overriding principle of reasonableness, I think justice will be served if my discretion is exercised so as to award the plaintiff Ms Dankiewicz her costs of the proceedings before me, fixed in the all-inclusive amount of $131,214.95 as requested.
[61] For the sake of completeness, I confirm that no costs are awarded in relation to the defendant Mr Sullivan’s cross-motion.
[62] An order shall go accordingly.
Justice I.F. Leach
Date: August 30, 2023
[^1]: Although the defendant represented himself for a period of time following release of my “penalty phase” judgment on July 25, 2022, (i.e., following his service of a Notice of Intention to Act in Person on August 24, 2022, effectively terminating the defendant’s representation by Mr Dupre), the defendant filed a Notice of Appointment of Lawyer on April 26, 2023, appointing Harrison Pensa LLP and Mr DiFruscia in particular as the defendant’s new counsel of record.
[^2]: Regard should be had, in particular, to Dankiewicz v. Sullivan, 2019 ONSC 6382, the judgment I rendered in relation to the “liability phase” of this directed trial, and to Dankiewicz v. Sullivan, 2022 ONSC 4324, the judgment I rendered in relation to the “penalty phase” of this directed trial.
[^3]: The original court-ordered timetable for the tendering of such written cost submissions was set forth in the endorsement herein released on March 17, 2023, following the “Amount Determination Hearing” held in this matter. However, as indicated in my subsequent endorsement released on April 14, 2023, that timetable then was revised and extended on consent, at the request of the defendant.
[^4]: While I received no separate Book of Authorities containing the authorities referred to and relied upon in the course of the written cost submissions tendered by plaintiff counsel, those submissions did contain hyperlinks to those authorities.
[^5]: While I also received no Book of Authorities containing the authorities referred to and relied upon in the course of the responding written cost submissions tendered by defence counsel, those submissions similarly contained hyperlinks to those authorities.
[^6]: In her initial written cost submissions submitted on March 30, 2023, the plaintiff sought total costs of $129,087.27, payable forthwith; i.e., legal fees and applicable HST in the amount of $101,124.94 plus disbursements and applicable HST in the amount of $27,962.33. In her written reply cost submissions, those amounts were increased so as to include the additional costs the plaintiff had incurred since then, including the further expense incurred in relation to these cost proceedings.
[^7]: Those provisions address such matters as directions to an assessment officer, the cost of motions, costs on settlement, costs where actions have been brought in the wrong court, the costs incurred by a Litigation Guardian, and the personal liability of lawyers for costs, most of which, (apart from the provisions in Rule 57.03 dealing with the cost of motions), have no relevance to the cost determination I must make herein. The provisions of Rule 57.03 have relevance only insofar as they require a court to fix the costs of a contested motion and order them to be paid within 30 days, or refer the costs of the motion to assessment in exceptional cases, “unless the court is satisfied that a different order would be more just”. In this case, I made such a “different order” a number of times in the course of this litigation; e.g., in relation to the plaintiff’s motion to strike evidence, addressed by my endorsement released on January 20, 2020, insofar as I thought it more just to have those costs reserved to be addressed as part of the cost submissions to be received at the end of the ongoing trial proceedings before me. Similar directions were made in relation to the cost of appointments to settle the form of orders, (with the term “order” defined so as to include judgments pursuant to the definitions set forth in Rule 1.03 of the Rules of Civil Procedure), which the plaintiff was obliged to pursue pursuant to Rule 59.04(7) owing to the failure of the defendant and/or his previous lawyer to approve the form of draft orders provided by plaintiff counsel.
[^8]: See, for example, Boucher, Moon and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 2005 CanLII 1042 (ON CA), 75 O.R. (3d) 638 (C.A.), and Anderson v. St Jude Medical Inc. (2006), 2006 CanLII 85158 (ON SCDC), 264 D.L.R. (4th) 557 (Ont.Div.Ct.).
[^9]: See Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (C.A.), at paragraph 26, and Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), [2002] O.J. no. 4495 (C.A.), at paragraph 4.
[^10]: See Elbakhiet v. Palmer, 2012 ONSC 2529, [2012] O.J. No. 2890 (S.C.J.), at paragraph 30.1, in turn citing Norton v. Kerrigan, [2004] O.T.C. 559 (S.C.J.), at paragraphs 15-16, Joncas v. Spruce Falls Power & Paper Co., [2001] O.J. No. 1939 (C.A.), and Foulis v. Robinson (1978), 1978 CanLII 1307 (ON CA), 21 O.R. (2d) 769 (C.A.), at p.776.
[^11]: See Scipione v. Del Sordo, 2015 ONSC 5982, [2015] O.J. No. 5130 (S.C.J.), at paragraph 68.
[^12]: See Oakville Storage & Forwarders Ltd. v. Canadian National Railway Co. (1991), 5 O.R. (3d), leave to appeal to the Supreme Court of Canada refused (1992), 6 O.R. (3d) xiii (note); and Skye v. Matthews (1996), 1996 CanLII 1187 (ON CA), 47 C.P.C. (3d) 222 (C.A.).
[^13]: My findings and ruling in that regard are set forth in detail in the endorsement I released herein on January 20, 2021.
[^14]: See paragraphs 14-16 of my decision released on July 25, 2022.
[^15]: See paragraphs 33-34 of my decision released on July 25, 2022.
[^16]: See paragraphs 35-36 of my decision released on July 25, 2022.
[^17]: See paragraph 40 of the decision I released on July 25, 2023.
[^18]: See paragraph 46 of the decision I released on July 25, 2022.
[^19]: See paragraph 46 of the decision I released on July 25, 2022.
[^20]: See my decision released on November 4, 2019, at paragraph 25.
[^21]: See my decision released on July25, 2022, at paragraph 14(c)(ii).
[^22]: Again, see authorities such as College of Optometrists (Ontario) v. SHS Optical Ltd., 2008 ONCA 685, [2008] O.J. No. 3933 (C.A.), at paragraphs 72-75; and Carey v. Laitken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paragraph 18.
[^23]: See, for example, Foulis v. Robinson (1987), 21 O.R. (2d) 179 (C.A.), and Isaacs v. MHG International Ltd., (1984), 1984 CanLII 1862 (ON CA), 45 O.R. (2d) 693 (C.A.).
[^24]: See Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3; Mortimer v. Cameron (1994), 1994 CanLII 10998 (ON CA), 17 O.R. (3d) 1 (C.A.); McBride Metal Fabricating Corp. v. H&W Sales Co. (2002), 2002 CanLII 41899 (ON CA), 59 O.R. (3d) 97 (C.A.); and Davies v. Clarington, 2009 ONCA 722, [2009] O.J. No. 4236 (C.A.).
[^25]: See, for example: 1307347 Ontario Inc. v. 1243058 Ontario Inc., [2001] O.J. No. 585 (S.C.J.), at paragraph 5; Astley v. Verdun, 2013 ONSC 6734, [2013] O.J. No. 4942 (S.C.J.), at paragraph 52; College of Chiropractors of Ontario v. Dies, [2015] O.J. No. 2249 (S.C.J.), at paragraph 21, varied but otherwise upheld, with an award of substantial indemnity costs, [2016] O.J. No. 22, at paragraph 14; Langford (City) v. dos Reis, [2016] B.C.J. No. 2418 (C.A.), at paragraph 28; and Business Development Bank of Canada v. Cavalon Inc., [2017] O.J. No. 4367 (C.A.), at paragraph 104.
[^26]: See West Lincoln (Township) v. Chan, supra, at paragraph 43.
[^27]: See, for example: Einstoss v. Starkman, 2003 CanLII 2304 (ON SC), [2003] O.J. No. 96 (S.C.J.), at paragraph 14; and Astley v. Verdun, supra, at paragraphs 55-57.
[^28]: See, for example: Worsley v. Lichong, [1994] O.J. No. 614 (Gen.Div.), at paragraph 5; Murano v Bank of Montreal (1998), 1998 CanLII 5633 (ON CA), 41 O.R. (3d) 222 (C.A.), at p.248; and 1307347 Ontario Inc. v. 243058 Ontario Inc., supra, at paragraph 5.
[^29]: See Aker Biomarine AS v. KGK Synergize Inc., [2014] O.J. No. 968, at paragraphs 30-31.
[^30]: Again, see Boucher, Moon and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, supra, and Anderson v. St Jude Medical Inc. (2006), 2006 CanLII 85158 (ON SCDC), 264 D.L.R. (4th) 557 (Ont.Div.Ct.). Having regard to such considerations, parties who bring a contempt motion, and succeed in establishing contempt at the “liability phase”, would do well to avoid the temptation of litigating remaining aspects of the motion without reasonable restraint, expecting complete cost indemnity. As emphasized by our Court of Appeal, one competing goal of our system of costs is to use the prospect of an adverse cost award, or unrecovered costs, as a “reality check” to discourage frivolous, unreasonable or unnecessary litigation. See, for example, Boucher v. Public Accountants Council (Ontario), supra, at paragraph 37, and Guelph (City) v. Wellington-Dufferin-Guelph Health Unit, 2011 ONSC 7523 (S.C.J.), at paragraph 14.
[^31]: See the decision I released on November 4, 2019, at paragraph 11(c)(i).
[^32]: See paragraph 15 of the decision I released on November 4, 2019.
[^33]: See my decision released on July 25, 2022, at sub-paragraph 24(a)(iii).
[^34]: See Foulis v. Robinson, supra, at p.776, and Davies v. Clarington, supra, at paragraph 44.