Court File and Parties
COURT FILE NO.: CV-17-583206 DATE: 20181128 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
TANYA REBELLO Plaintiff – and – THE BANK OF NOVA SCOTIA Defendant
Counsel: Avi Charney, lawyer for the Plaintiff Laura K. Fric and Evan Thomas, lawyers for the Defendant
HEARD: November 26, 2018
Reasons for Decision
F.L. Myers J.
The Motion
[1] The defendant moves to dismiss this lawsuit for two reasons. First, it claims that the fresh as amended statement of claim fails to state a reasonable cause of action. Second, it claims that even if the statement of claim is or could be properly drafted, the action itself amounts to an abuse of the processes of the court.
[2] For the reasons that follow, I strike out the statement of claim and dismiss the action. The fresh as amended statement of claim fails to plead proper causes of action against the defendant. Moreover, in my view, both in its inception and in the manner that it has been carried, this action is an abuse of process. In my judgment, the most just outcome is therefore to refuse to grant leave to amend and to dismiss the action at this time.
The Fresh as Amended Statement of Claim
[3] I will deal with fresh as amended statement of claim first before discussing any evidence or making any findings of fact.
[4] The defendant’s motion to strike is brought under Rule 21.01 (b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The motion is determined from a review of the pleading alone.
[5] I approach the motion to determine if the fresh as amended statement of claim sets out recognized causes of action or a series of factual allegations that, if proven, would entitle the plaintiff to a legal remedy. The rules guiding this exercise are not in doubt. First, with few exceptions, I am required to assume that all of the facts alleged in the plaintiff’s fresh as amended statement of claim are true. The issue is not whether the plaintiff can prove the things she alleges. Proof comes later. At this stage, the issue is just whether the plaintiff has alleged a coherent set of facts that can possibly provide her with a basis for obtaining judgment against the defendant under the applicable law. Second, I am required to read the statement of claim generously. That is, I am not trying to end the lawsuit just because lawyers can read the words used in a statement of claim in a narrow or technical sense that might not support a case. Third, I am not to dismiss the claim if it raises a very difficult or novel issue of law. If, however, assuming the facts to be true and reading the claims generously, it is plain and obvious that the plaintiffs cannot win the lawsuit, then I must dismiss the case now and save everyone the expense and trouble of dealing with it further for no reason. R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42; Hunt v. Carey Canada Inc., 1990 SCC 90.
[6] Broadly speaking, the plaintiff advances three factual bases for suing the defendant. First, she pleads that the defendant used her personal information in a lawsuit in the Federal Court of Canada and in proceedings before the Canada Labour Board. Based on these facts, the plaintiff asserts the right to a remedy for breach of privacy, breach of contract (including breach of the bank’s privacy policy), negligence, defamation, and breach of fiduciary duty.
[7] This piece of the plaintiff’s claim cannot surmount the law of absolute privilege. As a party to a lawsuit, the defendant cannot be held liable for anything that it pleaded or said in that legal proceeding. The law applies equally to proceedings before a labour board. Sauve v. Merovitz at paras. 32 to 41. The fact that the plaintiff was not a party to the claim or that she claims breach of contract does not undermine the “absolute” nature of the privilege attaching to the defendant. I note further that there is no amendment that the plaintiff could possibly make to this part of her claim that would allow her to sue the defendant for something it said in a lawsuit. Therefore, regardless of the discussion of abuse of process below, this part of the plaintiff’s claim must be dismissed.
[8] The plaintiff’s second factual allegation is that the defendant, or people for whom it is responsible, have trespassed on her property to bury illegal and hazardous devices to injure her. This plea, set out principally in para. 8 and (the first) para. 37 of the fresh as amended statement of claim, is wholly bald. That is, while it uses the legal word “trespass,” it does not say who did what, when, or how. There is no way to tell whether the plaintiff claims to have actually been injured by a device buried by the defendant or others or what that injury might consist of or when or how it happened.
[9] This is not a case of requiring the plaintiff to flesh out tidbits to make the story more understandable to the defendant. The pleading has legal words, but it lacks the “allegations of material fact” required by Rule 25.06 (1).
[10] In a seminal decision, Copland v. Commodore Business Machines Ltd., Master Sandler wrote:
Rule 25.06(1) mandates a minimum level of material fact disclosure and if this level is not reached, the remedy is not a motion for "particulars", but rather, a motion to strike out the pleading as irregular.
[11] Accordingly, the trespass allegations must be struck out. I deal with the issue of amendment below.
[12] The third factual basis for the plaintiff’s claims is her allegation that the defendant bank conspired with the Ontario Provincial Police, the Toronto Police Service, and the Ministry of Transportation to change her car VIN and license plate so that the car could be reported stolen and the plaintiff charged. The plaintiff alleges further that the conspirators worked in concert “in multiple attempts to maliciously prosecute the plaintiff.”
[13] The plaintiff does not plead that she actually was charged with any offence or that any charge was resolved in her favour. Both of these are required pleadings for the tort of malicious prosecution. As to conspiracy by unlawful means, there is no indication as to what unlawful acts were taken by the defendant bank in furtherance of the pleaded conspiratorial intent. A plea of conspiracy must make allegations of fact that amount to unlawful conduct by each conspirator. Only unlawful conduct done in concert is actionable. Agriband Purina Canada Inc. v. Kasamekas, 2011 ONCA 460, at para. 28. She has not made any allegations of suffering special damages from the conspiracy alleged or what the bank might have done to cause or contribute to any losses she claims to have suffered.
[14] Beyond the technical aspects of pleading, I am simply unable to discern what facts are actually alleged to amount to actionable wrongs against the defendant from the paragraphs setting out the trespass and conspiracy claims. The plaintiff pleads further that she is being watched by video surveillance 24 hours per day and this has left her in a state of paranoia and fear that she will be targeted and attacked by the defendant bank. No doubt the plaintiff’s pleading represents manifestations of her concerns and fears. But lawsuits are not based on concerns and fears. Rather, pleadings require concrete allegations of material fact. The plaintiff’s fresh as amended statement of claim is deficient in that regard and must be struck out.
Abuse of Process
The Real Plaintiff is Gary Curtis
[15] For the first many months of this proceeding, the plaintiff was ostensibly self-represented. In fact however, she was represented by a non-lawyer named Gary Curtis. Mr. Curtis carried the claim in the plaintiff’s name pursuant to written authority purportedly signed by the plaintiff. As discussed below, Mr. Curtis has taken steps in the plaintiff’s name that have been repeatedly found by various masters and judges to have been improper. He has been the affiant on all of the evidence adduced by the plaintiff. He has been in court for all proceedings. In fact, the plaintiff herself has never attended any court hearing and has not sworn any evidence in this proceeding.
[16] Mr. Curtis’s involvement did not arise in a vacuum. Mr. Curtis has a history with the defendant bank. He was an employee in its mortgage division for many years. After learning in 2012 that he was under investigation for a number of suspicious transactions, he submitted his written resignation from his employment.
[17] Since that time, Mr. Curtis has been engaged in a legal campaign directed against the defendant and an expanding cast of characters including his former lawyer and the bank’s lawyers. First, he brought a federal human rights complaint and a labour board proceeding challenging his resignation. He was unsuccessful. He sought judicial review of the labour board’s decision before the Federal Court of Canada. He was unsuccessful. In 2014 he sued the bank and several of its employees in this court for defamation. In 2015, Mr. Curtis sued the lawyer who had acted for him in his federal labour board and court proceedings. More recently, he made a discipline complaint about the bank’s current counsel to the Law Society of Ontario (that has been dismissed).
[18] The federal proceedings in which the plaintiff in this action alleges that her information was disclosed by the bank are Mr. Curtis’s proceedings.
[19] This action appears to be driven at all stages by Mr. Curtis rather than the plaintiff. It is a continuation of his quest against the bank. The plaintiff’s responding record on this motion is devoid of factual evidence about the plaintiff and thick with Mr. Curtis’s evidence about his various proceedings against the bank and others. In its inception, this action is part and parcel of Mr. Curtis’s ongoing campaign against the bank. The plaintiff may be content to help him or, more correctly, to let him use her name to continue his struggle. But I am unable to see any basis in the evidence to conclude that the plaintiff is engaged at all in bringing this proceeding for a bona fide purpose.
The Abusive Conduct of this Lawsuit
[20] There have been approximately 20 appearances in this proceeding in the year since its commencement. Although the plaintiff was told that the defendant was defending and moving to strike her claim, Mr. Curtis proceeded improperly to note the defendant in default. Master Short set aside the noting in default.
[21] Mr. Curtis asked the Master to recuse himself for bias at that hearing and to release the audio recording of the hearing to him for transcribing. The Master declined both requests.
[22] Mr. Curtis then appeared before Master McAfee, purportedly without notice to the defendant, to again seek a transcript of the recording of the proceeding before Master Short and to seek an order requiring the OPP to provide certain other information. In denying the relief sought, Master McAfee noted that Mr. Curtis had no right to represent the plaintiff despite in court his argument to the contrary. (Masters Abrams and Short had also told Mr. Curtis that he was not entitled to appear in this court on behalf of the plaintiff at prior hearings.)
[23] The plaintiff appealed the rulings of Master Short and Master McAfee concerning the audio recordings. Pollak J. dismissed the appeals as the plaintiff did not attend. Mr. Curtis says that he was held up in traffic. Mr. Curtis then appeared before Perell J. on February 20, 2018, to seek the same relief for the plaintiff as had already been denied by three judicial officers by that time.
[24] Justice Perell again noted that Mr. Curtis did not have a right to attend to represent the plaintiff. However, like prior judges and masters, Perell J. allowed Mr. Curtis to speak just for the purposes of that hearing. Ultimately Justice Perell quashed the plaintiff’s motion. He found that the repeated motions before Master McAfee, Justice Pollak, and himself, all for the same relief, amounted to an abuse of process.
[25] On February 21, 2018, the day after the appearance before Perell J., the defendant and Mr. Curtis appeared before Master Jolley on an urgent basis. Mr. Curtis had threatened to once again note the defendant in default unless it delivered its statement of defence. When Master Short set aside the prior noting in default, he ordered that the plaintiff had until a fixed date to either deliver a defence or move to strike the plaintiff’s claim. The defendant brought its motion on time. Therefore, its statement of defence was not yet due. The Master refused Mr. Curtis’s request to adjourn the motion because Mr. Curtis would not commit to refrain from noting the defendant in default pending the return of the motion. Master Jolley found “[i]t would be highly improper for the plaintiff to attempt to note the defendant in default in face of the order of Master Short and the set date for the Rule 21 motion.”
[26] Master Jolley also scheduled a hearing to deal with the defendant’s request that the case be case managed. Master Jolley went on to discuss Mr. Curtis’s role. She ultimately ordered at para. 4 of her order dated February 21, 2018:
In the event Mr. Curtis intends to assist Ms. Rebello in future, she shall be in attendance in court, so it is clear Mr. Curtis is assisting her and not representing her.
[27] Despite this order, Mr. Curtis attended before Conway J. in Divisional Court on April 4, 2018, to seek an extension of time to appeal Master Short’s setting aside of the noting in default. The plaintiff did not attend as ordered.
[28] The Divisional Court is not the correct court for the appeals sought by the plaintiff. The appeals lay to a single judge of the Superior Court under Rule 62. Justice Conway noted that Mr. Curtis was not allowed to act for Mr. Rebello. However she allowed him to speak that day. She refused the extension of time sought because the proposed appeals did not lie to the Divisional Court.
[29] In a separate endorsement that day, Conway J. also refused Mr. Curtis’s request to stay the case management hearing scheduled by Master Jolley.
[30] On April 18, 2018, Mr. Curtis attended with counsel for the defendant before Master Graham to consider case management. The Master adjourned the hearing at Mr. Curtis’s request as he said that the plaintiff had a medical emergency. The Master made it clear that Ms. Rebello must be present in court when that matter was returned. Moreover, he repeated Master Jolley’s order that unless she has counsel, Ms. Rebello must attend court personally for all court appearances. Master Graham also ordered that any further requests based on the plaintiff’s health be supported by medical evidence.
[31] On August 7, 2018, the plaintiff brought a motion before Faieta J. to set aside the order made by Master Short lifting the noting in default of the defendant and to set aside Master Jolley’s order. The appearance had been scheduled by Justice Archibald on June 5, 2018 to proceed as appeals from Master Short and Master Jolley. Counsel appeared for the plaintiff on this motion for the first time.
[32] Rather than an appeal hearing as had been scheduled, the plaintiff purported to move under Rule 37.14. That rule allows a person affected by an order obtained without notice to move to vary or set aside the order as soon as they learn of it. The rule obviously did not apply to this circumstance. By moving under Rule 37.14, the plaintiff hoped to avoid the need to obtain an extension of time to appeal. Justice Faieta referred to the motion as an attempt to circumvent the rules relating to interlocutory appeals and dismissed the motion.
[33] Justice Faieta also dealt with the plaintiff’s grounds of review of the underlying orders on their merits. He found the order allowing the defendant to move to strike the claim before defending both proper and consistent with the fresh step rule in Rule 2.02. In dealing with counsel’s argument that Mr. Curtis ought to be allowed to represent Ms. Rebello, Justice Faieta found:
[40] Mr. Curtis is not a lawyer. As reflected in his written submissions and the positions that he has taken in this proceeding, Mr. Curtis has no legal expertise. The plaintiff’s reliance on the free assistance provided by Mr. Curtis is misguided. Amongst other things, the plaintiff has: (1) failed to file appeals of the orders challenged on this motion in a timely manner and brings this motion instead; (2) acted in a manner that, in the words of Justice Perell, amounts to an abuse of process; and (3) brought two unnecessary motions in the Divisional Court that were dismissed by Justice Conway.
[42] I find that Master Short did not err in refusing to permit Mr. Curtis to represent the plaintiff at the hearing of the motion. I also order that Gary Curtis shall not represent the plaintiff in these proceedings, including any appearances before the Superior Court of Justice.
Rebello v. The Bank of Nova Scotia, 2018 ONSC 4776
[34] Faieta J. ultimately held that neither Master Short nor Master Jolley had committed any errors in dealing with this case. He dismissed the motion and ordered the plaintiff to pay costs of $1,000 to the defendant within 30 days. He noted that he would have ordered a higher quantum of costs but the defendant had sought only a token payment. In his discussion of costs Faieta J. wrote:
It is not in the interest of justice to clog our courts with motions that clearly have no merit, nor to have a party incur costs for which it will not be fully indemnified when responding to such motions.
[35] The plaintiff is seeking leave to appeal from the decision of Faieta J. to the Divisional Court.
[36] This motion to strike came on for hearing on August 29, 2018 before Dow J. New counsel attended for the plaintiff and asked for an adjournment to get up to speed. Dow J. agreed and adjourned the matter on a peremptory basis to November 26, 2018. He also declined a request by Mr. Curtis to make submissions on the motion under Rule 37.07 ostensibly as a person affected by the order sought. That Mr. Curtis asserts that a motion to dismiss the plaintiff’s proceeding affects him is telling in the abuse of process analysis below.
[37] Dow J. ordered the plaintiff to pay costs thrown away of the day of $2,000 within 30 days.
[38] The plaintiff is seeking leave to appeal to the Divisional Court from the order of Dow J.
[39] On October 16, 2018, the plaintiff’s counsel sought to adjourn the motion to strike the plaintiff’s claim as had been scheduled by Justice Dow. The plaintiff’s counsel argued that her motions for leave to appeal the setting aside of the noting in default (and others) should be heard before the court hears the motion to strike her claim. Justice Diamond disagreed and ordered that the motion to strike proceed on November 26, 2018.
[40] On November 20, 2018, the plaintiff once again sought to adjourn the motion to strike. Diamond J. once again declined to accede to that request. Justice Diamond noted that the plaintiff had failed to provide 48 hours’ notice of the motion as had previously been required by order of Archibald J. Justice Diamond held that “nothing new has changed since my order of October 16/18.” The plaintiff argued that because she delivered a fresh as amended statement for claim on August 20, 2018, the motion to strike the original claim could not proceed. Justice Diamond held that the motion would proceed as scheduled on November 26, 2018 on the fresh as amended statement of claim. He also awarded the defendant $250 in costs payable by the plaintiff in any event of the cause.
[41] On November 20, 2018, the plaintiff delivered a new notice of motion returnable on a date to be set, seeking an order that Dow J. be recused from hearing any further motions in this action, including this motion to strike, on the basis of bias.
[42] At the outset of the hearing of the motion before me on November 26, 2018, the plaintiff’s counsel handed up a letter addressed to the Divisional Court dated November 23, 2018, purportedly signed by the plaintiff personally, asking for a stay of Justice Faieta’s order dated August 17, 2018 and Master Short’s order entitling the defendant to move to strike the plaintiff’s claim before filing its statement of defence. The letter was not sent by counsel for the plaintiff and was not accompanied by a motion record.
[43] The plaintiff’s counsel sought an adjournment of the hearing before me. After considering the arguments, I gave a brief written endorsement denying the adjournment. Thereafter counsel announced that he had in hand a notice of motion seeking leave to appeal to the Divisional Court from my (anticipated) denial of the adjournment.
[44] Counsel for the plaintiff confirmed that the plaintiff has not paid any of the costs that she has been ordered to pay. He argued that in the plaintiff’s view the costs were stayed by her motions for leave to appeal. He agreed with me however that his client’s “view” was not correct in law.
The Law of Abuse of Process
[45] The authority to dismiss a proceeding under Rule 21.01 (3)(d) on the basis that it is “frivolous, vexatious, or an abuse of process” is not often used except when a plaintiff brings a second claim to try to re-litigate a previously unsuccessful claim. However, the rule has an operative sphere of its own. In its notice of motion, the defendant relies on Rule 21.01 (3)(d) as a basis for the court to dismiss the claim. I prefer to consider the rule by analogy or as a factor in assessing the discretionary decision as to whether to grant the plaintiff leave to amend her claim despite the decision to strike it out.
[46] In Currie v. Halton Regional Police Services Board, Armstrong JA discusses the availability of the Rule 21.01 (3)(d). He relies on prior authority for the proposition that a frivolous case is one that has no chance of success. A vexatious proceeding, he found, is one brought without a reasonable basis. In essence, it is brought to vex the defendant. While both frivolous and vexatious cases may amount to an abuse of the court’s process, the more general sense of that term is that any case conducted in a manner that is manifestly unfair to a party or which would bring the administration of justice into disrepute, can fall under the court’s inherent jurisdiction to control and prevent the abuse of its process. Justice Armstrong cautioned that the dismissing a claim on this basis is reserved for the clearest of cases.
[47] The defendant argues that the plaintiff, or, actually Mr. Curtis, has conducted this case in a vexatious manner. It draws on Lang Michener v. Fabian (1987), 59 OR (2d) 353 which is a case describing vexatious conduct for the purpose of a “vexatious litigant” proceeding under s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[48] The defendant argues that several of the descriptive categories recited by Henry J. in Lang Michener are present in this case: The claim is drafted in an irrational manner that has little or no chance of success. It has apparently been brought by Mr. Curtis as a continuation and broadening of his efforts to harass the bank despite his lack of success before the Canada Labour Board and the Federal Court of Canada. Mr. Curtis’s claim to be a person affected by an order dismissing this action under Rule 37.07 lays this bare. The proceeding seems to be a rolling forward of Mr. Curtis’s allegations from his initial proceedings. That is, he takes events that occurred in or surrounding the Federal Court case and uses them as a basis to start litigation against his lawyer, the bank, and this claim. The plaintiff has failed to pay any of the very modest costs awards that have been made against her. She has ignored orders requiring her to attend court as a self-represented party. The plaintiff has consistently taken appeals or brought motions to re-hear prior proceedings that are abusive. The ink was not yet dry on my refusal to adjourn a peremptory motion before the appeal was announced. The appeal was formulated prior to hearing the basis upon which the relief was refused. It is a tactic rather than a considered step.
[49] I agree with these submissions.
[50] Moreover, Mr. Curtis’s role is more than just a small concern. He received and abused the discretionary largesse of several judges by continuing to appear in court without the plaintiff after being told that this was improper and even after being ordered to stop doing so. In her letter to the Divisional Court seeking a stay of the orders of Masters Short and Jolley, the plaintiff now asserts that those orders were made without notice to her. That is, now she seems to be denying that Mr. Curtis was representing her. That does not explain her absence or the signed documents purporting to give Mr. Curtis authority to act as the plaintiff’s agent that he submitted. But it does show the risk of abuse inherent in repeatedly allowing a non-lawyer to appear in this court even if done as a matter of seeming largesse.
[51] In my view, this action meets the standard set under Rule 21.01 (3)(d). In its inception it is a continuation of Mr. Curtis’s quest against the bank. It has been carried in a manner to maximize cost and inconvenience for the bank regardless of the merits or lack of merit in any steps taken.
Amendment
[52] In Conway v. The Law Society of Upper Canada, 2016 ONCA 72, at paras. 16 to 18, the Court of Appeal held that if it is not plain and obvious that an action cannot succeed, in the ordinary course the plaintiff ought to be given leave to try to cure pleadings deficiencies. As discussed above, no amendment can overcome the law of absolute privilege that applies to the defendant’s conduct as a litigant. Given the inherent weakness of the plaintiff’s trespass and conspiracy allegations, combined with the abusive antecedents to this action, and the abusive manner by which the plaintiff has allowed Mr. Curtis to carry the proceeding, in my view it would be unjust to grant the plaintiff leave to amend the claim. Doing so would just be an invitation to the plaintiff to inflict further costly and abusive proceedings on the defendant with no realistic sense that a credible lawsuit lies dormant waiting to emerge.
Result
[53] The action is therefore dismissed.
[54] The court has received a costs outline ostensibly from the plaintiff personally seeking $58,950 in costs including 1,000 hours of her time over 14 months at $35 per hour. I am unsure as to why counsel did not submit a costs outline on behalf of his client.
[55] The defendant seeks costs of approximately $42,000 on a substantial indemnity basis. It seeks $30,000 all-inclusive on a partial indemnity basis. Counsel advises that they did not include in their calculations any time for appearances where the court has ordered costs or declined to order costs already.
[56] The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c)). Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v. Public Accountants Council (Ontario), (2004), 71 OR (3d) 291, at paras 26, 37.
[57] In Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, the Chief Justice of Ontario described the cases in which costs on a substantial indemnity basis may be available:
[43] The applicable principles can be summarized as follows: a. the fixing of costs is discretionary and the motion judge’s costs award attracts a high level of deference – it should be set aside on appeal only if the trial judge erred in principle or if the award is plainly wrong: see Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27; b. costs on a substantial indemnity basis should only be awarded “where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties”: Young v. Young, 1993 SCC 34, [1993] 4 S.C.R. 3, at p. 134; and c. the kind of conduct that will justify an elevated level of costs is not limited to conduct in the proceedings and can include the circumstances that gave rise to the litigation: Mortimer v. Cameron (1994), 17 O.R. (3d) 1 (C.A.), at p. 23; Clarington (Municipality) v. Blue Circle Canada Inc., 2009 ONCA 722, 100 O.R. (3d) 66, at para. 30.
[58] In my view, this is a case where the defendant should be entitled to indemnity for substantially all of its costs. The action is an abuse of process and has been conducted abusively since its commencement. The plaintiff has allowed Mr. Curtis to carry on as if he was her lawyer. She has not attended court despite several judges and Masters requiring her to attend if she wished to have Mr. Curtis’s assistance. She has not paid costs as ordered. I note that Mr. Curtis was present in court with counsel before me. The plaintiff was not.
[59] The repeated threats to note the defendant in default and ongoing complaints about the defendant being allowed to move to strike before pleading represent both a lack of knowledge of the court’s proceedings but also a refusal to accept the court’s rulings. The plaintiff’s attempt to re-argue motions – including the efforts to obtain transcripts and their repeated attendances before Diamond J to seek to adjourn this peremptory hearing – had no merit and just served to run up costs.
[60] The defendant’s costs seem high for a motion to strike. However, the action has been dismissed. The defendant is entitled to costs of the full action and not just the motion. Moreover, as the findings above show, this motion was dragged through almost a year of skirmishes in the action. The motion involved detailed factual preparation to set out the complicated and lengthy procedural background. While a self-represented party is not entitled to claim costs for her time unless she was performing a task that a lawyer would perform, the fact that the plaintiff could claim costs in the order of $59,000 leads me to conclude that the plaintiff understood throughout that she had made this an expensive venture. The bank’s costs as claimed are well below the amount claimed by the plaintiff. They are therefore within a range that the plaintiff ought to reasonably have expected paying.
[61] In my view the bringing of this action and the manner it was carried meets the description of “reprehensible” set out in paras. 42 (b) and (c) of the Mars decision above. This is a very unusual action. It is an extreme case in the terms of the allegations made and the manner of proceeding. In my judgment, this case is one for substantial indemnity costs. I have reviewed the defendant’s costs outline. The rates charged and hours billed seem very reasonable and restrained to me. I therefore order the plaintiff to pay costs to the defendant fixed in the amount of $40,000 all-inclusive forthwith. For clarity, I note that this is in addition to all other outstanding costs awards.
Released: November 28, 2018 F.L. Myers J.
