Court File and Parties
COURT FILE NO.: CV-16-0102-00 DATE: 2017 12 05 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DARREN JOHN, Plaintiff AND: JIM RICHARDS, BELL MEDIA INC., BELL MEDIA, NEWSTALK 1010, THE SHOWGRAM and CFRB, Defendants
BEFORE: Trimble J.
COUNSEL: Darren John, Plaintiff, self-represented P. Jacobsen and J. Lefebvre, for the Defendants
HEARD: In writing in Chambers
Costs Endorsement
[1] In reasons dated October 20, 2017, I granted the Defendants’ motion for Summary Judgment and dismissed Darren John’s action against them. I invited submissions as to costs and set a timetable for those submissions. The Defendants delivered submissions within the time allotted. Mr. John was to serve and file his submissions by 4:30 p.m., November 17, 2017. By November 22, Mr. John had not filed submissions.
[2] The Defendants seek costs against Mr. John of $35,359.11. This sum comprises partial indemnity costs up until the date of the Defendants’ offer to settle of October 19, 2016, and substantial indemnity costs thereafter.
[3] The Defendants say that because they were wholly successful, Mr. John should pay the costs. They served an offer to settle on October 19, 2016 in which they offered to dismiss the claim on a without cost basis which was open for acceptance until after the commencement of the summary judgment motion. The offer was not accepted.
[4] In addition, and setting aside the application of Rule 49, they rely on the decision of Brummell v. Williams, 2015 ONSC 6776, in which the Defendants made a similar offer, were wholly successful, and the matter was dismissed. Further, the court held that the Plaintiff had protracted the proceeding.
[5] In this case, the Defendants say that Mr. John caused delay in the proceeding. The summary judgment motion was scheduled, initially, for February 8, 2017 but was adjourned at Mr. John’s request so that he could file materials. He did not file a motion record or factum as required by the Rules. Instead, he filed what he called an Affidavit which I held to be deficient and failed to provide any admissible evidence in support of any of the claims he was advancing. It was, predominantly, his argument.
The Law on Costs
[6] Costs are discretionary. The power to award them is found in section 131 of the Courts of Justice Act and the jurisprudence thereunder. Rule 57.01 of the Rules of Civil Procedure, and the jurisprudence thereunder, sets out the factors to consider when awarding costs.
[7] Cost’s awards have a number of purposes, three of which are to indemnify (partly) successful litigants, encourage settlement, and correct behaviour of the parties (see 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, at para. 10). Generally costs should follow the event (see Bell v. Olympia & York (1994), 17 O.R. (3d) 135 (C.A.)). Costs should be proportional to the issues in the action and the outcome, and should be reasonable for the losing party to pay, all circumstances considered (see Boucher v. Public Accountants, (2004), 71 O.R. (3d) 291 (C.A.) and Moon v. Sher et al., [2004] OJ No 4651 (C.A.)). Conduct of the parties is also relevant, where it deserves sanction or correction (see Davies v. Clarington (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.)).
[8] In this case, costs should follow the event.
[9] The central question is the extent of the costs Mr. John must pay. I have no doubt that the issues were as important to the Defendants as they were to the Plaintiff in this action. However they must still be reasonable and proportional for the losing party to pay in all the circumstances.
[10] In this case, the costs must address Mr. John’s behaviour. It requires correction. Why do I say this?
[11] First, Mr. John’s approach to his obligations on the summary judgment motion is unacceptable. Mr. John sought and was given an eight month adjournment so that he could serve and file responding material to the motion. He did not do so. Instead, at the hearing of the motion he produced to the court what he called an Affidavit which, I held to be deficient. It failed to contain any admissible evidence in support of any of the claims he brings. Rather, the document was replete with statements of position and argument and bald statements of fact without substantiation.
[12] Second, Mr. John’s dealings with the Defendants were in bad faith. He negotiated a settlement whereby the Defendants would read on air, a statement which he agreed addressed and resolved all his concerns. The Defendants complied with the settlement.
[13] He asked the Defendants to read the agreed-to statement on air, a second time. The Defendants complied on January 21, 2016.
[14] By the time Mr. John asked the Defendants to read the agreed-to wording a second time, however, Mr. John had changed his mind about the settlement, consulted a lawyer, and issued his Statement of Claim in this matter. He asked the Defendants to repeat the agreed-to statement on air, without telling them that he had changed his position and issued his Claim. Only after the Defendants aired the agreed-to statement for a second time did Mr. John serve his Statement of Claim.
[15] Mr. John consulted a lawyer before issuing and serving his Statement of Claim, (see his email to Ms. Nanjad, 1:59 a.m., January 22, 2016). He must have known at that time that much of his Claim was incorrect. He registered himself and his music with SOCAN yet the understanding of how the SOCAN royalty system worked that he advanced at trial was incorrect. It appears he did not inquire as to how it worked. He alleged infringement of copyright when he ought to have known this was untrue. He alleged theft when there was no theft. He entered into a settlement then resiled from it. He claimed that there was no settlement, but if there was one, he should not be bound by it because he is a self-represented litigant who had not taken independent legal advice at the time he entered into the agreement.
[16] Third, while Mr. John is a self-represented litigant, he is no stranger to litigation in the Superior Court. Indeed, he has significant experience. A review of the database indicates that since October 21, 2014, Mr. John has been involved in 13 procedures in the Superior Court, one in the Divisional Court, and one in the Court of Appeal which have resulted in reported judgments. He is the Plaintiff in each of these proceedings. Of the 13 trial level proceedings, Mr. John was partly successful on one trial before me, and successful in resisting one summary judgment motion. The remaining 11 matters were dismissed. With respect to the Divisional Court and Court of Appeal matters, Mr. John was also unsuccessful.
[17] Of the 11 of Mr. John’s actions that were dismissed, two were summary judgment motions before me (including this one). In the other summary judgment matter I heard, Mr. John also filed inadequate materials, a fact which I address shortly.
[18] The 15 reported decisions discussed above do not include any decisions which were not reported, or the Ontario Human Rights and Labour Relations Tribunal disputes Mr. John commenced that were reported.
[19] Given Mr. John’s frequency of appearance in Superior Court, I find that he knows that on summary judgment motions the responding party must file a motion record and a factum. In this case, he filed at the return of the motion, an “affidavit” that was mostly argument, what might have been evidence was not properly put before the Court, and which did not attach exhibits properly. In John v. Ballingall et al., 2016 ONSC 2245, the other summary judgment motion argued before me in an action he brought, at paragraph 8 and 9 I reviewed the material that Mr. John filed, last minute, in that action. It is similar to that which he filed in this matter.
[20] I find that Mr. John knows what he must file on a summary judgment motion, and the legal test he must meet. He knows that affidavits contain evidence and facta contain argument. He knows exhibits must be appended to and attested to in properly sworn Affidavits. Mr. John, however, is indifferent to what is required of him. He is simply unwilling to place adequate materials before the court or any materials that comply with the Rules of Court.
[21] I find that Mr. John is a recreational litigant who uses litigation for his own purposes, with minor exceptions, unsuccessfully. Mr. John has a right to bring disputes to the courthouse until such time as a court suspends or limits this right. Having brought procedures before the court frequently, however, as an experienced self-represented litigant, he must follow the Rules of Court and must be accountable to the court, to those who are successful against him in litigation, and to the public whose resources Mr. John consumes. His unwillingness or refusal to abide by the Rules of Court requires correction. I have factored this into the assessment of the costs against him.
Analysis
[22] I decline to order substantial indemnity costs from the date of the Defendants’ offer to settle pursuant to Rule 49. The offer is not Rule 49 compliant. A dismissal of the Plaintiff’s case does not result in a judgment. Therefore, Rule 49.10 is not engaged.
[23] I exercise my discretion under Rule 57 and Rule 49, however, to award substantial indemnity costs from the date of the offer onward in order to address the behaviour modification concerns expressed above.
[24] What is the reasonable, proportional, and fair costs amount for Mr. John to pay to the successful Defendants?
[25] The Defendants served and filed a Statement of Defence and prepared and argued a motion. In respect of the motion they spent 85.8 hours in preparation and 20.1 hours drafting a Statement of Defence. The time spent is excessive on a party and party assessment. A reasonable, proportional, and fair assessment of costs for Mr. John to pay the Defendants is $25,000, all inclusive. These costs will be paid within 30 days of the release of these reasons.
Trimble J. Date: December 5, 2017