Court File and Parties

COURT FILE NO.: CV-18-607758 DATE: 20200604 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tanya Rebello, Plaintiff AND: Paragon Security et al., Defendant

BEFORE: Master P. Tamara Sugunasiri

COUNSEL: Turkienicz, E., Counsel for the Paragon Defendants/Moving Party (eturkienicz@mccagueborlack.com) Rebello, T., in person, Plaintiff/Responding Party (trebello100@outlook.com)

HEARD: In writing

Reasons for Decision on Costs

Preliminary Issue – Costs submissions longer than permitted

[1] On April 27, 2020, I ordered Ms. Rebello to pay security for costs to the Paragon Security Defendants. I then invited each party to provide written costs submissions of no more than three-pages in length to address costs of the main motion and Ms. Rebello’s November 2019 motion that successfully moved the main motion from December 19, 2019 to January 27, 2020. Since the Paragon Defendants were represented by counsel, I also ordered them to provide a costs outline which is required under Rule 57.01(6) of the Rules of Civil Procedure. Paragon delivered its materials which consisted of three-pages of submissions, a costs outline and a courtesy copy of a case they referred to in their submissions. The submissions and costs outline were ten pages.

[2] Ms. Rebello raised an issue with the length of the submissions and asked to file a ten-page submission in response. On May 8, 2020 I clarified for Ms. Rebello that if she relies on a case in her three-page submissions, she too could include a courtesy copy. I also directed that she limit her costs submissions to three pages. As a self-represented litigant, I did not require Ms. Rebello to provide a costs outline because as noted in Fong v Chang, self-represented litigants are not entitled to costs calculated on the same basis as litigants with counsel (at para. 26). In response, Ms. Rebello filed a 10-page submission and threatened to escalate the matter if the court did not comply.

[3] I can categorically state that the court does not bend to the will of threats, nor does it tolerate a litigant’s wilful disregard for court orders that she does not agree with. The rule of law is a cornerstone of our judicial system and a marker of a healthy democracy. Every citizen is subject to it including self-represented litigants.

[4] The issue is whether I will consider the totality of Ms. Rebello’s submissions. In considering this issue, I balance the importance of complying with court orders with ensuring procedural fairness. I conclude that I will consider Ms. Rebello’s submissions up to the end of page 5. Those submissions focus on the issue of costs of the January 27 motion, and the urgent November 26, 2019 motion. Within those five pages Ms. Rebello appropriately discusses the factors set out in Rule 57.01 of the Rules of Civil Procedure and provides her position on both entitlement and quantum of costs for both motions. The balance of the submissions re-litigate the security for costs motion or repeat in greater detail on her position that she is entitled to costs of her urgent motion in November of 2019. I also remind the parties that although I limited costs submissions to three-pages, I also consider the totality of the motion, the materials therein, and the parties’ conduct at the November and January hearings. Rest assured that the record is more than sufficient for me to fairly fix costs.

Ms. Rebello’s is entitled to Costs of the November 26, 2019 walk-in motion

[5] Ms. Rebello succeeded in a highly contested motion to adjourn Paragon’s December 19, 2019 security for costs motion and is entitled to some costs to represent time spent on lawyer’s work (Fong at para.26). While I have no evidence or argument that Ms. Rebello incurred an opportunity cost by foregoing remunerative activity, I recognize that she spent more time than an average litigant would have had to devote as a party. As the Court of Appeal notes in Fong however, costs awards to self-represented litigants are moderate and represent a reasonable allowance for the loss of time devoted to preparing for the motion. Ms. Rebello seeks $13,000 including what appears to be a penalty for alleged misconduct by the Paragon Defendants. I found no such misconduct. I award Ms. Rebello the reasonable amount of $2,000 for the November 26, 2019 motion. This considers the principles in Fong and the fact that Paragon was partially successful in its request to have the new date made peremptory on Ms. Rebello. I make no award of costs to Paragon.

The Paragon Defendants are entitled to substantial indemnity costs of its security for costs motion

[6] The Paragon Defendants seek substantial indemnification for its security for costs motion. I agree that substantial indemnity costs are warranted. In so concluding, I consider the following factors as set out in Rule 57.01 of the Rules of Civil Procedure.

The experience of counsel and the reasonable expectation of cost

[7] Mr. Turkienicz, a nine-year call, did the bulk of the work. He appropriately designated some work to students. Ms. Hartley, who is the senior counsel on the file, spent little time on the motion. Given the value of the claim and the challenges of the motion, her participation was appropriate and duly limited to three hours. I do not agree that Paragon’s use of multiple levels of counsel was aimed at increasing costs. On the contrary, delegation to juniors usually reduces costs. I also disagree that Paragon’s counsel should have provided a detailed bill of costs. Such bills are only required on final disposition of the action (Rule 57.01(5) of the Rules of Civil Procedure). Costs outline give exactly that – an outline of work done, time spent and the billing rate of counsel on the various scales (partial indemnity, substantial indemnity, and actual fees billed). Fixing costs of a motion is less a forensic analysis and more a broad exercise of discretion guided by the factors in Rule 57.01 of the Rules of Civil Procedure, all relevant circumstances of the parties and the motion, the reasonableness of the fees claimed, and the justice of any order.

The importance of the issues

[8] Ms. Rebello seeks $50 million in total damages. Her claim also impugns the reputations of Paragon Security and its Officers Crabb and Reza. The claim is serious to all parties. The Paragon Defendants obtained security for costs that they may incur up to the end of discovery. This is an important protection for defendants embroiled in what may be a frivolous and vexatious action.

[9] The motion also addressed the interplay between rules 2.1.01 and 56.01(1)(e) of the Rules of Civil Procedure insofar as both rules consider the frivolousness and vexatiousness of a proceeding. It appears that there was no judicial ruling on this point prior to Paragon’s motion. I concluded that an action that is not frivolous and vexatious for the purposes of r.2.1.01 may still be frivolous and vexatious for the purpose of ordering security for costs (Rebello v. Paragon Security et al., 2020 ONSC 2303).

The complexity of the proceeding

[10] Security for costs motions are routine. However, obtaining an order against an individual plaintiff is more onerous than obtaining one against a corporate one. I appreciate that counsel would have spent additional time researching the jurisprudence.

The conduct of the parties that tended to lengthen the proceeding

[11] As noted in paragraph 16 of the main security for costs decision, I find that Ms. Rebello’s conduct tended to lengthen the proceeding. The Paragon Defendants and counsel were faced with, and continue to be faced with, repeated and unfounded allegations of misconduct, with reports to various authorities. Even after I adjourned the December 19th motion date to January 27, 2020, counsel had to prepare and participate in multiple attendances in CPC court to address collateral attacks on the order. At the outset of the January 27, 2020 hearing, Ms. Rebello again sought to adjourn the motion in any way she could by bringing a recusal motion, providing a copy of human rights complaint, continuing to allege counsel misconduct and arguing that her appeal the adjournment decision to the Divisional Court required me to adjourn the motion until that court rendered its decision. The court, its staff and counsel waited for almost two hours to allow Ms. Rebello to confirm that she had indeed filed the recusal motion and the notice of appeal to the Divisional Court. Ultimately, she had not filed either.

[12] In my view, Ms. Rebello’s obstructive conduct from the inception of this motion warrants an award of substantial indemnity costs against her. The Paragon Defendants seek $14,037.71. Offsetting the $2,000 in costs awarded to Ms. Rebello, the Paragon Defendants are entitled to $12,037.71 in substantial indemnity costs.

Disposition:

[13] For the foregoing reasons, I order Ms. Rebello to pay the Paragon Defendants the amount of $12,037.71 in substantial indemnity costs payable within 60 days of today’s date.

[14] If the Paragon Defendants wish to have a signed order, they may send in a draft to Christine.Meditskos@ontario.ca with a copy to Ms. Rebello. Ms. Meditskos will not entertain any other emails from the parties with respect to this motion or costs decision.

Original signed Master Sugunasiri Date: June 4, 2020