ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-51657
DATE: 2012-06-06

BETWEEN:

Joanne St. Lewis Plaintiff – and – Denis Rancourt Defendant Joseph Hickey Moving Party

Richard G. Dearden, for Joanne St. Lewis
Peter K. Doody, for the University of Ottawa

Denis Rancourt, self-represented
Joseph Hickey (Party seeking Intervener Status), self-represented

HEARD: (By written submissions)

DECISION REGARDING COSTS

(Motion for INTERVENER STATUS OF JOSEPH HICKEY)

R. Smith J.

Positions of Parties

[ 1 ] The Plaintiff Joanne St. Lewis (“St. Lewis”) seeks costs on a substantial indemnity basis in the amount of $3,876.95. Alternatively she seeks costs on a partial indemnity basis in the amount of $2,911.95. St. Lewis seeks costs on the higher scale largely due to conduct of Mr. Hickey subsequent to the motion where it is alleged he attempted to intimidate, harass and humiliate St. Lewis in order to force her to withdraw her claim for costs against him.

[ 2 ] Following the motion Mr. Hickey wrote directly to St. Lewis and copied over 70 other people and did so after being warned that the matter was sub judice and not to contact St. Lewis directly.

[ 3 ] The University of Ottawa also seeks costs against Mr. Hickey on a substantial indemnity scale due to his egregious conduct of attacking the persons involved in the proceeding following the hearing of his motion to intervene. Mr. Hickey accused counsel for the University of acting unethically and copied that exchange to 86 other email addresses including the President of the University of Ottawa and the Dean of the Faculty of Common Law at the University of Ottawa.

[ 4 ] Mr. Hickey submits that costs should not be awarded in the amount claimed because he is an impecunious student and as the losing party he did not reasonably expect to have to pay the amounts of costs sought.

Success

[ 5 ] In this case Mr. Hickey was unsuccessful in his motion to be added as a public interest intervener. St. Lewis and the University of Ottawa were completely successful in opposing Mr. Hickey’s Motion for Intervener Status.

Complexity and Importance

[ 6 ] The issues involved in obtaining intervener status are somewhat complex and were important to the parties.

Unreasonable Conduct of Any Party

[ 7 ] Professor St. Lewis and the University of Ottawa do not complain about the conduct of Mr. Hickey at the motion where he sought intervener status. Rather, the conduct complained of is a series of personal attacks by email on counsel for the University in an attempt to have the University abandon its request for costs and also his attempt to intimidate and embarrass Professor St. Lewis by sending an email to many other individuals asking her to withdraw her claim for costs against Mr. Hickey.

[ 8 ] Copies of the emails sent by Mr. Hickey are attached to both the University of Ottawa’s Reply Submissions and to St. Lewis’ Reply Submissions. While Mr. Hickey is a student and is a self-represented party, his conduct in writing to the Plaintiff directly, when he was aware that she was represented by counsel, by copying the email to approximately 70 other individuals, and his conduct of accusing counsel for the University of unethical behaviour is unreasonable and inappropriate conduct.

[ 9 ] Mr. Hickey’s conduct in pursuing this course of action following his unsuccessful motion to be added as an intervener is unreasonable conduct which will increase the amount of costs that would otherwise have been ordered. I further find that counsel for the University acted reasonably and fairly throughout the motion and that Mr. Hickey’s allegations that counsel’s conduct raised ethical questions was completely unfounded.

Scale of Costs and Offers to Settle

[ 10 ] Costs would ordinarily be ordered on a partial indemnity scale. In order to obtain an order for costs on a substantial indemnity basis a party must be found to have engaged in scandalous, vexatious or outrageous conduct, or to have obtained a less favourable result than a Rule 49 offer to settle. Mr. Hickey submits that the normal rules regarding costs should not apply because he alleges that he is an impecunious student.

[ 11 ] In Myers v. Toronto (Metropolitan) Police Force , 1995 11086 (ON SCDC) , [1995] O.J. No. 1321, at paras. 19 to 22 , the Divisional Court decided that it was reasonable for a Court on fixing costs to refuse to take into account the alleged impecuniosity of a party, as there is no way to determine whether a party is in fact impecunious, and also to avoid a situation in which litigants without means can ignore the rules of court with impunity.

[ 12 ] Mr. Hickey is a university student completing his Master’s degree at the University of Ottawa and was elected as a member to the University of Ottawa Senate during the past year, and he publishes a blog. I take judicial notice that there is a very high probability that university students do not earn substantial sums of money while they are students but this factor is given very little weight in the circumstances.

[ 13 ] In the hearing before me Mr. Hickey argued his motion in a very reasonable and polite fashion; however, he was also aware that the two senior counsel were representing both St. Lewis and the University of Ottawa, and he had been warned in writing by counsel for St. Lewis that costs would be sought against him if he proceeded with his motion to intervene. He accepted the risk that he would be ordered to pay legal costs if he were not successful.

Hourly Rates, Time Spent, Proportionality and Indemnity

[ 14 ] Mr. Hickey does not challenge the hourly rates for experienced senior counsel or the time spent, or that the issue was complicated as the motion lasted for the whole morning, however he submits that the amount claimed is excessive.

Amount the Unsuccessful Party Would Reasonably Expect to Pay

[ 15 ] Mr. Hickey was specifically warned that, if he did not withdraw his motion for leave to intervene in Mr. Rancourt’s private lawsuit with Professor St. Lewis, costs would be claimed against him in the proceeding. Notwithstanding the written notice given to him, he decided to proceed knowing the risk that costs would be awarded.

[ 16 ] I give some allowance for the fact that Mr. Hickey is a student, is self-represented, and may not have been aware of the costs that he would incur if he were to be unsuccessful in his motion.

[ 17 ] Mr. Hickey did not seek intervener status on behalf of a recognized group and did not have a special interest to represent. He ultimately agreed during the hearing that the public interest was the same as the interest represented by the press which he sought to represent. Mr. Hickey’s motivation was, as he stated in his Application, to support Mr. Rancourt’s open court motion which had been denied by Beaudoin J. and Master MacLeod. Mr. Hickey’s actions have caused St. Lewis and the University to incur additional legal costs to respond to his motion and he must bear some costs consequences for his actions.

Disposition

[ 18 ] I see no reason to depart from the general rule that costs should follow the event, and considering all of the above factors I order Mr. Hickey to pay costs to Professor St. Lewis in the amount of $2,000.00 plus HST plus disbursements of $16.95 inclusive of HST. In addition I order Mr. Hickey to pay costs in the amount of $1,000.00 plus HST to the University of Ottawa.

R. Smith J.

Released: June 6, 2012

COURT FILE NO.: 11-51657
DATE: 2012-06-06

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Joanne St. Lewis Plaintiff – and – Denis Rancourt Defendant DECISION REGARDING COSTS (Motion for INTERVENER STATUS OF JOSEPH HICKEY) R. Smith J.

Released: June 6, 2012