Massiah v. Justices of the Peace Review Council, 2018 ONSC 3097

CITATION: Massiah v. Justices of the Peace Review Council, 2018 ONSC 3097

DIVISIONAL COURT FILE NO.: 316/15

DATE: 20180517

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Errol Massiah Applicant

– and –

Justices of the Peace Review Council and the Lieutenant Governor by and with the advice and concurrence of the Executive Council of the Legislative Assembly for the Province of Ontario and The Attorney General of Ontario Respondents

– and –

Raj Anand and Weir Foulds LLP Intervenors

BEFORE: Conway, McKelvey, and Myers JJ.

COUNSEL: E.J. Guiste, Lawyer for the Applicant; Scott Hutchinson and Matthew R. Gourlay, Lawyers for the Justices of the Peace review Counsel; Sara Blake, Lawyer for The Attorney General of Ontario and The Lieutenant Governor in Council; Tim Gleason and Lindsay N. Beck, Lawyers for Raj Anand and Weir Foulds LLP

READ at Toronto: May 17, 2018

COSTS ENDORSEMENT

By the Court:

[1] In 2012, the Justices of the Peace Review Council (“JPRC”) recommended that the Applicant, Mr. Massiah, be removed from office due to misconduct. He sought judicial review of that decision. By order dated October 4, 2016, the Divisional Court dismissed his application for judicial review with respect to the finding of misconduct.[^1] The Applicant and the JPRC sought leave to appeal the October 2016 order. The Court of Appeal for Ontario dismissed both applications.

[2] The Applicant then brought a motion before this court to set aside the October 2016 order pursuant to Rule 59.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194. This court dismissed the motion.[^2] We found that it was an improper attempt by the Applicant to reargue the application for judicial review on the merits. We further found that the Applicant’s attempt to set aside the October 2016 order on the basis that Mr. Anand (his counsel on the judicial review application and the leave application) provided ineffective assistance of counsel was an abuse of process.

[3] The successful parties seek their costs of the Rule 59.06 motion. The Attorney General seeks partial indemnity costs in the amount of $25,000. The JPRC seeks substantial indemnity costs in the amount of $39,590. The intervenors Mr. Anand and his firm seek substantial indemnity costs in the amount of $29,404.68.

[4] The Applicant submits that there should be no order as to costs. He argues that (a) the attacks on the JPRC proceeding were meritorious; (b) the Applicant is impecunious due to his debts to his counsel; (c) this was public interest litigation; and (d) access to justice would be hampered by a costs award.

[5] We reject these arguments with the exception of the Applicant’s impecuniosity which we deal with in determining the quantum of costs below.

[6] The Applicant’s attacks on the JPRC’s decision that he be removed from office due to misconduct were already dismissed by the Divisional Court in the October 2016 order and leave was denied by the Court of Appeal. We held that he was not entitled to reargue the merits of the judicial review application on this Rule 59.06 motion. He is not entitled to continue to claim that his arguments are meritorious at this stage.

[7] We also do not agree that this was public interest litigation. The Applicant is seeking to protect his own job and his reputation, not to advance a public cause.

[8] Finally, we do not agree that awarding costs for a Rule 59.06 motion to set aside an order of the Divisional Court (for which leave to appeal has already been denied) presents any access to justice issues.

[9] The successful parties are entitled to their costs. With respect to the appropriate scale, the Attorney General seeks costs on a partial indemnity basis. The JPRC seeks substantial indemnity costs on the basis that the motion was fundamentally ill-conceived from the start and that the Applicant and his counsel were put on notice to that effect.

[10] While we agree that the motion was ill-conceived and ultimately unsuccessful, we are not persuaded that in the case of the JPRC this rises to the level of “reprehensible, scandalous or outrageous conduct” that justifies a higher scale of costs: see Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, at para. 134.

[11] We have reviewed the costs outlines of the Attorney General and the JPRC. This was a Rule 59.06 motion. While the volume of materials was high and the Applicant’s arguments unfocussed, the motion itself was not factually or legally complex. As mentioned above, we have taken the Applicant’s impecuniosity into account in determining the quantum of costs. In our view, a fair and reasonable costs award for the Attorney General and the JPRC is $7,500 each, all inclusive, on a partial indemnity basis. The Applicant is ordered to pay these amounts.

[12] With respect to Mr. Anand and his firm, on the other hand, we agree that this is an appropriate case for substantial indemnity costs. In raising his argument of ineffective assistance of counsel, the Applicant, through his counsel, attempted to impugn Mr. Anand’s competence and professional integrity in his conduct of the judicial review application. We found that this was not a basis for a Rule 59.06 motion to set aside the October 2016 order and that, in any event, it was undermined by the Applicant retaining Mr. Anand to seek leave to appeal.

[13] The Applicant ought reasonably to have expected that Mr. Anand would incur whatever costs it would take to defend his reputation and that he would seek substantial indemnity costs from the Applicant in doing so. Indeed, when Kiteley J. of this court allowed Mr. Anand and his firm to intervene on this motion, she stated that “this rule 59.06 motion may be ill-advised” and awarded $2,500 in costs to them.[^3] The Applicant nonetheless proceeded with the motion and his attacks on Mr. Anand.

[14] In our view, given the nature of the motion, the allegations against Mr. Anand, and the warning from Kiteley J., the Applicant has engaged in the type of reprehensible, scandalous, and outrageous conduct that justifies an enhanced costs award. In terms of quantum, we have considered what is a fair and reasonable amount for the unsuccessful party to pay (Boucher et al. v. Public Accountants Council for the Province of Ontario et al. (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)), as well as the Rule 57 factors, including the reasonable expectations of the Applicant and the principle of proportionality. While we have taken the Applicant’s financial circumstances into account in determining the quantum of these substantial indemnity costs, we note that impecuniosity will not shield litigants from accountability for the costs of reprehensible, scandalous, and outrageous conduct. We therefore order the Applicant to pay the costs of Mr. Anand and his firm on a substantial indemnity basis in the amount of $23,000, all inclusive.

Conway J.

McKelvey J.

Myers J.

Date: May 17, 2018

[^1]: The court did set aside and remit to the JPRC for re-hearing its recommendation that the Applicant not be reimbursed for his legal expenses.

[^2]: Massiah v. Justices of the Peace Review Council, 2018 ONSC 2179.

[^3]: Massiah v. the Justices of the Peace Review Council, 2017 ONSC 7100.