Court File and Parties

COURT FILE NO.: CV-24-00000516-0000 DATE: 2024 09 24

SUPERIOR COURT OF JUSTICE – ONTARIO 7755 Hurontario Street, Brampton ON L6W 4T6

RE: TOMICKI, RENATA, plaintiff AND: RYVOLA, MARK ESTATE OF MARGARET RYVOLA, DECEASED, defendants

BEFORE: Justice L. B. Stewart

COUNSEL: SHARMA, GAURIKA, for the plaintiff Gaurika@kpalwayers.ca No one appeared, for the defendants

COSTS ENDORSEMENT FROM SEPTEMBER 10, 2024 MOTION

[1] The plaintiff moved for default judgment against the defendant Ryvola and ancillary orders.

[2] In summary (refer to motion endorsement for full reasons), the plaintiff, Ms. Tomicki, loaned Mr. Ryvola $130,000 in November, 2019. The parties signed a secured promissory note. Mr. Ryvola breached the note in that he did not repay the debt, nor did he provide a registered charge on the Amherstview property.

[3] Although Mr. Ryvola was properly served with the motion and reminded (in various ways) of the court date on the day of the motion, he elected not to respond.

[4] The plaintiff was entirely successful on her motion and the court granted default judgment in the amount of $180,033.97, an order to hold the sale proceeds from Amherstview in trust and an order requiring Mr. Ryvola to answer reasonable inquiries regarding the estate and the house sale.

Costs Submissions

[5] I found that the plaintiff is entitled to costs against Mr. Ryvola, but not entitled to costs against the estate. The parties were given deadlines for costs submissions.

[6] The plaintiff made her costs submissions in accordance with the deadline ordered.

[7] Mr. Ryvola did not provide costs submissions.

Costs Position of Plaintiff

[8] The plaintiff seeks substantial indemnity costs in the amount of $17,152.29 and disbursements of $1435.09.

Costs Generally

[9] Costs awards as between litigants have a number of purposes, including to a) indemnify (partly) successful litigants, b) encourage settlement, c) correct behaviour of the parties, and d) discourage frivolous or ill-founded litigation (see 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, at para. 10).

[10] Generally, costs should follow the event. They should be proportional to the issues in the action and the outcome, and be reasonable for the losing part to pay, all circumstances considered (see Boucher v. Public Accountants Council for the Province of Ontario, (2004), 71 O.R. (3d) 291 (C.A.) and Moon v. Sher et al., [2004] OJ No 4651 (C.A.)).

[11] When fixing costs, the task is more than a mere calculation using the hours docketed. It is also necessary to step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable. The court will consider the amount that is reasonable for the unsuccessful party to pay.

[12] Costs, generally, should be proportional to the issues in the action and amount awarded. Proportionality, however, should not override other considerations, and determining proportionality should not be a purely retrospective inquiry based on the award. It should not be used to undercompensate a litigant for costs legitimately incurred (Aacurate v. Tarasco, 2015 ONSC 5980 (S.C.J.) at paras. 13 to 17).

[13] That said, proportionality should not be routinely invoked to save litigants from the actual costs of proceedings in circumstances where those litigants have put forth a wholly unmeritorious defence to a legitimate claim or have caused the proceeding to become unduly prolonged or complicated. Tarasco, above.

[14] In fixing costs, Rule 57.01 of the Rules of Civil Procedure provides that the court may consider the following factors (in addition to the result and any offers):

a. principle of indemnity, including experience of successful counsel and their rates; b. amount of costs that an unsuccessful party could reasonably expect to pay for the step in the proceeding; b. amount claimed and amount recovered; c. apportionment of liability; d. complexity of proceeding; e. importance of issues; f. conduct of any party that shortened or unnecessarily lengthened the proceeding; (emphasis added) g. whether any step was improper, vexatious or unnecessary OR taken through negligence, mistake or excessive caution; h. a party’s denial or refusal to admit something that should have been admitted; i. whether there was a multiplicity of proceedings; j. h.1. whether a party unreasonably objected to proceeding virtually; k. any other matter

[15] Elevated costs are warranted in only two circumstances: as a result of the operation of offers and where there is sanction-worthy behaviour by the losing party: Davies v. Claringdon, 2009 ONCA 722 at 29 to 31.

[16] A distinction must be made between hard-fought litigation that turns out to have been misguided and malicious counter-productive conduct. Davies, para 45.

Costs Analysis

[17] I find that substantial indemnity costs are appropriate in this case. The plaintiff was wholly successful on her motion. That, in an of itself, does not entitle her to substantial indemnity costs. However, I find that the conduct of Mr. Ryvola warrants an award of substantial indemnity costs.

[18] Simply put, Mr. Ryvola’s conduct unnecessarily lengthened these proceedings. He forced Ms. Tomicki to bring this motion, despite sending a text in the hours prior to the motion, acknowledging the debt, asking her not to proceed with the motion and offering to enter into another agreement to secure the amounts owed to Ms. Tomicki. Given that the debt had been outstanding for almost three years, Ms. Tomicki had every right to seek the orders she did.

[19] The court often considers the conduct of a party in the context of someone taking a hardline, but ultimately unmeritorious and time wasting position. In my view, it is equally applicable to a party who elects to absent himself from a legal proceeding and force a party into needless litigation. That party also causes the waste of money for the successful litigant and a waste of time for the litigant and the court.

[20] The hourly rates charged by counsel are reasonable, as are the hours spent. The plaintiff’s counsel used an articling student, which decreases the hourly rate charged, but the practical reality is that an articling student is learning and therefore less efficient. I therefore reduce the legal fees to $16,000, inclusive of HST.

[21] The disbursements are reasonable with the exception of the file opening fee which is an overhead cost, not a recoverable disbursement. Further, in my view, HST would not be applicable any of these disbursements. Disbursements are therefore set at $1069.99.

Costs Award

[22] I find that the costs of this motion, inclusive of all fees, taxes and disbursements are $17,069.99.

Orders

[23] I therefore make the following orders:

a. Mr. Ryvola is ordered to pay costs in the amount of $17,069.99 by January 16, 2025. b. Post judgment interest runs at 6%, starting on January 17, 2025. c. The plaintiff will serve this endorsement on Mr. Ryvola. d. The plaintiff will serve this endorsement on Mr. Fochesato.

______________­­­­ Stewart J. Released: December 16, 2024