ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-51657
DATE: 2012/10/23

BETWEEN:

Joanne St. Lewis Plaintiff – and – Denis Rancourt Defendant

Richard G. Dearden, for the plaintiff

Denis Rancourt, self-represented

HEARD: By written submissions

DECISION with regards to costs incurred

by ST. LEWIS in responding to rancourt’S
refusal motion

R. Smith J.

[ 1 ] The issue raised in this decision is whether the successful responding party’s (St. Lewis’) costs should be reduced because Mr. Rancourt is a self-represented party who filed very lengthy materials which caused the respondent to expend substantial legal resources to respond?

[ 2 ] Ms. St. Lewis submits that she should recover costs on a substantial indemnity basis in the amount of $27,641.03, inclusive of disbursements plus HST because of Mr. Rancourt’s unreasonable conduct of filing lengthy motion materials on many questions which were totally devoid of merit. Alternatively, she seeks costs on a partial indemnity basis of $21,203.53, inclusive of disbursements plus HST.

[ 3 ] The plaintiff, Ms. St. Lewis, successfully responded to Mr. Rancourt’s motion for an order directing her to answer thirty-five (35) questions. In his motion, Mr. Rancourt sought to compel answers to 145 questions which he posed to four witnesses, which resulted in a refusals chart of some 86 pages.

[ 4 ] The plaintiff further submits that the defendant engaged in inacceptable conduct by stating that he was not aware of the existence of documents disclosed to Joseph Hickey and stating that he had not received legal advice for the motion on June 20, 2012, when these statements were untrue. I am unable to make a finding on whether the above allegations have been proven on a balance of probabilities on the evidence before me.

[ 5 ] Mr. Rancourt objects to Ms. St. Lewis’ claim for costs for the attendance and arguments before Justice Beaudoin on June 20, 2012. Mr. Rancourt submits that since Beaudoin J. dealt with three refusals charts and I dealt with only one refusals chart, Ms. St. Lewis’ preparation time should be reduced by three quarters of the amount claimed.

[ 6 ] Mr. Rancourt also objects paying costs of Ms. St. Lewis’ counsel for his attendance on July 26, 2012, a date which was fixed by Regional Senior Justice Hackland. Mr. Rancourt was unable to attend because he had a medical appointment on that day. Mr. Rancourt further objects to the amount of time claimed for responding to his written submissions.

[ 7 ] Mr. Rancourt further submits that an excessive amount charged for disbursements for photocopies, and for Quicklaw and Carswell research. Mr. Rancourt objects to the 30 hours claimed for research for senior counsel. I agree with this submission and there will be a reduction on this aspect. Finally, the defendant submits that his refusals motion was reasonably brought and that he denies making any false representations.

[ 8 ] Mr. Rancourt also argues that the amount of costs awarded should be reduced because he is impecunious and unable to pay any costs as he lost his employment in 2009. He submits that the requirement to pay a costs award would exhaust his financial savings. He also submits that Ms. St. Lewis does not need to be indemnified by him because her fees are being paid by the University of Ottawa (the “University”) and that there is a possibility of double recovery if the plaintiff recovers fees both from University of Ottawa and from himself.

Factors

[ 9 ] The factors to be considered when fixing costs are set out in Rule 57 of the Rules of Civil Procedure and include in addition to success, the amount claimed and recovered, the complexity and importance of the matter, unreasonable conduct of any party which unduly lengthened the proceeding, scale of costs and any offer to settle, the principle of indemnity, hourly rate claimed the time spent and the principle of proportionality, and the amount that a losing party would reasonably expect to pay.

Success

[ 10 ] In this case the plaintiff, Ms. St. Lewis, was completely successful as all of the 35 refusals to questions posed by Mr. Rancourt were upheld as valid refusals.

Complexity and Importance

[ 11 ] The issues on a refusals motion are of the most average complexity and were only important to the parties.

[ 12 ] While a refusals motion is not a complex matter, it did require the responding parties to spend a substantial amount of time to respond as each question had to be considered individually. One hundred and forty-five (145) refusals were raised by Mr. Rancourt, thirty-five (35) for Ms. St. Lewis and the balance related to three witnesses from the University.

[ 13 ] The issue of champerty and maintenance is an area of more complexity, especially in circumstances where the plaintiff’s legal fees are being paid by her employer, the University of Ottawa. This aspect required some extra research and preparation.

Unreasonable Conduct of Any Party

[ 14 ] Mr. Rancourt filed a very lengthy 347 page motion record on his refusals motion. He may or may not have obtained some legal advice to assist him to prepare his motion materials, however, I am unable to determine whether he did or did not have access to independent legal advice. While his refusals motion was overly lengthy and devoid of merit, I find that his conduct in bringing a refusals motion was not so unreasonable as to justify imposing substantial indemnity costs.

[ 15 ] Whether Mr. Rancourt obtained objective independent legal advice or not, his actions have caused the respondents to incur substantial legal costs. The fact that Mr. Rancourt was a self‑represented party is not a valid reason for reducing the substantial amount of legal costs that he caused the respondents to incur. I find that Mr. Rancourt should be held responsible to indemnify the respondents for their reasonable legal costs incurred as a result of his lengthy refusals motion where he unsuccessfully sought answers to all 145 questions.

[ 16 ] I find that if a party, represented or self‑represented, files very extensive lengthy materials in support of their claim raising multiple issues, they cannot object if the opposing parties spend a substantial amount of time to review and respond to the lengthy materials.

Scale of Costs and Offers to Settle

[ 17 ] In this case, there were no offers to settle and I am not prepared to award substantial indemnity costs based on the conduct of Mr. Rancourt, even though his excessively lengthy materials caused Ms. St.-Lewis to spend a substantial amount of time to respond. This is not a matter for the higher scale of costs but rather I will increase the time that will be approved at partial indemnity rates.

Hourly Rates, Time Spent and Proportionality

[ 18 ] In this case, Mr. Rancourt does not object to the hourly rates charged by senior counsel for the plaintiff or by junior counsel who has done some of the work in this matter. Mr. Rancourt submits that the time spent is excessive and objects to the time being spent for the refusals motion related to the University which involved three witnesses and three refusals charts. He therefore seeks a reduction of three quarters of the time spent by Ms. St. Lewis’ counsel. I do not agree with this submission and find it was reasonable for counsel for Ms. St. Lewis to have prepared for and attended the motion before Beaudoin J. on June 20 th and on all other court attendances.

[ 19 ] Mr. Rancourt submits that the time claimed for research and preparation was excessive given the experience of senior counsel. Both the complexity of the matter and the length of materials and number of issues raised by the moving party are important factors when considering the reasonableness of time spent. I have already found that the matter of refusals is not a complex legal issue as relevance is the main factor. However, Mr. Rancourt produced a very lengthy 347 page record, sought answers to 145 separate questions, and all of the refusals were found to be justified. On his motion before me he was not successful in obtaining answers to any of the 35 questions. The same result occurred before Beaudoin J. with the three witnesses produced by the University. Again, the University witnesses were asked a large number of irrelevant questions and all of their refusals were found to be justified.

[ 20 ] The fact that Mr. Rancourt is self‑represented does not excuse his conduct or reduce his responsibility for costs when he unsuccessfully brought a lengthy motion and forced the opposing party to spend large amounts of time in preparation to respond to the many issues raised in the motion. I have not found that Mr. Rancourt conducted himself so improperly to justify substantial indemnity costs however, he caused Ms. St. Lewis and the University to incur substantial legal expenses to respond to his lengthy motion. The time spent by Ms. St. Lewis was proportionate to the number of issues raised by Mr. Rancourt.

[ 21 ] I do not agree with Mr. Rancourt’s submission that costs should not be awarded for preparation for the July 24, 2012 appearance before Beaudoin J., where Mr. Rancourt raised an allegation of bias against Beaudoin J. because he had established a bursary at the University of Ottawa to honour the memory of his recently deceased son. The appearance by the plaintiff on July 26, 2012 was justified as the date was fixed by the Regional Senior Justice after Beaudoin J. recused himself on July 24 th . I totally reject Mr. Rancourt’s submission that both counsel who attended on July 26 th intended to deceive the tribunal or to attempt to inappropriately influence the course of justice.

Double Time Claimed for Responding to Written Submissions

[ 22 ] I do not find that there was any double claim for time by Ms. St. Lewis. However, I will reduce the time allowed for research by senior counsel and also for some of the time spent reviewing Mr. Rancourt’s extensive submissions.

[ 23 ] Some additional time was spent by the requirement for attendances on July 26 and July 27, 2012 because of Mr. Rancourt’s allegation that Beaudoin J. was biased against him. Beaudoin J. held that he was not biased against Mr. Rancourt but given the allegations and the involvement of the memory of his deceased son, he decided that he could not continue as the case management judge. Unless Beaudoin J.’s finding is overturned on appeal his decision remains valid therefore the time spent will be included as the additional attendances on July 26 th and July 27 th were caused by Mr. Rancourt.

[ 24 ] The fact that the University has agreed to pay for Ms. St. Lewis’ costs is a matter between the University and Ms. St. Lewis. Reasonable costs will be awarded to Ms. St. Lewis as the successful party on the motion and any costs recovered from Mr. Rancourt by Ms. St. Lewis should be credited to any amount paid by the University towards Ms. St. Lewis’ legal costs.

Mr. Rancourt’s Inability to Pay Costs

[ 25 ] Mr. Rancourt submits that he is unable to pay costs due to the loss of his employment. I do not have sufficient evidence before me to determine whether or not Mr. Rancourt is unable to pay legal costs. Whether he has made himself judgment proof as alleged by Ms. St. Lewis in her submissions by recently transferring his interest in his home to his spouse for $1.00 is not a reason for not awarding reasonable costs to the successful party. I am also unaware of how successful he has been with his on‑line solicitation of financial support for his legal costs. Mr. Rancourt’s alleged inability to pay costs is not a factor given much weight in the circumstances where his own conduct has caused the responding party to incur substantial legal costs to reasonably respond.

Amount the Unsuccessful Party Would Reasonably Expect to Pay

[ 26 ] When a party brings a refusals motion on 145 questions, files a 347 page record and forces the opposing party to respond to each question, I find they would reasonably expect a substantial amount of time to be spent by the responding party. I also find it was reasonable for Ms. St. Lewis’ counsel to attend the refusals motion held on June 20, 2012 and to have prepared for the said motion even though the questions related to Professor St. Lewis were not dealt with by Beaudoin J. on that date. Likewise, it was reasonable for her counsel to attend court on July 24, 2012 before Beaudoin J., and on July 26 th , the date fixed by Regional Senior Justice Hackland, and again, on the attendance before me on July 27, 2012.

Disbursements

[ 27 ] I find that the disbursements claimed of $1,391.03 are reasonable given the voluminous record filed by Mr. Rancourt and that the research was reasonably required on the unusual subject matters of champerty and maintenance. I therefore find the disbursements of $1,391.03, inclusive of HST were reasonably incurred and are recoverable.

Disposition

[ 28 ] Having considered all of the above factors and the positions of the parties, I order the defendant, Denis Rancourt, to pay costs to plaintiff on a partial indemnity rate fixed in the amount of $15,000, plus HST plus disbursements of $1,391.03, inclusive of HST.

Request to Stay

[ 29 ] Mr. Rancourt requests that the costs order be stayed pending his motion for leave to appeal both my decision and Beaudoin J.’s decision. I agree with this request. The costs awarded herein are not to be enforced by the plaintiff until a decision is given on Mr. Rancourt’s motion for leave to appeal, of both my decision and Beaudoin J.’s decision has been made.

R. Smith J.

Released: October 23, 2012