Court File and Parties

Court of Appeal for Ontario Date: 20210426 Docket: C67517

Fairburn A.C.J.O., van Rensburg and Huscroft JJ.A.

Between: T.A.W. Plaintiff/Respondent (Appellant)

And: J.C.L. Defendant/Moving Party (Respondent)

Counsel: T.A.W., acting in person Natai Shelsen, for the respondent

Heard: in writing

On appeal from the order of Justice Kevin B. Phillips of the Superior Court of Justice, dated September 6, 2019.

Costs Endorsement

[1] This court issued reasons on March 26, 2021, dismissing the appeal from an order largely striking out the appellant’s pleadings as disclosing no reasonable cause of action, pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] As this was an appeal heard in writing, we invited the parties to file written submissions on costs. We have now received and reviewed those submissions. The respondent seeks costs on a substantial indemnity basis in the amount of $12,004.16. While the appellant acknowledges that the respondent was successful on appeal, he submits that costs should be awarded on a partial indemnity basis in the amount of $8,002.77.

[3] Given the nature and the circumstances of the appeal, the respondent is entitled to her requested substantial indemnity costs.

[4] Costs on a substantial indemnity basis “are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties”: Young v. Young, [1993] 4 S.C.R. 3, at p. 134; Hamilton v. Open Window Bakery Ltd., [2004] 1 S.C.R. 303, at para. 26. Notably, the motion judge awarded costs on a substantial indemnity basis, because the appellant’s statement of claim was “offensive” and constituted a “misogynistic attack” on the respondent. We agree with that observation.

[5] The appellant argues that his appeal to this court did not include any discriminatory reasoning. He also submits that the mere fact of bringing an appeal does not constitute a continuation of the conduct below. We do not accept this position.

[6] Among other things, the appellant’s continuing conduct on appeal includes his reference to the respondent as engaging in a “repeated pattern of deceitful, manipulative and predatory behaviour in her relationships with three other men”. Moreover, as the Supreme Court of Canada indicated in Hamilton, at para. 26, “allegations of fraud and dishonesty are serious and potentially very damaging to those accused of deception.” Here, the appellant attempted to revitalize his claim of fraudulent misrepresentation against the respondent, one that constitutes a continuing unacceptable attack on her integrity and dignity.

[7] In these circumstances, it is entirely appropriate to hold the appellant liable for costs on a substantial indemnity basis: Hamilton, at para. 26.

[8] For the reasons above, we order that the appellant shall pay to the respondent the requested substantial indemnity costs in the amount of $12,004.16.

“Fairburn A.C.J.O.” “K. van Rensburg J.A.” “Grant Huscroft J.A.”