Court File and Parties

Barrie Court File No.: CV-23-414 Date: 2024-04-17 Ontario Superior Court of Justice

Between: NDRIVE, NAVIGATION SYSTEMS S.A., Applicant – and – SI ZHOU (a.k.a. SI (SILAS) ZHOU, a.k.a. SILAS ZHOU), Respondent

Counsel: Ryder Gilliland and Corey Groper, for the Applicant Self-Represented, for the Respondent

Heard: In Writing

Costs Endorsement (Vexatious Litigant Application)

McCarthy, J.

[1] The Applicant was successful in its application to have the Respondent found to be vexatious litigant. It now seeks its costs of the application on a full indemnity basis in the amount of $60,888.36 or alternatively, substantial indemnity costs in the amount of $54,477.02 as detailed in its costs outline filed along with its written submissions on costs.

[2] The Respondent, in addition to his oft repeated suggestion that the Applicant lacks legal standing and that its representatives have a history of being untruthful, asks that a decision on costs be deferred or stayed until the disposition of the appeal from this court’s vexatious litigant finding. There is no motion for a stay of proceedings before me.

[3] I am not prepared to defer my decision on costs. There is no reason to do so. Should the appellate court overturn or vary my order declaring the Respondent to be a vexatious litigant, it will give the appropriate order in respect of costs awarded in this court.

[4] Logic would dictate that a success on a vexatious litigant application should attract an award of costs on at least a substantial, and possibly on a full indemnity basis in favour of the moving party.

[5] Indeed, one of the criteria found in the governing rule on costs is whether any step in the proceeding was “improper or vexatious”: see rule 57.01(f)(ii) of the Rules of Civil Procedure.

[6] I adopt the rationale for awarding full indemnity costs in response to vexatious litigant applications described by Leach J in Crich Holdings and Buildings Ltd v Becky, 2016 ONSC 1652 at paras. 25-28:

…while I generally am reluctant to award costs on a full rather than substantial indemnity basis, as encouraging an expectation that full cost recovery tends to undermine the ‘reality check’ incentives that otherwise play a valuable role in all litigation, in my view a full indemnity award is merited in this case.

In that regard, I am mindful of the reality that those who bring a successful vexatious litigant application effectively do so not only for the benefit of themselves, but also for the benefit of the court and other litigants. In my view, where there is good reason to bring such an application, (as confirmed by the application’s success), a party performing that service generally should not be obliged to absorb a significant measure of the associated expenses without reimbursement from those who made the application necessary.

[7] My reasons on the application should leave no doubt that the Respondent’s actions (or should I say antics) made the application necessary. Those same reasons should make it abundantly clear that the Applicant was entirely successful in the relief it was seeking. The court rejected the Respondent’s position on the Application much in the same way as it rejected the Respondent’s various positions throughout the tortuous litigation which has now spanned nearly 4 years.

[8] The application was of great importance to the Applicant who has been forced to return to court on multiple occasions to respond to and fend off multiple frivolous and abusive proceedings launched by the Respondent.

[9] The application was modestly complex. It required a review and summary of three years of proceedings and hundreds of pages of materials filed along the way. The test for finding a person to be a vexatious litigant is an onerous one. Counsel for the Applicant is to be commended for the professional and thorough presentation it made on the subject.

[10] The principle of proportionality would not be offended by an award of full indemnity costs. A vexatious litigant application carries with it important consequences for all affected parties.

[11] Turning to the principal of indemnity, I find that full indemnity costs are appropriate in order to make the Applicant whole. I see no reason why it should be saddled with any residual expense because of obtaining the relief it sought, which went beyond issues of contract, trusts and fiduciary duties. The Applicant was entitled to expect that the court orders it obtained would, subject to appeal, be respected; that it would not have to deal with collateral attacks on those orders and that its chosen legal representatives would not be the subject of personal accusations. A vexatious litigant application was its only practical recourse.

[12] Mr Groper, a 2010 call, was charged with carriage and prosecution of the motion. It was entirely appropriate for a lawyer of his intermediate to advanced experience to prepare and present the motion assisted by a law clerk. His hourly rate is entirely commensurate with both his level of experience and the value of his services.

[13] The claimed disbursements of $774.98 are modest and reasonable in light of the materials prepared and filed.

[14] For the above reasons, I find that costs of the application should be awarded to the Applicant on a full indemnity basis for the amount claimed, $60,888.36 which sum is inclusive of HST and disbursements.

[15] There shall be an order to go accordingly. The Applicant is at liberty to file with the court a proposed draft order without seeking the approval as to form and content of the Respondent.

McCarthy J. Released: April 17, 2024