Court File and Parties
CITATION: Fuhgeh v. Stewart, 2021 ONSC 3907
DIVISIONAL COURT FILE NO.: DC-20-419
DATE: 2021/05/31
SUPERIOR COURT OF JUSTICE – DIVISIONAL COURT – ONTARIO
RE: Kimberley Melissa Stewart, Respondent AND William Ndze Fuhgeh, Appellant
AND RE: Marie Marielle Edith Bernard, Respondent AND William Ndze Fuhgeh, Appellant AND Marc Coderre, Marie-Hélène Godbout, Intervenors
BEFORE: Ryan Bell J.
HEARD at Ottawa: In writing
Costs Endorsement
[1] Ms. Bernard and the Intervenors made requests under Rule 2.1.01[^1] that Mr. Fuhgeh’s appeal proceedings from the orders of Shelston J. dated June 17 and August 10, 2020 be dismissed. On April 26, 2021, I dismissed Mr. Fuhgeh’s appeal proceedings and invited submissions on costs[^2]. I have received costs submissions from Ms. Bernard and the Intervenors, and responding submissions from Mr. Fuhgeh.
[2] Ms. Bernard requests costs in the amount of $537.50.
[3] The Intervenors seek their full indemnity costs in the amount of $5,600.28.
[4] In response, Mr. Fuhgeh makes five points: (i) that I did not have jurisdiction to dismiss his appeal proceedings and, accordingly, do not have jurisdiction to make an order as to costs; (ii) that because Ms. Bernard and the Intervenors did not seek costs in their requests to Divisional Court under r. 2.1.01(6), no costs should be awarded; (iii) that Ms. Bernard and the Intervenors are not entitled to costs because they failed to provide proof of payment of any amounts for which they seek reimbursement; (iv) that the scale of costs requested by the Intervenors – full indemnity – is not warranted; and (v) the quantum of costs claimed by the Intervenors is excessive.
[5] In his submissions under Rule 2.1, Mr. Fuhgeh raised as a preliminary issue that the proceeding was a nullity for want of jurisdiction. At para. 22 of my endorsement, I rejected Mr. Fuhgeh’s submission.
[6] I do not agree with Mr. Fuhgeh’s submission that because Ms. Bernard and the Intervenors did not seek costs in their requests under Rule 2.1.01(6), no order as to costs should be made. Although Rule 2.1 proceedings are often decided without costs, costs are appropriate where the court views the proceeding as vexatious and costs to be appropriate to try to “bring home to [the appellant] that there are legal consequences to taking legal proceedings and forcing the respondents to incur costs frivolously or vexatiously”: Joshi v. Her Majesty the Queen in Right of Ontario, 2019 ONSC 2970, at paras. 3-6.
[7] Costs are an important tool in the hands of the court to influence the way parties conduct themselves and to prevent abuse of the court’s process: 1465778 Ontario Inc. v. 1122077 Ontario Ltd., 2006 ONCA 35819, at para. 26.
[8] I found Mr. Fuhgeh’s appeal proceedings to be abusive and a clear attempt to relitigate matters that were determined by the court years ago. I also found that Mr. Fuhgeh’s appeal proceedings displayed the hallmarks of vexatious proceedings. In my view, costs are appropriate to try to bring home to Mr. Fuhgeh that there are consequences in attempting to re-litigate issues that have already been decided and forcing Ms. Bernard and the Intervenors to incur costs vexatiously.
[9] The Intervenors have provided a bill of costs as to the fees claimed. The lawyer’s certificate signed by Ms. Sack certifies “that the hours claimed were spent, the rates shown are correct, and that each disbursement has been incurred.” For clarity, there are no disbursements claimed by the Intervenors. Their documentation is satisfactory and complete.
[10] Ms. Bernard’s documentation is also satisfactory. She has provided a table in which she describes each event and the total time required to address each event. Ms. Bernard does not seek reimbursement for any disbursements.
[11] As for the appropriate scale of costs, in Joshi, Myers J. awarded the successful party its costs on a partial indemnity basis but added, “[h]ad the respondent asked, this may well have been a case for enhanced costs due to the applicant’s repeated abuse of the court’s processes.”
[12] The Intervenors request full indemnity costs. In Net Connect Installation Inc. v. Mobile Zone Inc., 2017 ONCA 766, the Court of Appeal for Ontario, at para. 8, cautioned:
There is a significant and important distinction between full indemnity costs and substantial indemnity costs. An award of costs on an elevated scale is justified in only very narrow circumstances – where an offer to settle is engaged or where the losing party has engaged in behaviour worthy of sanction: Davies v. Clarington (Municipality) [citations omitted] at para. 28. Substantial indemnity costs is the elevated scale of costs normally resorted to when the court wishes to express its disapproval of the conduct of a party to the litigation. It follows that conduct worthy of sanction would have to be especially egregious to justify the highest scale of full indemnity costs.
[13] I have no hesitation in concluding that this is one of the rare cases in which costs should be awarded on a full indemnity basis. Mr. Fuhgeh engaged in litigation behaviour that was both abusive and vexatious. He made scandalous and outrageous attacks on the integrity of Shelston J., including baseless allegations of overt discrimination, antipathy, and hatred. Reckless attacks on the integrity of judicial officers must be recognized as conduct requiring chastisement and deterrence: Bérubé v. Lajoie, 2010 ONSC 1677, at para. 45. Mr. Fuhgeh’s conduct was “especially egregious”; the highest scale of full indemnity costs is warranted.
[14] A self-represented lay litigant should receive only a “moderate” or “reasonable” allowance for the loss of time devoted to preparing and presenting the legal proceeding: Fong v. Chan, 1999 ONCA 2052, at para. 26. In my view, the hourly allowance of $50 proposed by Ms. Bernard is very reasonable as is her estimated loss of time of 10.75 hours. The time involved includes preparation for and participation in the November 20, 2020 case conference before Labrosse J. Given the number of orders challenged by Mr. Fuhgeh, it was to be expected that some time would be taken to prepare responding submissions. Mr. Fuhgeh shall pay Ms. Bernard forthwith costs fixed at $537.50.
[15] For the reasons I have already given, the Intervenors are entitled to their full indemnity costs. The rates charged by counsel are reasonable. The total time spent by senior and junior counsel is more than might be expected given the attenuated process contemplated by Rule 2.1. However, having regard to all the circumstances in this case, including the number of orders challenged by Mr. Fuhgeh, counsel’s attendance at the case conference, Mr. Fuhgeh’s attack on counsel for the Intervenors in his reply submissions, and his request that counsel be disqualified, I find that the time spent by counsel was reasonable. Mr. Fuhgeh shall pay the Intervenors forthwith costs fixed at $5,600.28, inclusive of HST.
[16] The Intervenors request an order that Mr. Fuhgeh shall not be permitted to take any further steps in the proceedings, including a motion to set aside or appeal my April 26, 2021 order, until the costs award to the Intervenors is paid. In my view, such an order is not available to the court under Rule 2.1.01. Rule 2.1.02(3), which deals with an order to stay or dismiss a motion that appears on its face to be frivolous, vexatious, or otherwise an abuse of the process of the court, provides that the court may also make an order under Rule 37.16 prohibiting the moving party from making further motions in a proceeding without leave. There is no comparable provision under Rule 2.1.01. Mr. Fuhgeh’s appeal proceedings have been dismissed.
Ryan Bell J.
Date: May 31, 2021
CITATION: Fuhgeh v. Stewart, 2021 ONSC 3907
DIVISIONAL COURT FILE NO.: DC-20-419
DATE: 2021/05/31
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
RE: Kimberley Melissa Stewart, Respondent AND William Ndze Fuhgeh, Appellant
AND RE: Marie Marielle Edith Bernard, Respondent AND William Ndze Fuhgeh, Appellant AND Marc Coderre, Marie-Hélène Godbout, Intervenors
Costs Endorsement
Ryan Bell J.
Released: May 31, 2021
[^1]: Rules of Civil Procedure, R.R.O. Reg. 194 [^2]: Fuhgeh v. Stewart, 2021 ONSC 3053