COURT FILE AND PARTIES

COURT FILE NO.: CV-11-0642
DATE: 20121001
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ROD CATFORD, Plaintiff

AND:

PETER CATFORD, ELLEN CATFORD, THE COUNTY OF SIMCOE and JAMIE MORAN, Defendants

BEFORE: THE HON. MR. JUSTICE S.E. HEALEY

COUNSEL:
The Plaintiff, Self-Represented
K. Hamilton, for the Defendants, Peter Catford and Ellen Catford
P. Krysiak, for the Defendants, The County of Simcoe and Jamie Moran

HEARD: By written submissions

COSTS ENDORSEMENT

[ 1 ] Pursuant to my endorsement dated July 13, 2012, the parties have made written submissions on costs with regard to:

(i) The summary judgment motion brought by the defendants Peter and Ellen Catford (the “defendants Catford”) and heard on July 13, 2012;

(ii) The motions of the plaintiff originally returnable July 3, 2012 and adjourned to July 9, 2012;

(iii) The quantum of costs ordered for December 6, 2011 and December 13, 2011.

Costs of Summary Judgment Motion by the Defendants Catford

[ 2 ] The motion by these defendants was substantially successful in that only one claim, that of defamation, was permitted to proceed. In his claim the plaintiff sought damages for defamation, intentional infliction of mental suffering, fraud, deceit, conspiracy, intentional interference with economic relations, tortious interference with inheritance rights and breach of fiduciary duty.

[ 3 ] Although the plaintiff has suggested that his case has always been primarily framed in defamation, he has never formally withdrawn the other pleas, which were all dismissed on the motion for summary judgment as being untenable pleas due to a lack of evidence. Although his stated withdrawal of his claims (other than defamation and intentional infliction of emotional harm) was addressed in his factum, and his position repeated at the outset of argument, the announcement of that concession at the last moment did nothing to alleviate the financial burden incurred by the defendants in having to bring such a motion and in having to respond to all claims made in the pleading.

[ 4 ] Rule 57.01(1) sets out the factors that may be considered by a court in exercising its discretion to award costs. Of particular relevance in this case are subrules (e), (f) and (g). Pertinent to these subsections is the fact that the statement of claim, while not sufficiently in contravention of the rules to be struck, was, on another motion found to be “inconcise, lacking particularity, and most importantly, does not specifically plead the torts alleged and leaves the reader to read between the lines”. The plaintiff criticizes the opposing parties for allegedly not attempting to narrow the issues. However, that pleading, defining the issues to be litigated in such expansive and vague terms, invited the defendants to bring such a motion. It was imperative that any pleas that could not survive the hard look of a motion for summary judgment be eliminated from the equation at the earliest stage of the proceeding. As such the bringing of such motion by the defendants Catford was completely reasonable.

[ 5 ] The above conclusion is bolstered by the fact that the plaintiff presented no evidence on the motion that could support a finding that there was a genuine issue requiring a trial on the vast majority of his claim. Accordingly, and this is the most significant factor in awarding costs against the plaintiff he failed to admit what should have admitted. In addition to offering no evidence in support of his claims, the material filed by the plaintiff was verbose, inflammatory, and failed to address the legal issues.

[ 6 ] The plaintiff’s significant problem is that he is unable to view this litigation through any lens of objectivity and yet continues, with brief periods in which counsel were retained, to attempt to represent himself. The mis-steps that he takes as a result should not become the financial burden of the other parties.

[ 7 ] Also under consideration, as outlined in Ms. Hamilton’s submissions, are the unprofessional and personal attacks against her that have been made by the plaintiff throughout this proceeding, and repeated in his costs submissions for this motion. Such inappropriate, direct personal attacks have attracted substantial indemnity costs when put forward by a member of the bar: Baksh v. Sun Media (Toronto) Corp. , 2003 64288 (ON SC) , [2003] O.J. No. 68 (63 O.R.) (3d) 51 (Ont. Master). Again, these allegations are unsupported by objective evidence.

[ 8 ] As this motion has disposed of claims made in the action on a final basis, it is in my view appropriate that the plaintiff’s conduct throughout the proceeding be considered. In addition to the problems outlined above, also considered is the time wasted by the plaintiff in his examination of Peter Catford. The transcript shows that the plaintiff asked irrelevant and argumentative questions during much of that examination, and a second attendance was required only because of the plaintiff’s inability to focus on asking proper questions.

[ 9 ] Also germane is s. 57.01(1)(d) - the importance of the issues. To the moving parties, the success on the summary judgment motion means that:

(i) The issues to be litigated have been curtailed;

(ii) The complexity of the proceeding reduced;

(iii) Discovery time and further productions will be reduced;

(iv) Trial time, if necessary, lessened; and

(v) All of the above reduces the legal fees they will incur.

[ 10 ] Accordingly this was a significant outcome for the moving parties.

[ 11 ] I have reviewed the cost outline of the defendants Catford, which is calculated on a substantial indemnity basis. Given the vexatious manner in which the plaintiff has conducted this litigation, as set out above, I concur that costs should be awarded on this higher scale. However some acknowledgment will be given to the fact that not all of the pleading was struck and the costs will be reduced to a slight degree to acknowledge the plaintiff’s success in defeating the defendants’ motion in respect of his defamation claim. A reduction of $2,500 will be given, attempting to give some proportionality to this surviving claim in relation to the others, and the overall work involved in the motion.

[ 12 ] This court orders that the plaintiff shall pay the defendants Catford their costs of their motion for summary judgment fixed in the amount of $11,839.60 and payable within 30 days.

Costs of the Appearance on July 3, 2012 and July 9, 2012

[ 13 ] The plaintiff served a motion returnable July 3, 2012 seeking the following relief:

(i) The determination of costs of this day July 3, 2012, December 6, 2011, December 13, 2011, February 2, 2012 and for the discovery date December 16, 2011 as it relates to the defendants Peter and Ellen Catford;

(ii) Leave of the court for an order extending the time to cross examine and examine for discovery the defendants Peter Catford and Ellen Catford and setting that date, nunc pro tunc to June 25, 2012;

(iii) Leave of the court for an order setting down the examinations to occur on June 25, 2012 of Peter Catford and Ellen Catford and for specific directions, including that costs be awarded against the two solicitors Hamilton and Arbesman personally in accordance with Rule 34.14;

(iv) That the Honourable Madam Justice S. Healey recuse herself from hearing this motion and any further matter involved in this case;

(v) That all dates and directions of February 2, 2012 and any other subsequent judicial orders or decisions be vacated and referred to a newly constituted case management court, and in particular, dates for summary judgment motions be set before a newly determined justice of the Ontario Superior Court of Justice, and other than the case management justice selected, if any;

(vi) That a new date for summary judgment by the defendants Catford and the County of Simcoe and Jamie Moran be set before a justice other than the Honourable Madam Justice Healey and other than such case management justice as may by that time have heard matters other than summary judgment;

(vii) That such motions for summary judgment as may be extant now or subsequently moved by the plaintiff shall be heard the same day and remain consolidated and unsevered from each other;

(viii) That the defence of the Catfords be struck forthwith without leave to amend as in accordance with the plaintiff’s motion of December 6, 2011;

(ix) That the summary judgment motion of the Catfords first returned December 6, 2011 be dismissed with costs on a substantial indemnity basis, or in the alternative;

(x) That such portions of the affidavits of Jane Catford and the affidavit of Ellen Catford which represent unnecessary and unreliable hearsay be struck, in particular all the exhibits attached to the affidavit of Ellen Catford;

(xi) That the motion first returnable by the defendants Catford on December 13, 2011 be dismissed with costs on a substantial indemnity basis; and

(xii) Costs of the within motion on a substantial indemnity basis.

[ 14 ] The plaintiff delivered this motion without checking the availability of opposing counsel or the court’s schedule. This was particularly necessary given that this case is being case managed and requires that the case management judge hear all motions. This was made clear to the plaintiff by letter from Senior Regional Justice Brown dated January 31, 2012.

[ 15 ] The plaintiff refused to adjourn. Justice Brown heard the parties on July 3 rd , adjourned the motion to July 9 th and reserved costs to me as the case management judge.

[ 16 ] On July 9 th , costs of July 3 rd were ordered to be paid by the plaintiff to the defendants on a full indemnity basis for the reasons set out in my endorsement of that date.

[ 17 ] The motion was argued on July 9 th . The plaintiff was unsuccessful in obtaining orders:

(i) Dismissing the summary judgment motion of the defendants Catfords;

(ii) Having the summary judgment motions of both parties “remain consolidated and unsevered from the other”;

(iii) Vacating all dates and directions of my order of February 2, 2012;

(iv) That I recuse myself from hearing any motions in the case, and that a new case management judge be appointed;

(v) That the defence of the Catfords be struck;

(vi) That further examinations of Peter and Ellen Catford be scheduled; and

(vii) That portions of the affidavits be struck.

[ 18 ] In respect of his request for costs in his motion, the plaintiff was granted costs of December 6 and 13, 2011 on a partial indemnity basis, to be fixed on July 13, 2012. On that date it was determined that costs submissions and Bills of Costs would be considered in writing.

[ 19 ] This limited success in obtaining costs of the December dates will in no way change the fact that costs of the motion should go to the defendants. There was no reason that the plaintiff needed to bring this motion, particularly given that fixed dates for the hearings of multiple motions had already been set for July 9 and July 13, all full days. Some of the relief requested in the motion returnable July 3 was specifically before the court in the motions to be heard on the later dates. The plaintiff’s behaviour, in light of the order of Brown, J. and my order of February 2, 2012, which set out a timeline and procedure, which he ignored, warrants that costs of the day should be given to the defendants on a full indemnity basis. As noted in the endorsement of July 9, 2012, the motion took from 10:45 a.m. to 3:50 p.m. with a one a quarter-hour lunch break. The defendants were forced to incur legal fees that were totally unnecessary and avoidable. Even though the plaintiff had every right to bring a recusal motion, having lumped it together with the other extensive relief sought on the motion, there is no way to extricate the parties’ respective costs in bringing or responding to that portion of the motion.

[ 20 ] The plaintiff also served a motion for the examination of non-parties returnable July 3, 2012. Brown, J. also adjourned that motion to July 9 th . The non-parties were his niece Erika Catford and his daughter Jane Catford.

[ 21 ] As of July 9, the plaintiff took the position that he was not proceeding with his motion. The motion was accordingly abandoned and these defendants seek costs. Rule 37.09(3) entitles a responding party on whom the motion was served to costs of the motion forthwith, unless the court orders otherwise.

[ 22 ] The defendants will have their costs of the abandoned motion as well. These amounts are nil for the County since their bill of costs was not particularized, and $750 for the defendant Catfords. This latter amount is included in the total awarded to the defendants in paragraph 25 herein.

[ 23 ] Both non-parties retained counsel who were in attendance on July 3 rd . Nothing in this order prevents those non-parties from seeking their costs of the motion should they seek the same, on notice to the plaintiff.

[ 24 ] Having reviewed the Bill of Costs of both the County and defendants Catford I conclude:

(i) The rates, time spent and disbursements are reasonable;

(ii) The amounts are such that they would have to have been within the reasonable contemplation of the plaintiff; and

(iii) The amounts sought, are overall, fair and reasonable.

[ 25 ] This court orders:

(i) The plaintiff shall pay the County its costs of his motions returnable July 3 and heard on July 9, fixed in the amount of $3,400 and payable within 30 days;

(ii) The plaintiff shall pay the defendants Catfords their costs of his motions returnable July 3 and heard on July 9, fixed in the amount of $6,615 and payable within 30 days.

Costs of December 6, 2011 and December 13, 2011

[ 26 ] The rationale for this cost award is set out in my endorsement dated July 9, 2012 at paragraph 8. Having reviewed the Bill of Costs of the plaintiff I conclude:

(i) The rates, time spent and disbursements are reasonable;

(ii) The amounts are such that they would have to have been within the reasonable contemplation of the defendants; and

(iii) The amounts sought, are overall, fair and reasonable.

[ 27 ] This court orders that the defendant County and the defendants Catford shall pay to the plaintiff his costs of those dates in the amount of $3,567.30, divided equally such that each pays $1,783.65, to be set off against costs ordered to be paid by the plaintiff to those parties.

[ 28 ] This court orders that the costs of any other motions served but not filed, and abandoned by the plaintiff, are reserved to the trial judge.

HEALEY J.

Date: October 1, 2012