Court File and Parties

Court File No.: CV-22-00000076-0000 (Kingston) Date: 2023Oct25 Superior Court of Justice - Ontario

Re: Kimberly Gillespie, Plaintiff And: George Fraser, Diana Tilbert and Tina Capone Hall, Defendants

Before: Lacelle J.

Counsel: Emilie Aloe, for the Plaintiff Derek L. Chou, for the Defendant/Moving Party, Diana Tilbert

Heard: Costs submissions in writing received August 21 and August 22, 2023

Costs Endorsement

[1] The defendant, Ms. Tilburt, brought a motion to set aside the default judgment of Justice Somji dated January 20, 2023. The motion was denied on July 10, 2023.

[2] The parties have been unable to resolve the issue of costs and have each filed written submissions on costs.

Position of the Parties

The Defendant (the moving party on the motion)

[3] The defendant submits that if costs are to be payable, they should be limited to partial indemnity given that the defendant was a victim of professional negligence. The defendant submits that she would not have ended up in the position of having to litigate these issues were it not for her former counsel’s incompetent and negligent representation. The defendant submits that:

a. A costs award should reflect what the court views as fair and reasonable and the importance of the principle of “reasonableness” (citing Burr v. Tecumseh Products of Canada Limited, 2023 ONCA 135);

b. A successful party is not entitled to costs (citing Bell Canada v. Olympia & York Developments Ltd, [1994] O.J. No. 343);

c. The result of a proceeding is not the exclusive consideration for the court when exercising its discretion to order costs (citing Przyk v. Hamilton Retirement Group Ltd. (The Court at Rushdale), 2021 ONCA 267);

d. Costs should not be awarded in an amount over what the defendant could reasonably expect to pay in relation to this motion. The defendant submits that if the court determines costs should be awarded to the plaintiff, the defendant could reasonably expect to pay costs at the partial indemnity rate of $1,808.63.

The Plaintiff (the responding party on the motion)

[4] The plaintiff seeks costs on a substantial indemnity scale in the amount of $3,564.61 inclusive of HST and disbursements. She argues that this is fair and reasonable in the circumstances.

[5] While she acknowledges that costs are not automatically ordered to the benefit of the successful litigant, in support of her claim for substantial indemnity costs, the plaintiff emphasizes the following factors:

[6] There are no special circumstances in this case which would support a no costs order;

[7] The defendant has provided no authority in support of the position that a no costs order or reduced costs order should be made. In the matter of 2289878 Ontario v. Gourmet Gringos, 2016 ONSC 6204, the plaintiffs were ordered to pay substantial costs as a result of their lawyer’s improper conduct, specifically the noting in default of the defendants and subsequent failure to consent to having the noting in default set aside which resulted in considerable costs to the defendants;

[8] The defendant’s conduct has unnecessarily extended these proceedings and resulted in the plaintiff incurring significant costs.

Analysis

[9] In considering the issue of costs, I am guided by the factors set out in Rule 57.01(1) of the Rules of Civil Procedure.

[10] There is no dispute that the plaintiff was the successful party on the motion.

[11] The plaintiff has filed a costs outline. The defendant takes no issue with respect to the amount of time being claimed or the amounts being claimed. I find the time spent and fees charged by counsel to be reasonable for a motion of this complexity.

[12] I find it is appropriate that the defendant pay costs to the plaintiff. The plaintiff has incurred costs to defend against the motion and has been successful on the motion. I agree with the plaintiff that this is a case where costs should be awarded. While I accept that that the defendant did not initially receive competent representation in the case, as I explained in my reasons on the motion, this does not end the inquiry. The defendant could have acted earlier based on what she knew of the circumstances and her counsel’s conduct. It is not fair or reasonable that in these circumstances, the plaintiff should be made to shoulder the burden of all her own costs in defending this motion.

[13] As for the amount of costs payable, the plaintiff claims substantial indemnity costs. Elevated costs, that being costs on a substantial indemnity or full indemnity scale, are rarely awarded. Elevated costs awards generally arise in cases involving malicious conduct where a party’s actions warrant “rebuke from the court”: Davies v. Clarington (Municipality), 2009 ONCA 722 at paras 45-46.

[14] While my reasons for denying the defendant’s motion were based in part on my finding that there was no plausible or reasonable explanation for the delay in moving to set aside the default judgment, this does not mean the defendant’s conduct in bringing the motion was also unreasonable. There was a legitimate issue to be argued, particularly given the ineffective assistance of her previous counsel. I find that there is no evidence of malicious or unreasonable conduct from the defendant that rises to the level that it warrants rebuke from the court in this case. The parties are entitled to advance their position, regardless of whether at the end of the day the judge hearing the motion or trial disagrees with it. I reject the plaintiff’s claim for substantial indemnity costs.

[15] The defendant submits that if it was reasonable for her to expect to pay costs, it was at the partial indemnity rate. I agree. I find it is fair and reasonable that the defendant shall pay to the plaintiff $2,853.50 in costs, inclusive. This amount is based on the Bill of Costs submitted by the Plaintiff which sets out $4,275.67 in costs paid by the plaintiff. The amount sought by the defendant ($1,808.63) is not reflective of the figures in the evidence before me.

Conclusion

[16] The defendant shall pay the plaintiff costs of $2,853.50 inclusive of HST and disbursements.

Lacelle J. Date: October 25, 2023