) ) ELEANOR BAINES Plaintiff/Responding Party – v. –, 2013 ONSC 6050

CITATION: Baines v. Hehar, 2013 ONSC 6050 DIVISIONAL COURT FILE NO.: 93/13 DATE: 20130926 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: ) ) ELEANOR BAINES Plaintiff/Responding Party – and – NAVDEEP S. HEHAR and MANMOHAN S.HEHAR Defendants/Moving Parties ) ) ) ) ) ) ) ) )) Self-represented.Jeffery Booth, for the Defendants/MovingParties ) ) ) HEARD at Toronto: September 17, 2013 H. Sachs J. [1] The Defendants seek leave to appeal the costs order of Moore J. dated February 11, 3013 (the “Order”).

The Order wasmade after a 12 day jury trial where as a result of the statutory deductible and the outcome of a threshold motion, the Plaintiff recoveredno damages. Moore J. made the Order of no costs, relying on the Plaintiff’s impecuniosity. [2] On this motion, the Defendants allege that the trial judge erred in exercising his discretion as to costs for a number ofreasons, including: (

a) they were given no opportunity to make submissions on the question of the Plaintiff’s alleged impecuniosity; (

b) impecuniosity on its own cannot form a ground for an order as to no costs where there has been no recovery; and (

c) the learned trial judge failed to deal appropriately with their Rule 49 offers. [3] Costs orders are highly discretionary orders. Thus, leave to appeal such orders should be granted sparingly and only in caseswhere there are strong grounds to believe that the judge making the order exercised his or her discretion based upon a wrong principle(Bellissimo Excavating Ltd. v. Ding (2004), (ON SCDC), 193 O.A.C. 145 (Div. Ct.)) [4] I have some difficulty with the Defendants’ assertion that they had no opportunity to make submissions with respect to thePlaintiff’s impecuniosity.

First, the issue was raised in her costs submissions to Moore J., albeit in the context of the inability to payanything but a small monthly amount if costs were awarded.

Second, Moore J. outlined the trial evidence that supported his finding as tothe Plaintiff’s impecuniosity, including the fact that she lives in subsidized housing and has no income other than disability pensions. [5] With respect to the other submissions of the Defendants, I am not satisfied that this is one of those cases where there arestrong grounds to believe that the trial judge made an error in principle when he exercised his discretion in the way that he did. [6] The Defendants put evidence before me suggesting that the decision has had the effect of encouraging the Plaintiff to go andengage in further unmeritorious litigation.

In exercising his discretion, it is clear that Moore J. felt that the Plaintiff’s action was notentirely lacking in merit. The result may well have been different if that had not been the case. Thus, the decision should not be regardedas one that encourages the Plaintiff or any litigant to engage in unmeritorious litigation. [7] For these reasons the motion for leave to appeal is dismissed. The Plaintiff requested her costs fixed in the amount of$300.00. The Defendants did not take issue with this amount.

I am therefore ordering that the Defendants pay to the Plaintiff her costsfixed in the amount of $300.00, which costs are to be offset against the amount of $4000.00 that the Plaintiff owes to the Defendants byway of costs from another proceeding. H. Sachs J.

Released: September 26, 2013 CITATION : Baines v. Hehar, 2013 ONSC 6050 DIVISIONAL COURT FILE NO.: 93/13 DATE: 20130926 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT H. Sachs J. BETWEEN: ELEANOR BAINES Plaintiff/Responding Party – and – NAVDEEP S. HEHAR and MANMOHAN S. HEHAR Defendants/Moving Parties REASONS FOR JUDGMENT Released: September 26, 2013