SUPERIOR COURT OF JUSTICE – ONTARIO
(DIVISIONAL COURT)
RE: CLOTILDE BÉRUBÉ v. RATIONAL ENTERTAINMENT LIMITED
BEFORE: Mr. Justice Denis Power
COUNSEL: Clotilde Bérubé, Self-Represented
Jordan E. Plener, for the Defendant/Respondent
ENDORSEMENT WITH RESPECT TO COSTS ON THE APPEAL
1The respondent was the successful party in this matter. Ms. Bérubé’s appeal from the decision of Tierney J. of the Small Claims Court dismissing her action was dismissed. Each party seeks an award of costs in her/its favour. In her letter of January 28, 2010 addressed to me Ms. Bérubé, among other things, stated as follows:
… I am also attacking your good faith in this case and I really have some doubts about your sanity as you yelled and scream [sic, screamed] at me constantly during the trial.
2First of all, there was no trial. Secondly, the allegation that I yelled and screamed at her is patently false. She went on in her letter to say:
Be assured that if you ordered that costs be paid forthwith to the Defendant that I will not hesitate to make a formal complain [sic, complaint] about you and maybe even start legal proceedings. I loathe you and people like you that have no conscience.
3These submissions, of course, do not advance her claim for an award of costs. I see no reason whatsoever why I should depart from the general rule that costs should follow the success in the cause. Therefore, an award of costs will issue in favour of the respondent.
4The respondent seeks an award on the substantial indemnity scale. In support of this submission, counsel for the respondent argues that the appeal was dismissed on the grounds that it was “manifestly devoid of merit” and that it, the appeal, was “frivolous and vexatious and an abuse of the process of this Court.” Counsel argues, as well, that Ms. Bérubé made allegations against them of fraud and other improper conduct.
5In my opinion, the proper scale is the partial indemnity one. The respondent was not successful in all of the matters that were before me and, as well, I made no final determination of the allegations of wrongdoing.
6The legal work performed on behalf of the respondent was performed by Mr. Plener and Ms. Lewis, both of whom were called to the bar in 2009. They claim an actual billing rate of $160 per hour and a partial indemnity rate of $140. Both of these amounts are reasonable. However, as aforesaid, the costs will be fixed on the partial indemnity scale.
7The respondent claims the amount of $5,529.31 on the partial indemnity scale. This includes disbursements of $457.81. However, as I interpret the “Costs Outline” submitted by the respondent, no claim is made for counsel fee on the hearing of the appeal.
8In fixing the costs I also take into consideration that the amount claimed in the appellant’s statement of claim is $7,200. In my opinion, any award of costs on the appeal before me must take into consideration the amount in issue in the proceeding.
9In my opinion, an appropriate award on a partial indemnity basis is $3,500 inclusive of GST and disbursements. Accordingly, I order that the appellant forthwith pay to the respondent on account of its costs the sum of $3,500.
10The appellant is a lawyer by education and training. Accordingly, she should be aware that the courts and its justices are entitled to respect regardless of her success or lack thereof in court. As aforesaid, in her letter of January 28, 2010, she questioned my sanity, falsely accused me of yelling and screaming at her during the appeal; threatened to make a complaint against me; and accused me of having no conscience.
11In her appeal documents she made the following statement:
Finally, the plaintiff suggests that it is time to remove Justice Tierney from the bench. Not only is he out of touch with reality, he shows partially [sic] in most cases by taking the side who is represented by a lawyer. Since he does not know his law, he decides on issues as he sees fit to please the lawyers by siding with them and by adopting their theory. It is therefore a considerable loss of time and energy from [sic] anyone who wants to fight for her rights and for justice. The man has lost a complete understanding of the law and the meaning of justice and has foregone his role as a judge.
12Ms. Bérubé also accused Tierney J. of “making this entire trial a mockery of the judicial justice, [sic, system] an abuse of power and a complete denial of justice.”
13I trust that Ms. Bérubé will refrain from further comments of this nature.
Power J.
Released: February 9, 2010
CITATION: Bérubé v. Rational Entertainment Limited, 2010 ONSC 894
COURT FILE NO.: DV-09-1559
DATE: 2010/02/09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CLOTILDE BÉRUBÉ v. RATIONAL ENTERTAINMENT LIMITED
BEFORE: Power J.
COUNSEL: Clotilde Bérubé, Self-Represented
Jordan E. Plener, for the Respondent
ENDORSEMENT WITH RESPECT
TO COSTS ON THE APPEAL
Power J.
Released: February 9, 2010