Court File and Parties

Court File No.: CV-11-4493-00
Decision: 20120920
Superior Court of Justice - Ontario

RE: Wayne Ferron, Plaintiff/Respondent

AND:

Joe Willmets(974), Defendant/Moving Party

Before: MILLER, J.

Counsel:
Plaintiff/Respondent Self-Represented

K. Kirkpatrick, for the Defendant/Moving Party

Heard: July 11, 2012

Reasons for Decision

[ 1 ] Joe Willmets moved pursuant to Rule 21.01 of the Rules of Civil Procedure for an order striking out the claim in its entirety with no leave to amend on the basis that it disclosed no reasonable cause of action and is an abuse of process.

[ 2 ] Wayne Ferron took the position that Mr. Willmets had no standing to make the motion as he should have been noted in default for failing to file a Statement of Defence within the requisite time; in the alternative he argued that the motion was not brought promptly pursuant to Rule 21.02. He argued that his avenues of appeal on the criminal proceedings had not been exhausted and that the matter should be adjudicated on its merits.

[ 3 ] I did not find that Joe Willmets was in default and he was not barred from bringing the motion. Further, I found that if he were in default, I would grant him leave, in all of the circumstances, pursuant to Rule 19.02 (1) (b) to bring the motion.

[ 4 ] Despite the communication from Mr. Willmets’ counsel January 6, 2012 to Mr. Ferron urging him to discontinue the lawsuit failing which they would be bringing this motion, counsel for Mr. Willmets did not take steps to bring this motion until on March 23, 2012 counsel for Mr. Willmets wrote to Mr. Ferron providing potential motion dates for the hearing of this motion.

[ 5 ] Rule 21.02 provides that a motion under rule 21.01 shall be made promptly and a failure to do so may be taken into account by the court in awarding costs.

[ 6 ] I did not find the defendant’s failure to bring the motion promptly was a bar to bringing the motion but might properly be considered by the court in awarding costs.

[ 7 ] I found that even if Mr. Ferron had not yet exhausted his avenues of appeal, his statement of Claim and the Amended Statements of Claim in this action did not disclose any reasonable cause of action against Joe Willmets. On this basis alone I indicated I would grant the Defendant’s motion to strike Mr. Ferron’s pleadings in this action.

[ 8 ] Having compared the portions of the Statements of Claim in the earlier actions which allege wrongdoing on the part of Joe Willmets and finding them to be strikingly similar if not identical, and noting that that Mr. Ferron’s pleadings in those actions were struck for being an abuse of process, I concluded that Mr. Ferron’s pleadings in this action also amounted to an abuse of process.

[ 9 ] On this basis I granted the Defendant’s motion to strike Mr. Ferron’s pleadings in this action without leave to amend.

[ 10 ] At the conclusion of my written decision I indicated that the parties might exchange and file written submissions as to costs by August 13, 2012. I received written costs submissions from the Defendant July 31, 2012. I did not receive any submissions from the Plaintiff.

[ 11 ] Rule 57.01 of the Rules of Civil Procedure provides that in awarding costs a court should consider, amongst other things, the complexity of the proceeding; the importance of the issues; the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; and, whether any step in the proceeding was improper, vexatious or unnecessary as well as any other matter relevant to the question of costs.

[ 12 ] The Defendants seeks costs on a substantial indemnity basis totalling $18,357.84 inclusive of taxes and disbursements. The Defendant seeks substantial indemnity costs on the basis that costs are a tool for the court “to punish and deter unwarranted allegations and egregious conduct, but without discouraging the tenacious pursuit and advancement of serious claims of impropriety in a proper case.” Manning v. Epp [2006] O.J. No. 4239 (ONSCJ) at paragraph 8 .

[ 13 ] The Defendant further relies on Apotex Inc. v. Egis Pharmaceuticals and Novopharm Ltd. 1991 (ON SC) , [1991] O.J. No. 1232 (Ont. G.D.) at paragraphs 7 and 8 :

…the defendants have been brought before the court unwillingly at the behest of the plaintiff, and have at considerable expense mounted a defence through teams of legal counsel and solicitors whose services have thus far succeeded. The reality of commercial life is that to mount a successful defence against a determined plaintiff is costly…

It is the policy of the judicial system to encourage litigants to settle, which generally means that both parties make a sensible business decision to end the dispute and so cut their losses and avoid the risk of failure and further costs… An important objective of the system is thus, by an award of costs (among other things) to discourage harassment of another party by the pursuit of fruitless litigation.

[ 14 ] The Defendant notes his attempt to resolve the issue without the necessity of bringing the motion but that the Plaintiff refused to agree to an order dismissing the action.

[ 15 ] I noted in my decision that Mr. Ferron has persisted in his efforts to seek redress for what he feels has been an injustice. It is clear that he is an intelligent man with an impressive grasp of the rules of civil procedure, but his persistence has become obsessive and a clear attempt to misuse the administration of justice to his own end. I found that he could not be permitted to continue at significant cost to the various defendants and the system of justice itself.

[ 16 ] To this end costs on a substantial indemnity basis might be justified.

[ 17 ] The Defendant has directed me to the decisions in Abbott v. Reuter-Stokes [1988] O.J. No. 2193 (S.C.O.) and Cunningham v. Moran [2010] O.J. No. 3711 (S.C.J.) in which a claim of impecuniousness did not protect parties liable to pay costs from appropriate cost consequences. While I did not receive costs submissions from Mr. Ferron there was some reference to his impecuniousness during submissions on the motion.

[ 18 ] I am of the view that costs are properly awarded to the Defendant in these circumstances in a quantum that I would hope will serve to deter Mr. Ferron. At the same time I am mindful that there is some indication that Mr. Ferron is impecunious and I expect any award of costs will be difficult for him to meet.

[ 19 ] Taking into consideration my note at the time of my decision that while the Defendant’s failure to bring the motion promptly was not a bar to bringing the motion it might properly be considered by the court in awarding costs, I am fixing costs at $5,000 payable by the Plaintiff to the Defendant forthwith.

MILLER J

Date: September 20, 2012