Posted On: 12/08/2015 11:01:24 AM
Post# of 43065
Interesting reading.........
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Sandra Eisley and John Bordynuik Inc.
Plaintiffs
- and -
Mildred Orescanin, Trustee for IP Trust and Shirley Bordynuik, Trustee for Corp 1683091 and Shirley Bordynuik, Trustee for John Bordynuik Inc. and John Popovacki and Brian Seburn and Frank Coy and John Bordynuik and John Doe and Others
Defendants
ENDORSEMENT ON COSTS
Maddalena J.
Released: October 27 , 2015
- 2 -
[4] The defendants Bordynuik and Orescanin seek costs against the plaintiff Elsley personally, on a substantial indemnity basis, fixed in the amount of $87,821.79 inclusive of disbursements and HST.
[5] The plaintiff Eisley requests that there be no order as to costs.
[6] Rule 57 of the Rules of Civil Procedure sets forth the factors to be considered by the court in exercising its discretion under s.131 of the Courts of Justice Act.
[7] Further, Rule 20.06 also deals with costs sanctions on a summary judgment motion.
[8] Bordynuik and Orescanin were both successful on their respective summary judgment motions and are therefore entitled to costs against the plaintiff personally .
[9] The plaintiff Elsley made serious allegations of improper and fraudulent conduct against the defendants Orescanin and Bordynuik.
[1O] Ultimately, the court found that these allegations were unfounded.
[11] Further, the court found the plaintiff Eisley inappropriately took steps to declare herself to be the sole, controlling, or majority shareholder of JBI-Delaware. She did so without seeking the assistance of the court in the first instance.
[12] Also , she did not, conveniently, submit all documents that were available to her in relation to this claim, once her claim was challenged by Bordynuik. It was left to Bordynuik to disclose further documents which ultimately successfully challenged her claim.
[13] I adopt the reasoning of the Court in Hamilton v. Open Window Bakery Ltd.,
[2004] 1 S.C.R. 303.
[14] At para. 26 of the decision , the Court concludes as follows:
In Young v. Young, [1993] 4 S.C.R. 3, at p. 134, Mclachlin J. (as she then was) for a majority of this Court held that solicitor-and-client costs "are generally awarded only where there has been [page 313] reprehensible, scandalous or outrageous conduct on the part of one of the parties". An unsuccessful attempt to prove fraud or dishonesty on a balance of probabilities does not lead inexorably to the conclusion that the unsuccessful party should be held liable for solicitor-and-client costs, since not all such attempts will be correctly considered to amount to "reprehensible, scandalous or outrageous conduct". However, allegations of fraud and dishonesty are serious and potentially very damaging to those accused of deception. When, as here, a party makes such allegations unsuccessfully at trial and with access to information sufficient
- 3 -
to conclude that the other party was merely negligent and neither dishonest nor fraudulent (as Wilkins J. found), costs on a solicitor-and client scale are appropriate: see, generally , M.M. Orkin, The Law of Costs (2nd ed. (loose-leaf)) , at para. 219. -
[15] Further, I find in this case, as set out by the defendants in their costs submissions, Elsley was specifically advised in her cross-examination held February 9, 2015 (Questions 75 - 77) of the costs consequences of an unproven fraudulent claim. Eisley acknowledged that if the court did not accept her allegations of fraud and misrepresentat ion by the defendants , she would be ordered to pay substantial indemnity costs.
[16] Under all of these circumstances , it is appropriate to order costs against Elsley personally. These costs are to be paid on a substantial indemnity basis. Accordingly , the costs payable by Eisley personally to the defendants on a substantial indemnity basis are fixed in the amount of $87,000 .00 inclusiv of disbrs ments and HST, payable within 30 days.
Released: October 27, 2015
CITATION: Elsley v. Orescanin, 2015 ONSC 6661
COURT FILE NO.: 8970/14
DATE: 2015/10/27
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Sandra Elsley and John Bordynuik Inc.
- and -
Plaintiffs
)
)
) Frederick Simon Hawa, for the Plaintiffs
)
)
)
)
)
)
)
)
Mildred Orescanin, Trustee for IP Trust and Shirley Bordynuik, Trustee for Corp 1683091 and Shirley Bordynuik, Trustee for John Bordynuik Inc. and John Popovacki and Brian Seburn and Frank Coy and John Bordynuik and John Doe and Others
Defendants
The Honourable Justice T. Maddalena
) Mark Abradjian and Renata Kis, for the
) Defendants
)
)
)
)
)
)
)
)
)
ENDORSEMENT ON COSTS
[1] I heard this summary judgment motion at Welland, Ontario on February 24, February 27, and May 15, 2015.
[2] I delivered written reasons on August 11, 2015.
[3) I have now received written costs submissions from both parties which I have
·reviewed.
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Sandra Eisley and John Bordynuik Inc.
Plaintiffs
- and -
Mildred Orescanin, Trustee for IP Trust and Shirley Bordynuik, Trustee for Corp 1683091 and Shirley Bordynuik, Trustee for John Bordynuik Inc. and John Popovacki and Brian Seburn and Frank Coy and John Bordynuik and John Doe and Others
Defendants
ENDORSEMENT ON COSTS
Maddalena J.
Released: October 27 , 2015
- 2 -
[4] The defendants Bordynuik and Orescanin seek costs against the plaintiff Elsley personally, on a substantial indemnity basis, fixed in the amount of $87,821.79 inclusive of disbursements and HST.
[5] The plaintiff Eisley requests that there be no order as to costs.
[6] Rule 57 of the Rules of Civil Procedure sets forth the factors to be considered by the court in exercising its discretion under s.131 of the Courts of Justice Act.
[7] Further, Rule 20.06 also deals with costs sanctions on a summary judgment motion.
[8] Bordynuik and Orescanin were both successful on their respective summary judgment motions and are therefore entitled to costs against the plaintiff personally .
[9] The plaintiff Elsley made serious allegations of improper and fraudulent conduct against the defendants Orescanin and Bordynuik.
[1O] Ultimately, the court found that these allegations were unfounded.
[11] Further, the court found the plaintiff Eisley inappropriately took steps to declare herself to be the sole, controlling, or majority shareholder of JBI-Delaware. She did so without seeking the assistance of the court in the first instance.
[12] Also , she did not, conveniently, submit all documents that were available to her in relation to this claim, once her claim was challenged by Bordynuik. It was left to Bordynuik to disclose further documents which ultimately successfully challenged her claim.
[13] I adopt the reasoning of the Court in Hamilton v. Open Window Bakery Ltd.,
[2004] 1 S.C.R. 303.
[14] At para. 26 of the decision , the Court concludes as follows:
In Young v. Young, [1993] 4 S.C.R. 3, at p. 134, Mclachlin J. (as she then was) for a majority of this Court held that solicitor-and-client costs "are generally awarded only where there has been [page 313] reprehensible, scandalous or outrageous conduct on the part of one of the parties". An unsuccessful attempt to prove fraud or dishonesty on a balance of probabilities does not lead inexorably to the conclusion that the unsuccessful party should be held liable for solicitor-and-client costs, since not all such attempts will be correctly considered to amount to "reprehensible, scandalous or outrageous conduct". However, allegations of fraud and dishonesty are serious and potentially very damaging to those accused of deception. When, as here, a party makes such allegations unsuccessfully at trial and with access to information sufficient
- 3 -
to conclude that the other party was merely negligent and neither dishonest nor fraudulent (as Wilkins J. found), costs on a solicitor-and client scale are appropriate: see, generally , M.M. Orkin, The Law of Costs (2nd ed. (loose-leaf)) , at para. 219. -
[15] Further, I find in this case, as set out by the defendants in their costs submissions, Elsley was specifically advised in her cross-examination held February 9, 2015 (Questions 75 - 77) of the costs consequences of an unproven fraudulent claim. Eisley acknowledged that if the court did not accept her allegations of fraud and misrepresentat ion by the defendants , she would be ordered to pay substantial indemnity costs.
[16] Under all of these circumstances , it is appropriate to order costs against Elsley personally. These costs are to be paid on a substantial indemnity basis. Accordingly , the costs payable by Eisley personally to the defendants on a substantial indemnity basis are fixed in the amount of $87,000 .00 inclusiv of disbrs ments and HST, payable within 30 days.
Released: October 27, 2015
CITATION: Elsley v. Orescanin, 2015 ONSC 6661
COURT FILE NO.: 8970/14
DATE: 2015/10/27
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Sandra Elsley and John Bordynuik Inc.
- and -
Plaintiffs
)
)
) Frederick Simon Hawa, for the Plaintiffs
)
)
)
)
)
)
)
)
Mildred Orescanin, Trustee for IP Trust and Shirley Bordynuik, Trustee for Corp 1683091 and Shirley Bordynuik, Trustee for John Bordynuik Inc. and John Popovacki and Brian Seburn and Frank Coy and John Bordynuik and John Doe and Others
Defendants
The Honourable Justice T. Maddalena
) Mark Abradjian and Renata Kis, for the
) Defendants
)
)
)
)
)
)
)
)
)
ENDORSEMENT ON COSTS
[1] I heard this summary judgment motion at Welland, Ontario on February 24, February 27, and May 15, 2015.
[2] I delivered written reasons on August 11, 2015.
[3) I have now received written costs submissions from both parties which I have
·reviewed.
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