Court of Appeal for Ontario

Date: 2025-07-09
Docket: M56080 (COA-25-CV-0275)
Judge: David M. Paciocco

Between:
Gary Curtis and Tanya Rebello
Applicants (Appellants/Responding Parties)

and

Toronto Police Service Board
Respondent (Respondent/Moving Party)

Appearances:
Cara Davies and Matthew Cornett, for the moving party
Gary Curtis and Tanya Rebello, acting in person

Heard: July 4, 2025

Endorsement

Background

[1] This is a motion for costs brought by the Toronto Police Service Board arising from its response to an appeal brought by Gary Curtis and Tanya Rebello from a decision of Akbarali J., dated February 14, 2025. In the decision under appeal, the judge dismissed an application initiated by Mr. Curtis and Ms. Rebello because it was duplicative of multiple actions that they had commenced and was therefore an abuse of process.

The Notice of Appeal from this decision was brought on March 14, 2025, and was twice amended. The appeal was then perfected. The responding materials from the Toronto Police Service Board were due by June 9, 2025. On June 6, 2025, at 12:21 p.m., those materials were served on Mr. Curtis and Ms. Rebello. The Toronto Police Service Board attempted to file its responding materials with the court at 1:31 p.m., but the attachment was too large and failed. At 1:40 p.m., Mr. Curtis and Ms. Rebello served and, at 1:42 p.m., attempted to file a Notice of Abandonment without costs which was received by the Registrar. Nine minutes later, at 1:51 p.m., the respondent’s materials were successfully filed. At 4:01 p.m., the Registrar notified Mr. Curtis that the Notice of Abandonment without costs was not accepted because the Toronto Police Service Board had served its responding materials before the Notice of Abandonment without costs was served and was seeking costs.

The Costs Motion

[2] That costs motion was scheduled before me for July 4, 2025, in writing. Mr. Curtis, on his behalf and on behalf of Ms. Rebello, sought an adjournment to cross-examine the Toronto Police Service Board’s affiant on this motion, secure transcripts, and bring a cross-motion for costs. On June 26, 2025, I denied the adjournment request, but granted Mr. Curtis and Ms. Rebello the right to attend the hearing and make oral submissions relating to the costs claimed by the Toronto Police Service Board. They were invited to provide responding submissions in writing, not to exceed 3 pages. They filed a factum and responding motion materials well exceeding that limit addressing both the entitlement to and quantum of costs.

Recusal Request

[3] At the commencement of his oral submissions, Mr. Curtis asked me to recuse myself because he and Ms. Rebello were prejudiced by my ruling denying them an adjournment and the right to cross-examine, and because of my participation on a panel striking a panel motion initiated by Tanya Rebello, pursuant to r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194: Rebello v. Ontario, 2025 ONCA 127. He also raised concerns about my reliance in denying the adjournment request on their “history of misusing the litigation system in a fashion that bears the hallmarks of vexatious litigation.” He claims that this finding was prejudicial to them.

I denied the recusal motion. In my view, neither my ruling nor my prior involvement in one of the r. 2.1 decisions involving Ms. Rebello would cause a reasonable person, invested with full knowledge of the circumstances said to give rise to the bias, to perceive an apprehension of bias. As for the finding that I made relating to Mr. Curtis and Ms. Rebello’s history of abusing the litigation system, that history is well documented in material referenced in the Toronto Police Service Board’s motion factum, which includes 41 reported decisions involving Ms. Rebello and 25 reported decisions involving Mr. Curtis.

Submissions on Costs

[4] Mr. Curtis argues that the Toronto Police Service Board is not entitled to a costs award because its responding materials were not filed until after the Notice of Abandonment without costs was filed; that he and Ms. Rebello had advised the Toronto Police Service Board in advance that this appeal was going to be abandoned; and that the responding compendium is deficient and should not have been filed.

[5] I do not accept these submissions and I am allowing the costs motion brought by the Toronto Police Service Board. I find that they are entitled to costs for the legal work they did preparing for the appeal that Mr. Curtis and Ms. Rebello initiated, perfected, and only abandoned after being served with responding material. The Registrar authorized the Toronto Police Service Board to bring a costs motion relating to the abandoned appeal because it had served Mr. Curtis and Ms. Rebello with its responding materials before, and filed these documents minutes after, Mr. Curtis and Ms. Rebello served and filed their Notice of Abandonment without costs. I need not decide whether, in these circumstances, the Toronto Police Service Board filed a response to the appeal within the meaning of r. 61.14(4), because that rule provides me with discretion to order costs to the respondent when an appeal has been abandoned even if the respondent filed no response beforehand. This is an appropriate case for exercising my discretion under r. 61.14(4) to order costs in any event, and I do so.

[6] Moreover, I am not persuaded that the Toronto Police Service Board was notified in advance that the appeal would be abandoned. The evidence does not support this claim. In any event, the timeline that the Toronto Police Service Board had for filing its response was about to expire in three days. It was prudent and appropriate for the Board to continue undertaking legal work to defend the appeal even if an abandonment had been promised. Finally, the deficiencies Mr. Curtis and Ms. Rebello allege in some of the Toronto Police Service Board documents that have been filed are immaterial. Costs are payable for legal work undertaken, not for successfully filing all appeal documents.

Quantum of Costs

[7] Mr. Curtis challenges the $19,365.37 claim that is made for costs, including disbursements and HST, arguing that this amount is objectively unreasonable, unfair, and disproportionate. He submits that the bill of costs includes duplicative and excessive legal work; the partial indemnity rate of $375.00 per hour is excessive; this amount exceeds Mr. Cornett’s actual hourly rate; Mr. Cornett’s hours should not have been included since he was not on this file; counsel are salaried lawyers who earn no more than $100 per hour; and the work could have been done in 3 to 5 hours by a single junior lawyer. He contends that no dockets were provided for the 10 hours working on this motion and the work was not verified by affidavit.

[8] I reject these submissions, as well. The materials before me are sufficient for assessing costs, and certainly in keeping with what is ordinarily filed. I see nothing unreasonable in the assignment of legal work. This matter had a long and complex history, and litigation with Mr. Curtis and Ms. Rebello is difficult and time-consuming. It was entirely appropriate for the Toronto Police Service Board to take a “pull out the stops” approach to uphold the dismissal of the application in the face of Mr. Curtis’ and Ms. Rebello’s appeal. The amounts claimed are reasonable and proportionate to the nature of the work done and the experience of the lawyers, and they are supported by the record. I am awarding costs to the Toronto Police Service Board in the amount of $19,365.37 inclusive of applicable taxes and disbursements.

“David M. Paciocco J.A.”