cobourg COURT FILE NO.: 111/11
DATE: 20121001
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
EMILIUS MARGARETA MARCUS MENNES (aka Emile M.M. Mennes)
Respondent
COUNSEL:
Ms. Ayesha Laldin, Counsel for the Applicant
Mr. Emilius Mennes, self represented
HEARD: February 10 and March 12, 2012
JUDGMENT RENDERED : July 03, 2012
H.K. O'Connell J.
C O S T S E N D O R S E M E N T
[ 1 ] On July 03, 2012 I released my judgment declaring the respondent Emilius Margareta Marcus Mennes, a.k.a Emile M.M. Mennes, to be a vexatious litigant, pursuant to section 140 of the Courts of Justice Act R.S.O. 1990, c. C.43 (CJA).
[ 2 ] I asked the parties for cost submissions.
[ 3 ] The Crown obliged with its submissions dated July 31, 2012 in the form of materials entitled Applicant's Costs Submissions and Bill of Costs.
[ 4 ] Mr. Mennes was duly served with the Crown's materials. Mr. Mennes responded to those submissions in a letter dated August 07, 2012.
Position of the Crown
[ 5 ] The Crown references rule 57.01(1) of the Rules of Civil Procedure . The Crown notes that since 2003 Mr. Mennes has litigated in the Superior Court of Justice "with impunity". After 9 years of litigation the Crown had "no other option but to bring this application to stop his persistent wastage of public funds."
[ 6 ] The Crown concedes that the application did not raise important or complex issues. The Crown says a significant amount of time was required to prepare the application record, inclusive of extensive searches of court records to retrieve documents that Mr. Mennes has prepared over the years.
[ 7 ] The Crown states that it "had to review the voluminous legal documents by Mr. Mennes to construct an accurate litigation history for the affidavit sworn by Glynis Evans."
[ 8 ] I note here that Ms. Evans, a Crown counsel, prepared the affidavit which was a chronological history of Mr. Mennes' prior litigation. The succinctness of that affidavit was crucial for the court to readily and accurately appreciate the history of Mr. Mennes' very appearances before the Court.
[ 9 ] As I noted in my judgment the affidavit traces in a completely accurate and succinct fashion the proceedings involving Mr. Mennes.
[ 10 ] Crown counsel further notes that despite the nature of Ms. Evans' affidavit, Mr. Mennes questioned the accuracy of the applicant's record at the hearing.
[ 11 ] The Crown argues that during the hearing, Mr. Mennes "took steps that were unnecessary and that lengthened the proceeding."
[ 12 ] The Crown also argues that although the Court granted Mr. Mennes a month adjournment to respond to the Crown's argument with respect to whether he was a vexatious litigant, Mr. Mennes failed to use that time to respond but rather embarked on a letter writing campaign suggesting that I was biased.
[ 13 ] On the return date of the motion Mr. Mennes failed to respond.
[ 14 ] A bill of costs was provided. The Crown seeks $26,916.76 for Pleadings (Including Pre-Production Matters); $2,677.50 for reviewing Mr. Mennes' motion record which was delivered 3 days before the application by the Crown seeking the vexatious litigant order; and $5,394.63 for the two days of the trial of the issue.
[ 15 ] Disbursements of $1,879.36 are sought. All of these cost submissions are inclusive of GST. The total sought is $36,868.25.
Position of Emile Mennes, aka Emilius Margareta Marcus Mennes
[ 16 ] Mr. Mennes position is found in his letter to the Court. I will reproduce that correspondence in full, addressed to the Registrar at the Superior Court at Cobourg, excepting the "addenda" to the letter that has no bearing on the issue of costs.
Dear Registrar:
RE: ATTORNEY GENERAL (CANADA) v. MENNES ,
File No. 111/11
Further to His Honour's judgment "RULING ON VEXATIOUS LITIGANT APPLICATION " dated Tuesday 3 July 2012 in regards to costs submissions at paragraph 78, please transmit a copy of this letter to Mr Justice O'Connell advising the Superior Court of Justice as follows:
I wholly oppose and object to the Crown's bill of costs as a further, extraordinary abuse of process in aggravation of its application opposed in total as a gross abuse of process and of public office.
My appeal against the whole of His Honour's judgment has been filed with the Court of Appeal for Ontario: File No. C55831.
I maintain my position that Mr Justice O'Connell long lost jurisdiction from my first appearance before the Court at Cobourg on Monday the 10 th day of January 2012, onward for all the reasons already stated in my typewritten letter of 14 February A.D. 2012 to His Honour, all of which said reasons are hereby repeated.
This letter is without prejudice to me as to all issues on my appeal.
For His Honour's information and that of the Department of Justice, I will not be abandoning this appeal.
Your most kind attention is acknowledged.
Very truely (sic) yours,
Emile M.M. Mennes Esq.
[ 17 ] Mr. Mennes submissions reduce to his view that the costs submissions of the Crown are "an extraordinary abuse of process in aggravation of its application opposed in total as a gross abuse of process and of public office."
REASONS
[ 18 ] Clearly Mr. Mennes' submissions are devoid of merit. He has failed to address the issue of costs. However erring on the side of generosity, I will take his view as synonymous with a plea that no costs should be awarded.
[ 19 ] I have no hesitation in concurring with the Crown in relation to its claim for recovery of costs on a partial indemnity basis for the headings Motion, Trial, and for disbursements. The costs claimed for the two days of the trial of the issue are exceptionally fair and reasonable.
[ 20 ] The $2,677.50 sought for the review of Mr. Mennes' motion record which was delivered 3 days before the application by the Crown seeking the vexatious litigant order; the $5,394.63 for the two days of the trial of the issue; and the $1,879.36, all inclusive of HST are I find cumulatively fair and reasonable. The total to this point is $9951.49.
[ 21 ] In relation to the Pleadings (Including Pre-Production Matters) I think a fair and reasonable apportionment of costs is $20,000.00. I am guided by the decision in Zesta Engineering Limited v. Cloutier 2002 25577 (ON CA) , [2002] O.J. No. 4495 where the Court of Appeal stated:
We have considered the bills of costs submitted by the appellant. However, we make no specific finding with respect to the amount of time spent or the rates charged by counsel. In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.
[ 22 ] I have discounted from the quantum sought of $26,916.76 some of the amount referenced in particular under the heading of drafting documents etc. I have not done the discounting because of any second guessing of Crown counsel's time but rather in recognition of the need to consider costs on the basis of reasonableness and fairness. [^1]
[ 23 ] It is otherwise self evident in this case that the preparation for the Crown's application was substantial, involved and required extensive review. The 2 boxes of supporting materials and the numbered of indexed items make that clear.
[ 24 ] I also note that the rate for Crown counsel's time is, if anything, relatively modest.
[ 25 ] As a result Mr. Mennes will have 30 days from release of this endorsement to pay these costs, inclusive of disbursements and applicable HST totalling $29,951.49.
The Honourable Mr. Justice H.K. O'Connell
DATE RELEASED: October 01, 2012
[^1]: See Boucher v. Public Accountants Council for the Province of Ontario , 2004 14579 (ON CA) , 71 O.R. (3d) 291 (Ont. C.A.)