ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Joanne St. Lewis
Plaintiff
– and –
Denis Rancourt
Defendant
Richard G. Dearden, for Joanne St. Lewis
Peter K. Doody, for the University of Ottawa
Denis Rancourt, self-represented
HEARD: (By written submissions)
DECISION REGARDING COSTS
(Motion for Leave to Appeal)
R. Smith J.
Positions of Parties
1The Plaintiff seeks costs of $6,999.60 on a partial indemnity basis and $9,267.10 on a substantial indemnity basis for Mr. Rancourt’s unsuccessful Motion for Leave to Appeal Beaudoin J.’s Order dated February 8, 2012.
2The University of Ottawa also seeks costs for its involvement in the Application for Leave to Appeal Beaudoin J.’s Order. The University of Ottawa participated in the Motion for Leave to Appeal and seeks costs on a substantial indemnity basis in the amount of $9,103.62 on the basis that the Motion for Leave to Appeal constituted an abuse of process.
3Mr. Rancourt submits that the issue of extending the open court principle to cross-examinations on affidavits is a novel question, not previously addressed, and that he was supported by the Civil Liberties Association of the National Capital Region. Mr. Rancourt submits that he acted reasonably in bringing the Motion for Leave to Appeal and that costs should not be awarded to the Plaintiff as the purpose for costs is indemnification, which is not applicable because St. Lewis’ costs are being paid by the University of Ottawa. He further argues that awarding costs to both Professor St. Lewis and the University of Ottawa presents the possibility of double recovery. Mr. Rancourt further disputes that any costs should be awarded to the University of Ottawa as it was a non-party participant and in the alternative submits that the costs claimed by St. Lewis and the University are excessive.
Success
4Professor St. Lewis and the University of Ottawa were successful in opposing Mr. Rancourt’s Motion for Leave to Appeal.
Complexity and Importance
5The issues were of average complexity and involved common law doctrines of issue estoppel, collateral attack, abuse of process, open court principle, and natural justice. The issues were important to the Plaintiff in this proceeding as the Defendant sought permission to allow supporters to attend at cross-examinations on affidavits, which would have made the process unworkable.
Unreasonable Conduct of Any Party
6I decided that the principles of res judicata, abuse of process and collateral attack all applied to prevent Mr. Rancourt from appealing the decision of Beaudoin J. because the issue had been previously decided by Master MacLeod and his decision was not appealed. However, I do not find that he acted unreasonably by seeking leave to appeal. While he was unsuccessful, the issues raised involved unusual circumstances including the authority of a case management Judge to prevent a party from bringing a motion on an issue that had previously been decided by a Master.
Scale of Costs and Offers to Settle
7The Applicants seek costs on a substantial indemnity basis based on my finding of abuse of process. The context of the finding of abuse of process was more related to the res judicata and collateral attack principles than that Mr. Rancourt’s action was totally unreasonable, vexatious or without any possible merit. As a result costs will be awarded on a partial indemnity basis.
Hourly Rates, Time Spent and Proportionality
8Mr. Rancourt does not contest the hourly rates sought by two very experienced and competent counsel in the city of Ottawa, however he objects to paying two sets of costs and he submits that the costs sought are excessive.
9He further submits that the costs exceed what an unsuccessful party would reasonably expect to pay. It is difficult to assess what an unsuccessful party would reasonably expect to pay where Mr. Rancourt is a self-represented individual. However, Mr. Rancourt was aware that Professor St. Lewis and the University were represented by two senior counsel from large firms in the city of Ottawa. Mr. Rancourt also raised a number of legal issues in his application for leave to appeal, and the motion for leave took a half-day. I find that Mr. Rancourt as the unsuccessful party would reasonably expect to pay $5,000.00 of costs.
10The University of Ottawa would be affected by any Order made in the champerty motion and therefore based on rule 37.07(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the University had a right to file material and respond to the Notice of Motion. The University had the same right to attend and oppose the Motion for Leave to Appeal Beaudoin J.’s order. However, I find there was some duplication of costs and as a result the University will be awarded a lesser amount of costs than those awarded to the Plaintiff.
Disposition
11Having considered all of the above factors, Mr. Rancourt is ordered to pay costs to the Plaintiff St. Lewis in the amount of $5,500.00 plus HST plus disbursements inclusive of HST of $197.10, and costs of $3,500.00 plus HST plus disbursements inclusive of HST of $189.84 to the University.
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 Leave to Appeal)
R. Smith J.
Released: June 6, 2012