Court File and Parties

Court File No.: CV-13-00116820 Date: 2025-10-01 Ontario Superior Court of Justice

Between:

VITTORIA FERA, Plaintiff / Responding Party

– and –

ARISTA HOMES LIMITED, ARISTA HOMES (WOODBRIDGE) INC., ARISTA HOMES (WOODBRIDGE I) Inc., ARISTA HOMES (WOODBRIDGE II) Inc., and JOSE P. RAMOS, Defendants / Moving Party

Counsel:

• Sunira Chaudhri and Tiana Perricone, for the Plaintiff / Responding Party
• Dan Rosman, for the Defendant / Moving Party, Jose P. Ramos

Heard: In Writing

Before: Justice S. J. Woodley

Decision Re Costs and Removal/Retention of a Writ

Overview

[1] By Endorsement dated December 23, 2024, the (default) Judgment of the Honourable Justice de Sa dated September 21, 2021, awarding damages to the Plaintiff, Vittoria Fera ("Fera"), for sexual assault and battery totalling approximately $500,000 as against the Defendant, Jose Ramos ("Ramos"), was set aside with costs of the motion payable to Ramos, and costs thrown away payable to Fera.

[2] Following release of the Endorsement, Ramos sought $11,439 in partial indemnity costs and removal of a writ of seizure and sale filed relating to Justice de Sa's Judgment. Fera sought $92,248.91 for costs thrown away and sought to maintain the writ.

[3] On July 8, 2025, a case management conference was held to discuss the parties' positions at which time the parties agreed to re-file their costs submissions, and to include submissions relating to the removal of the writ.

[4] On July 11, 2025, Ramos filed his updated costs submissions, objected to the amount of Fera's costs (understood to be $92,248.91), and included a request that the writ obtained relating to Justice de Sa's Judgment be removed.

[5] In turn, Fera filed her updated costs submissions, reduced the request for costs thrown away to $23,372.29, objected to the amount of Ramos's costs, and included a request that the writ remain filed.

Facts

[6] The relevant facts are contained in the Endorsements dated December 23, 2024, and July 8, 2025, and in summary are as follows:

a. Fera is a former employee of the Defendant, Arista Homes ("Arista"), who was terminated by Arista on September 27, 2012.

b. Ramos is a former employee of Arista and was Fera's direct supervisor on the date of her termination.

c. In November 2012, Fera commenced an application before the Human Rights Tribunal of Ontario (HRTO) against Arista and Ramos alleging discrimination with respect to employment based on sex and sexual solicitation. Fera alleged that Ramos engaged in unwelcome sexual communication and physically touched her on September 13, 2012.

d. Ramos retained legal counsel for the entirety of the HRTO proceeding.

e. On December 16, 2012, Ramos was criminally charged with sexual assault with a weapon relating to Fera's allegations.

f. Ramos retained legal counsel for the entirety of the criminal proceeding.

g. In or around June 2013, the criminal charges against Ramos were withdrawn by the Crown.

h. On November 14, 2013, Fera commenced a civil action against Ramos and Arista in the Superior Court (this action) alleging, inter alia, wrongful dismissal, sexual harassment, and sexual battery.

i. On August 29, 2014, the HRTO proceeding was dismissed due to the commencement of the civil proceeding.

j. On October 3, 2016, service of Fera's Statement of Claim was validated.

k. On January 12, 2017, Ramos's (former) lawyer served and filed his Statement of Defence.

l. On March 13, 2018, Ramos's lawyer served a Notice of Intent to Act in Person noting Ramos's address as 68 Finlay Avenue, King City, and his email address as frizzo3307@hotmail.com.

m. Numerous notices of examination and motion records were served upon Ramos following March 13, 2018. Ramos alleged he was advised the lawsuit was stagnant, had no access to the email address provided by his former lawyer, had moved away from the Finlay Avenue address in November 2018, and had not received the bulk of documents alleged to have been served upon him following March 13, 2018.

n. On April 25, 2019, Ramos was noted in default and on May 27, 2021 an ex parte motion for Judgment was heard by Justice de Sa who granted Judgment in favour of Fera in Reasons for Judgment dated September 21, 2021.

o. On December 23, 2023, Ramos was served (at his current address) with a Notice of Change of Lawyers and a copy of Justice de Sa's Judgment dated September 21, 2021.

p. Immediately following service, Ramos retained a lawyer who moved expeditiously to set aside Justice de Sa's Judgment.

q. Ramos's motion to set aside Justice de Sa's default Judgment was granted by Endorsement dated December 23, 2024 and set forth the following:

i. The Order of Master Sugunasiri (now Associate Justice Sugunasiri) dated March 6, 2019, striking Ramos's Statement of Defence was set aside;

ii. The Registrar's noting of default as against Ramos dated April 25, 2019, was set aside;

iii. The Judgment of the Honourable Justice de Sa dated September 21, 2021, was set aside;

iv. The within action was revived and reinstated;

v. The parties were to agree upon a litigation timetable, failing which, they were to appear before the court;

vi. Ramos was ordered to pay Fera's costs thrown away as may be agreed and, failing agreement, as ordered by the court; and

vii. Subject to any offer that may affect costs, Fera was ordered to pay Ramos's costs relating to the motion.

The Law and Analysis

Entitlement to Costs

[7] Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that, subject to the provisions of an Act or the rules of court, the costs of and incidental to a proceeding or 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] The general principle is that a successful party is entitled to costs. It is accepted that this general principle should not be departed from unless there is good cause to do so.

[9] The general principles that apply in fixing costs are set out in r. 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[10] Pursuant to r. 57, in exercising discretion under s. 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle made in writing:

a. 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;

b. the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

c. the amount claimed and the amount recovered in the proceeding;

d. the apportionment of liability;

e. the complexity of the proceeding;

f. the importance of the issues;

g. the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding;

h. whether any step in the proceeding was:

i. improper, vexatious or unnecessary, or

ii. taken through negligence, mistake or excessive caution;

i. a party's denial of or refusal to admit anything that should have been admitted;

j. whether it is appropriate to award any costs or more than one set of costs where a party:

i. commenced separate proceedings for claims that should have been made in one proceeding, or

ii. in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer;

k. whether a party unreasonably objected to proceeding by telephone conference or video conference under rule 1.08; and

l. any other matter relevant to the question of costs.

[11] The fixing of costs is not a mechanical or mathematical exercise and should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs to the successful litigant: see Clarington (Municipality) v. Blue Circle Canada Inc., 2009 ONCA 722, 100 O.R. (3d) 66; Zesta Engineering Ltd. v. Cloutier, 21 C.C.E.L. (3d) 161.

[12] The overriding consideration is that the amount fixed for costs should be fair and reasonable in all the circumstances and is an amount that the losing party could reasonably have expected to pay if unsuccessful: see Boucher v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291.

[13] I am required to fix costs in all but exceptional cases. This is not an exceptional case, and I will fix the costs.

[14] Regarding the order that Fera be paid her "costs thrown away", r. 19.08(2) allows a judge to set aside a judgment "on such terms as are just", which includes an award for costs thrown away.

Costs of the Motion

[15] Fera made three offers to settle Ramos's motion to set aside the default Judgment. These offers were dated February 14, 2024, April 4, 2024, and November 13, 2024. Ramos did not accept any offer, nor did he make an offer to settle the motion.

[16] As none of Fera's offers triggered the cost consequences contemplated by r. 49, and as Ramos made no offer, Ramos, as the successful party, is entitled to his costs of the motion on a partial indemnity basis.

[17] Ramos seeks costs of $11,439 including HST and disbursements, fixed on a partial indemnity basis. In support of his request, Ramos provided a bill of costs and submitted that the motion was complicated. He submitted that Fera failed to abide by an agreed upon timetable, and filed an "extensive" responding record that required Ramos to file supplemental materials and a revised factum which resulted in increased costs.

[18] Fera objects to the amount of costs sought by Ramos on the basis that the amount sought is excessive considering that the motion was not complicated and it was her, not Ramos, who undertook the costs of adducing evidence on the motion.

[19] Having heard and considered the motion, I find that the motion was both complex and complicated. The motion addressed issues of prejudice and fairness in the context of a civil proceeding for damages for sexual assault and battery. The within civil proceeding had been preceded by two ancillary proceedings being a human rights application before the HRTO and a criminal proceeding. Both prior proceedings required explanation. Further, there were initially multiple defendants involved in the HRTO and civil proceedings – all of whom had been released by the date of the motion, excepting Ramos, which again required explanation.

[20] The motion materials filed were extensive and the motion took approximately one half-day to argue.

[21] Although Ramos's materials were not initially lengthy, Fera's responding motion record contained three affidavits and extensive exhibits which required the filing of further reply materials and a revised factum.

[22] Although Ramos's costs were directly increased due to the extensive materials filed by Fera, I find that much of Fera's materials were warranted in the circumstances, given the complex and complicated history of the matter.

[23] Despite any submissions made by either party, in my view, neither party unduly increased the costs incurred. Instead, the nature of the motion required the level of detail provided by Fera and correspondingly required Ramos's considered response.

[24] When considering what the losing party may have expected to pay, I note that Fera's costs of the motion were $41,132.26 (complete indemnity), while Ramos's comparable costs were $16,917.50 (complete indemnity).

[25] While Fera's costs are reflective of the (extra) time and effort spent by Fera's counsel to put the full record before the Court, Ramos's costs are neither unexpected nor are they unwarranted.

[26] Having viewed the various factors including time spent, complexity, and results achieved, I accept Ramos's submissions regarding costs and fix Ramos's costs for the motion at $11,429, inclusive of HST and disbursements, payable to Ramos by Fera relating to the costs of the motion.

Costs Thrown Away

[27] Costs thrown away are limited to those costs that are wasted and will have to be redone: see St. Joseph's Hospital v. Thunder Bay (City), 2025 ONSC 2124.

[28] Fera initially sought "costs thrown away" fixed at $92,248.91 but revised and reduced this amount to seek "costs thrown away" fixed at $23,372.29.

[29] The amount of fees related to Fera's claim for "costs thrown away" is quite limited. The bulk of Fera's claim relates to the costs of disbursements, including work done by prior counsel.

[30] Fera provided a Bill of Costs and written submissions supporting her claim. By her Bill of Costs, Fera seeks $6,100 plus HST on account of fees and $16,479.29 on account of disbursements (including an amount for work done by prior counsel).

[31] Having reviewed the amounts claimed for fees, I find that the amount claimed on account of Fera's fees "thrown away" totaling $6,100 plus HST valued at $793, as being reasonably and properly incurred.

[32] With respect to the claimed disbursements, I find as follows:

a. the disbursements incurred relating to examinations for discovery totaling $980.80, were properly incurred and refundable by Ramos;

b. the disbursements incurred relating to the filing of motions to February 15, 2019, totaling $146.90, were properly incurred and refundable by Ramos;

c. the disbursements incurred between February 15, 2019 and March 6, 2019, relate to matters that were "most likely" not received by Ramos (see the December 23, 2024 Endorsement) and, as such, Fera bears some responsibility for repeatedly serving Ramos at addresses that elicited no response (especially considering that Ramos had filed a defence and had responded to the two prior ancillary proceedings). In the circumstances, I apportion the costs of these disbursements between Ramos and Fera as 85/15 with Ramos bearing 85% of the disbursements totaling $421.31 for a recoverable amount by Fera totaling $358.11;

d. the disbursements incurred following March 6, 2019, were not properly incurred as the evidence established that the Order striking Ramos's Statement of Defence was never properly served (see December 23, 2024 Endorsement), nor was he provided notice of any proceeding thereafter until Fera's (new i.e., current) lawyers served him with a Notice of Change and Justice de Sa's Judgment on December 23, 2023. In the circumstances, I award no reimbursement relating to any disbursements incurred following March 6, 2019, nor do I award any fees relating to the Motions to Obtain Default Judgment or disbursements relating to the Enforcement of the Default Judgment ($1,152.88), as these were either never served or not properly served.

[33] In reviewing Fera's Bill of Costs, I note that the claim for legal fees records an entry for "previously retained firm for motions and to obtain default judgment" totaling $13,105.63. While I have disallowed all fees relating to the Motions to Obtain Default Judgment, it is unclear whether the requested costs of $13,105.63 relate to motions other than default. Certainly, there are no costs payable with respect to the motions heard by Associate Justice Brott on October 4, 2018 and Associate Justice Sugunasiri on March 6, 2019, as both ordered that no costs be awarded for these motions. Additionally, most of the items listed contain no description of services and do not represent "costs thrown away."

[34] However, having considered the outcome of Ramos's motion, the "extra" costs incurred by Fera's (current) counsel to ensure the matter was properly before the court, and the overall fairness to the parties in this proceeding, I find it appropriate to award an additional amount to Fera with respect to fees, despite the lack of particularization, so that Fera's costs may offset Ramos's costs. Therefore, despite lack of any particularization or specific details, I award Fera an additional $3,060.19, inclusive of HST and disbursements, on account of unparticularized fees in order to ensure that the costs between the parties are offset.

Removal/Retention of the Writ

[35] Rule 19.08 provides that a court may set aside default judgment on such terms as are just, which in some cases can include maintaining any writs filed against a defendant: see Merchant Advance Capital Ltd. v. 2200816 Ontario Inc. et al., 2019 ONSC 2477; 1317621 Ontario Inc. v. Krauss; The Toronto Dominion Bank v. Picard, 2020 ONSC 1289, 59 C.P.C. (8th) 137.

[36] It is generally discouraged to permit writs of seizure to be maintained following the setting aside of a default judgment because the setting aside turns the seizure into execution before judgment: see 1317621 Ontario Inc. and Toronto Dominion.

[37] Some of the factors that a court may consider in allowing writs to stand include evidence indicating that there is a risk that the defendant will dispose of his or her assets before judgment to the detriment of the plaintiff creditor and/or the apparent merits of a proposed defence to the plaintiff's claims. Ultimately, however, the court has a broad discretion to order terms that the court considers just in all the circumstances: see 1317621 Ontario Inc. and Toronto Dominion.

[38] In Toronto Dominion, Justice Charney determined that it was in the interest of justice to maintain a writ, despite the setting aside of a default judgment. The facts of Toronto Dominion were, however, starkly different than the case at bar. In Toronto Dominion, the plaintiff brought a claim for an unpaid liquidated credit card debt and Justice Charney determined that the evidence confirmed that the credit cards were in the defendant's name and the agreement required the defendant to pay the balance owing. Based on these facts, Justice Charney found that the merits of the defence were "so weak" that the "overall integrity of the administration of justice" required that the security be preserved pending the outcome of the case on the merits: see Toronto Dominion, at para. 30.

[39] The reasoning in Toronto Dominion cannot be applied to the present case. In the case at bar, allegations of sexual assault and battery were made against the defendant following termination from employment in September 2012. Although criminal charges were brought by the Crown, these charges were subsequently withdrawn prior to trial. Further, although a HRTO application was commenced, this application was barred due to the commencement of the civil proceedings, and there has been no determination of the issues on the merits.

[40] With respect to the within civil proceeding, akin to the HRTO and criminal proceedings, there has been no adjudication on the merits and the defendant has steadfastly denied the allegations. Following commencement of the civil claim in 2013, the defendant retained a lawyer, filed his Statement of Defence, and denied the events that form the basis of the claim/allegations. The defendant remained represented by a lawyer for approximately six years following the date of the initial 2012 complaint. In March 2018, the defendant was advised by his lawyer that the claim was "stagnant" as no steps had been taken by the plaintiff since October 3, 2016. While the defendant was obliged to update his address for service as noted on his Notice of Intent, the defendant's clear intent was to defend the allegations if pursued.

[41] Despite the plaintiff's submissions, the fact that the plaintiff was awarded damages by the Criminal Injuries Compensation Board does not equate to proof in this civil proceeding. Further, the fact that the plaintiff has produced extensive medical records detailing a diagnosis of "stress disorder secondary to a sexual assault" does not, as suggested by the plaintiff, cause the court to "lean towards judgment in her favour". The medical records are based primarily upon the plaintiff's subjective complaints, one-sided reporting, and untested allegations. The medical records, in isolation, without any questioning or cross-examination of the medical providers, do not constitute proof that the tortious conduct occurred. The defendant has steadfastly denied the allegations and there exists a defence on the merits.

[42] As for the allegation that the defendant will dissipate his assets, there is no evidence before the Court that would allow the Court to conclude that the defendant will dissipate his assets, not pay any costs as ordered, or will be noncompliant with the next steps in this litigation. I reject the submission that the defendant's previous noncompliance with the Rules causes serious concern that the defendant will dissipate his assets.

[43] In all the circumstances, I am of the view that it is in the interests of justice that the writ be removed in accordance with the general rule, as otherwise it would constitute execution prior to judgment and prior to adjudication of the claim on the merits.

Conclusion

[44] For the foregoing reasons I order as follows:

a. Ramos's costs for the motion and Fera's costs thrown away are both fixed at $11,439, inclusive of HST and disbursements, and offset each other.

b. The writ of seizure and sale filed by Fera with respect to the (default) Judgment of Justice de Sa dated September 21, 2021, totalling approximately $520,000 shall be withdrawn and/or vacated by Fera within 30 days of the date herein.

c. In the event the parties require a further case conference they may contact the judicial assistant, Hannah Sewpersaud, at Hannah.Sewpersaud@ontario.ca to arrange same.

Justice S. J. Woodley

Released: October 1, 2025