Superior Court of Justice – Barrie
Court File No.: CV-23-518-00
Date of Decision: January 30, 2025
Between:
Marian Massaar
Plaintiff
and
Anthony Moneck and Lauren Moneck
Defendants
Appearances:
- Anisha Bhardwaj, for the Plaintiff
- Megan D’Mello, for the Defendant, Anthony Moneck
- Mervyn White and Andrew White, for the Defendant, Lauren Moneck
Heard: By written submissions
Decision by: S.E. Healey
Decision on Costs
Background
[1] The plaintiff (“Marian”) sued the defendants, her daughter Lauren Moneck (“Lauren”) and son-in-law Anthony Moneck (“Anthony”). The action was based on a tired and oft-repeated script: parent lends money to newlyweds to purchase a new home, couple treat it as a loan during the marriage, couple separate, family court litigation ensues in which one of the spouses alleges that it was a gift all along, parent demands repayment and the recalcitrant spouse forces her to litigate the matter. In this case, that spouse was Anthony, who ultimately failed entirely to produce evidence that the money was provided as a gift.
[2] Marian brought a successful motion for summary judgment, on which this court was able to make a final determination of all of the issues in the action. She was awarded judgment in the full amount of her claim, which was the balance of the unpaid amount of the loan, in the amount of $163,982.50 plus prejudgment interest. She also obtained an order that this amount be paid from the funds held in trust from the sale of Anthony and Lauren’s matrimonial home.
[3] Marian now seeks costs of the action fixed in the amount of $58,885.90, comprised of $50,000 for fees, disbursements in the amount of $2,217.25 and HST of $6,668.65. Her actual costs for the entire action were $107,982.99.
Submissions on Costs
[4] Anthony’s answer to this request is that the hourly rates are exorbitant and the time spent disproportionate to the amount in dispute. He also criticizes Marian for not serving a Rule 49 offer, without any evidence that he took steps to resolve the litigation.
[5] Marian did in fact offer to reduce her claim to $145,000. This was in my view a reasonable attempt at compromise given that the evidence was completely in her favour.
[6] Lauren did not dispute that the money was advanced as a loan. Lauren brought a cross-motion for contribution and indemnity for any amounts that she would be found responsible to pay her mother, which was granted. Lauren seeks her costs of the defence and crossclaim on a full indemnity basis in the amount of $43,109.77, comprised of fees of $37,629 and the remainder disbursements and taxes.
[7] Anthony’s answer to this request is that Lauren should not be entitled to costs, as she took an identical position as her mother, relied on the same facts, arguments and law and so had no necessary role. She also did not serve a Rule 49 Offer and deprived Anthony of the opportunity to settle costs as she failed to serve him with a Bill of Costs. Given Anthony’s primary position that Lauren should receive no costs, there would appear to have been little to gain in incurring further fees attempting to resolve the issue of costs.
Simplified Procedure and Costs Cap
[8] This action was brought under the Simplified Procedure, in which costs are capped at $50,000 and disbursements at $25,000 exclusive of HST, subject to an exception which does not apply here: Rule 76.13. Mr. Kania submitted that this Rule has been interpreted to mean that the cap is to be considered full recovery, citing Ristanovic v. Corma Inc., 2021 ONSC 108, at para. 11. With respect, that case does not stand for that proposition. The Rule does not address the scale of costs and does nothing to limit the discretion that resides in the court by virtue of s. 131 of the Courts of Justice Act and Rule 57.01 other than placing an uppermost limit on costs.
Conduct of the Parties
[9] This action, and the fees incurred, are entirely the result of Anthony’s unreasonable position. It was not an even remotely close call as to whether the money advanced by Marian was a gift or a loan. As stated in my ruling, Anthony maintained his unreasonable positions in the face of documentary evidence that unambiguously supported the existence of a loan, and offered no evidence to support his argument of a gift.
[10] The submissions of Marian offer further insight into his unreasonableness, indicating that much effort went into attempting to arrange for the dispute to be mediated to avoid fees. While undoubtedly there would have been some difficulty co-ordinating the schedules of six individuals plus a mediator, this does not explain why correspondence was ignored repeatedly by Anthony between October 2022 and April 2023, and why, when he did finally respond on May 30, 2023, he advised that he was only available for two dates between then and September 11, 2023. This is not the behavior of someone with a sincere desire to resolve a dispute.
[11] In the meantime, a timetable had been created in the Family Court matter, on consent, that required this matter to be set down for trial by March 30, 2023, with mediation to proceed before that date. It was only after that date had passed that Anthony agreed to complete mediation by June 23, 2023, with the civil claim set down by July 21, 2023. This required Marian’s counsel to bring a motion on consent to extend these timelines. Even with that consent, Anthony delayed until May 30, 2023 to provide any substantive response to retaining a mediator. Given his “unavailability” during the summer of 2023, a further consent order had to be obtained to extend the date for setting down this claim. He also had to be chased to answer his undertakings.
[12] A party who takes unreasonable positions, ignores correspondence and forces unnecessary steps does so at his own peril.
Reasonable Expectations and Bills of Costs
[13] In terms of his reasonable expectation of costs, Anthony’s counsel has not provided his own Bill of Costs. Both this action and the matrimonial litigation has been ongoing for some time, and it can be assumed that Anthony has received invoices from his own counsel that have informed him of the cost of each step taken in a proceeding. Knowing that Lauren and Marian each have separate counsel, he could reasonably expect that any adverse cost order would be significant.
[14] I have reviewed the Bill of Costs of Marian. She engaged a downtown Toronto firm and experienced counsel; costs can be anticipated to be steep, which could not have been a surprise to Anthony. Even on a partial indemnity scale, Marian’s fees exceed the allowable limit under Rule 76.13. On a partial indemnity scale, the rates charged by counsel in a downtown firm are commensurate with their years of experience and in line with the rates charged by counsel of this experience level even outside of Toronto. The law clerks rates are charged at the reasonable rate of $80 per hour. The disbursements are all permitted under Tariff A.
[15] Because of the cap, Marian stands to recover approximately one-half of what she has had to pay in legal fees to recover her money.
Lauren’s Position
[16] As for Lauren, it must be appreciated that Anthony was the first to serve his Statement of Defence and Crossclaim, seeking contribution, indemnity and relief over with respect to any judgment obtained against him by Marian. Lauren merely followed his lead. However, unlike Anthony, she did not allege that if the advance was found to be a loan, she knew nothing about it. She properly admitted that the money had been advanced as a loan.
[17] Lauren had her own stake in the litigation given the claims in the Family Court proceeding. She also had unique evidence to provide about many of the events in issue, which were not within Marian’s knowledge. There is no merit to Anthony’s claim that her participation in this motion was unnecessary.
[18] I have reviewed the Bill of Costs prepared on behalf of Lauren. There is nothing disproportionate about the fees charged or time spent on the matter.
Principles Governing Costs
[19] Costs rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behavior by litigants: Fong v. Chan, para. 22.
[20] Costs on the highest scale being sought by Lauren requires particularly egregious conduct that goes beyond that which would merit an award of substantial indemnity costs: Net Connect Installation Inc. v. Mobile Zone Inc., 2017 ONCA 766, para. 8. Full indemnity costs are to be awarded rarely and with great caution. In cases in which full indemnity costs have been ordered, the “overriding common thread … is the strong sentiment that the matter, or the issue at least, should never have been brought before the court in the first place, leading to a reaction that the innocent party should not have had to pay a penny toward the cost of litigation”: Envoy Relocation Services Inc. v. Canada (Attorney General), 2013 ONSC 2622, para. 116.
[21] In Envoy, the type of considerations that have attracted full indemnity costs are summarized at para. 125, as follows:
- (a) “grave positive misconduct” on the part of the blameworthy party;
- (b) but for the blameworthy party’s misconduct, the matter, or at least a significant component of the litigation, should never have reached the courts;
- (c) the non-offending party did nothing to hinder, delay or confuse the litigation;
- (d) the blameworthy party’s conduct was contemptuous, enforcing the “aggrieved party to exhaust legal proceedings to obtain that which was obviously his”;
- (e) the matter involved a scurrilous attack on the administration of justice or waste of scarce judicial resources.
[22] This is a case that should never have been brought before the courts, and Anthony did indeed require Marian to exhaust legal proceedings to obtain what was hers. Lauren was caught in the crossfire. However, he also made two allegations of fraudulent conduct, one of which he implicitly directed at Lauren when he indicated that his name had been forged on the promissory note. The other was when he suggested that the Gift Letter had been tampered with after he signed it.
[23] These considerations are all the type of behavior that warrant full indemnity costs, and I agree that this is the scale of costs that should apply in this case.
Discretion and Reasonableness
[24] The court has broad discretion in deciding whether to award costs, to whom, and in what amount: s. 131 of the Courts of Justice Act. However, that discretion is to be exercised in accordance with the provisions of an act or the Rules of Civil Procedure: 1465778 Ontario Inc. v. 1122077 Ontario Ltd., para. 25; Andersen v. St. Jude Medical Inc., para. 20; leave to appeal refused, 2006 CarswellOnt 7749 (Ont. C.A.).
[25] Rule 57.01 sets out the factors a court may consider when deciding costs, and the court must adhere to the principle of proportionality set out in r. 1.04(1.1). Despite those factors, the court’s authority under r. 57.01(1) remains discretionary: Ontario v. Rothmans Inc., 2013 ONCA 353, para. 134.
[26] The overarching principle when fixing costs is that the amount of costs awarded be reasonable in the circumstances: Davies v. Clarington (Municipality), 2009 ONCA 722, para. 52.
[27] In determining the appropriate amount of costs to which the plaintiff is entitled, the principles that guide my decision are those articulated in Andersen v. St. Jude Medical Inc., para. 22:
The discretion of the court must be exercised in light of the specific facts and circumstances of the case in relation to the factors set out in Rule 57.01(1): Boucher v. Public Accountants Council for the Province of Ontario; Moon v. Sher; and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC.
A consideration of experience, rates charged and hours spent is appropriate, but is subject to the overriding principle of reasonableness as applied to the factual matrix of the particular case: Boucher. The quantum should reflect an amount the court considers to be fair and reasonable rather than any exact measure of the actual costs to the successful litigant: Zesta Engineering Ltd. v. Cloutier, para. 4.
The reasonable expectation of the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable: Rule 57.01(1)(0.b).
The court should seek to avoid inconsistency with comparable awards in other cases. “Like cases, [if they can be found], should conclude with like substantive results”: Murano v. Bank of Montreal at p. 249.
The court should seek to balance the indemnity principle with the fundamental objective of access to justice: Boucher.
[28] In arriving at this decision on costs, I have fully considered the r. 57.01(1) factors and weighted them accordingly.
[29] In the final analysis, I am to “step back” to consider the appropriateness of the costs order overall. It is unfortunate that so much had to be spent by everyone for Marian and Lauren to obtain their judgments, but in the end, they had little choice in the matter. The costs are fair and reasonable in the circumstances.
Order
[30] This court orders:
Anthony Moneck shall pay costs of this action to Marian Massaar fixed in the amount of $58,885 inclusive.
Anthony Moneck shall pay costs of the action to Lauren Moneck fixed in the amount of $43,000 inclusive.
Released: January 30, 2025
Justice S.E. Healey