Ontario Superior Court of Justice
Court File No.: CV-19-00000030-0000
Date: 2025-07-18
Between:
Frank Tyler McFadden, Plaintiff
and
The Corporation of the City of Timmins, Defendant
Self-Represented, for the Plaintiff
Brian Chung, for the Defendant
Heard: In writing
Decision on Costs
K.E. Cullin
Overview
[1] On June 4, 2025, reasons for decision were released granting a motion for summary judgment brought by the defendant. Those reasons invited the parties to make written submissions regarding costs within 30 days. Both parties have now filed submissions.
The Law
[2] The court’s ability to award costs is conferred upon it pursuant to s.131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Although awarding costs is discretionary, in civil actions the court is guided in its exercise of discretion by the Rules of Civil Procedure.
[3] With respect to motions, pursuant to r. 57.03, the successful party is entitled to an award of costs, absent circumstances that would support a finding that another order would be more just. When the motion at issue is a motion for summary judgment, the court must also have regard to r. 20.06 which provides that the court may award substantial indemnity costs if a party acted unreasonably by making or responding to the motion, or a party acted in bad faith for the purpose of delay.
[4] Offers to settle exchanged between parties during a proceeding are also a relevant consideration. Pursuant to r. 49.10, subject to certain conditions, a party who obtains a judgment as or more favourable than their offer to settle is entitled to partial indemnity costs up to the date of the offer and substantial indemnity costs from the date of the offer.
[5] As a general rule, costs are awarded having regard to the principle of indemnity; that is, they are payable to the successful party by the unsuccessful party. Other factors to be considered by the court include: (i) the amount claimed and recovered in the proceeding; (ii) the complexity of the proceeding; (iii) the importance of the issues; (iv) the conduct of the parties; and, (v) whether any step was improper, vexatious, or unnecessary.
[6] An award of costs must reflect an amount that is fair and reasonable having regard to the individual circumstances of a case: Boucher v. Public Accountants Council (Ontario). Costs are intended to indemnify a successful party for the expense of being compelled to seek the assistance of the court to resolve a dispute: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, paras. 19-21.
Positions of the Parties
[7] The defendant submits that it should be awarded its substantial indemnity costs for this action, both because it was successful on the motion and because it made efforts to resolve the action prior to bringing the motion. Those efforts included an offer to settle the action on the basis of a dismissal without costs, which was served on June 25, 2020, not long after the proceeding was initiated.
[8] The defendant has submitted a bill of costs, supporting claims for substantial indemnity costs in the amount of $95,137.11 and partial indemnity costs in the amount of $63,873.86. Both amounts are inclusive of HST and assessable disbursements.
[9] The plaintiff submits no costs should be awarded against him for the motion or the action, and that he should be awarded costs in the amount of $1,500 for the disclosure motion that preceded the summary judgment motion. He argues that the litigation was public interest litigation, concerned with the proper administration of municipal tax sales.
[10] In the event that the court is inclined to award costs, the plaintiff submits that any award of costs should be proportionate, restrained, and reflective of his status as an “unrepresented citizen litigant.” He submits that he should be permitted to make oral submissions regarding the defendant’s claimed disbursements and potential issues of duplication in its claimed fees.
Discussion
[11] As a preliminary issue, I find that it is not necessary to invite oral submissions from the parties. The defendant has provided a detailed bill of costs in support of its claimed fees. The disbursements claimed are reasonable and appropriate for the litigation that has been conducted. Neither raise any questions for me that require oral submissions from the parties.
[12] In my view, there is no issue about the defendant’s entitlement to costs. The defendant was wholly successful on the motion, and the plaintiff’s action was dismissed. Rather, the only issue is whether costs should be awarded on a partial indemnity or substantial indemnity scale.
[13] It is clear from the record before me that the defendant attempted to resolve this action immediately after it was initiated, and it continued to invite a resolution prior to proceeding with its motion for summary judgment. It was prepared to dismiss the action without costs.
[14] The plaintiff argues that an offer to dismiss the claim without costs was no offer at all. He submits that the offer was made prematurely before he had an opportunity to fully assess the merits of his claim. He argues that the disclosure he ultimately received supported his position that there had been procedural non-compliance in the defendant’s conduct of the sale.
[15] The defendant argues that the plaintiff was well aware of the risk of proceeding with his claim. This was not the first time that the plaintiff attempted to challenge the conduct of a municipal tax sale. In McFadden v. The Corporation of the City of Sudbury et al. (Sudbury Court File No. CV-19-00000030-0000), the plaintiff also sought damages for alleged procedural deficiencies in a tax sale. That claim was dismissed following a motion for summary judgment, and the plaintiff was ordered to pay costs to the defendant City in the amount of $80,485.90. The defendant argues that this precedent should be considered in assessing the plaintiff’s reasonable expectations regarding both his claim and the potential costs consequences of an adverse finding.
[16] The plaintiff raises a fair point that, if the plaintiff’s conduct and the claim amounted to an abuse of process, the procedure in r. 2.1.01 could have been initiated. He argues that the fact that it was not supports a finding that he did not undertake any steps that were improper, vexatious, or unnecessary. Respectfully, I disagree.
[17] The procedure in r. 2.1.01 is not, “a short form of summary judgment”. The focal point of r. 2.1.01 is the pleadings. The facts as pleaded in the Statement of Claim are assumed to be true unless they are, “patently ridiculous or incapable of proof”. The fact that the defendant may have a strong defence does not necessarily support a summary dismissal: Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, para. 11; Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801, para. 9; Gao v. Ontario WSIB, 2014 ONSC 6100, para. 9; Husain v. Craig et al., 2015 ONSC 1754, para. 10; McIlvenna v. 1887401 Ontario Ltd., 2015 ONCA 830, para. 18; Hunt v. Carey Canada Inc., [1990] 2 SCR 959 at p. 980.
[18] In other words, it was not a foregone conclusion that initiating the Rule 2.1.01 procedure would have resulted in the dismissal of this action. In my view, the fact that the defendant elected not to avail itself of r. 2.1.01 does not preclude a finding, for the purpose of determining the issue of costs, that the plaintiff conducted unnecessary litigation. The defendant should not be faulted for exercising caution in its litigation strategy.
[19] On the other hand, the fact that the plaintiff had previously engaged in nearly identical litigation against another municipality which was summarily dismissed, and the subject of a significant costs award should have given him pause about the wisdom of undertaking this proceeding. It did not. I cannot ignore that when I consider his position as an “unrepresented citizen litigant” in this matter.
[20] The parties also made submissions regarding the costs of the disclosure motion which was the subject of my endorsement of May 16, 2024. That motion required two appearances, including an appearance before Justice MacDonald on April 18, 2024, to order preliminary disclosure and timetable the motions. Although much of the disclosure requested was refused, the defendant was ordered to provide several of the items sought, as well as to respond to particulars and provide an affidavit of documents. Costs of the disclosure motion were reserved.
[21] In my view, any costs award to the defendant should reflect the fact that the plaintiff enjoyed some success on the disclosure motion. The defendant elected to proceed with a motion for summary judgment, and the plaintiff was entitled to seek the necessary disclosure to put his best foot forward. While the defendant may have disagreed that the disclosure was necessary, it was not wholly successful in advancing that position. It made no apparent effort to resolve the issue of disclosure in advance of the motion.
[22] Having considered the arguments of both parties, I find that there is no reason to depart from the costs consequences set out in r. 20.06 and r. 49.10. The plaintiff rejected the defendant’s offer to settle, served at the outset of this litigation and well in advance of the motion, that would have given him the opportunity to exit without costs. He did so fully aware that he was embarking upon risky litigation with significant exposure to costs. He was also fully aware from the Sudbury action that the summary judgment motion was likely to succeed, and he elected to defend it anyway, which is the hallmark of unreasonableness. All these circumstances attract an award of substantial indemnity costs throughout, and they will be so ordered.
[23] With respect to the quantum of costs, I have reviewed the defendant’s Bill of Costs and find that overall, the costs claimed are reasonable having regard to the nature of the action and the motion, the disclosure requested by the plaintiff, and the fact that cross-examinations were conducted. With that said, I am not going to award the costs requested at items 3, 4, 5, 8, 9, 10 of the defendant’s Bill of Costs, and I am only going to award half of the substantial indemnity costs requested at item 6 – these items pertain to the disclosure motion. I am awarding half of the costs requested at item 6 because some of those costs pertain to fulfilling the plaintiff’s disclosure requests.
[24] As noted, I find that the disbursements claimed by the defendant are reasonable and appropriate.
Costs Award
[25] In summary, costs will be awarded to the defendant as follows:
Total Substantial Indemnity Costs Awarded
- Total Fees: $70,097.03
- Taxes on Fees: $9,112.62
- Total Disbursements including Taxes: $1,421.92
TOTAL: $80,631.57
Disposition
[26] For the reasons given, I hereby order as follows:
The plaintiff, Frank McFadden, shall pay substantial indemnity costs to the defendant, The Corporation of the City of Timmins, fixed in the amount of $80,631.57. These costs shall be payable forthwith.
The defendant, The Corporation of the City of Timmins, may have this order and the order arising from my reasons for decision dated June 4, 2025, issued and entered without having a draft order approved as to form and content by the plaintiff, which requirement is hereby dispensed with.
K.E. Cullin
Released: July 18, 2025