SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-11-426288
DATE: 20121106

RE: Jin Mo, Plaintiff

AND

Eric Johnson, Defendant

BEFORE: Morgan J.

COUNSEL:
Joseph Kary , for the Plaintiff

Lou Brzezinski and Lea Nebel , for the Defendant

DATE HEARD: October 19, 2012

C O S T S E N D O R S E M E N T

[ 1 ] On August 14, 2012, I released my endorsement granting summary judgment to the Defendant. At that time I invited the parties to make submissions on costs. Both parties provided me with written submissions and, at the request of Defendant’s counsel, they have both also appeared before me for oral submissions on costs.

[ 2 ] Defendant requests costs on a substantial indemnity basis. Ms. Nebel, who represented the Defendant throughout the course of the action, has provided an affidavit detailing the history of the proceedings and describing the conduct of the Plaintiff. She contends that the Plaintiff prolonged the action and made it more costly than it otherwise needed to be.

[ 3 ] Since Ms. Nebel swore an affidavit in support of the Defendant, her colleague Mr. Bizezinski argued the costs issue for the Defendant.

[ 4 ] Mr. Kary, for the Plaintiff, raises three arguments in objecting to the Defendant’s request for substantial indemnity costs. First, he submits that since Ms. Nebel has sworn an affidavit setting out new factual matters, the question of costs should be before an assessment officer rather than the motion judge. Second, he argues that in any case there are no grounds on which to award costs on an elevated scale, and that in the ordinary course this motion should attract no greater costs than the standard partial indemnity scale. Third, he contends that the costs at issue are the costs of the motion, not the entire action, even though the result of the summary judgment motion is dismissal of the action.

[ 5 ] I will address each of the Plaintiff’s objections in turn.

[ 6 ] Rule 57.03 gives the court authority to fix costs. It is possible, of course, to refer the question to an assessment officer to assess the costs in detailed fashion, but this is envisioned as being an exception to the general rule that the court fixes costs. Boucher v. Public Accountants for the Province of Ontario (2004), 2004 14579 (ON CA) , 71 OR (3d) 291 (Ont CA).

[ 7 ] As indicated, Mr. Kary is of the view that since Ms. Nebel had to provide an affidavit of her own in order to support her client’s position, there is now extrinsic evidence going to the costs question that needs to be heard by an assessment officer. He submits that the motions judge can fix costs based on his having heard the motion itself, but that the court cannot entertain additional evidence on costs.

[ 8 ] I am not convinced that Mr. Kary is correct about whether a party may submit to a motion judge new evidence going to costs. In any case, however, this submission mischaracterizes Ms. Nebel’s affidavit. Her material was organized in affidavit form, but the fact is that she simply recounted the procedural history of the action. That is what every counsel does when he or she argues costs. The judge is typically advised by counsel how long cross-examinations took, how time consuming it was to draft affidavits of the parties, whether opposing counsel was reasonably cooperative or created extra procedures that are evident in the record, etc.

[ 9 ] Since this matter had a lengthy procedural history, Ms. Nebel thought it convenient to organize this information in the form of an affidavit. But it was not “new evidence” in any sense other than providing the usual narrative of the procedural history that any judge needs in order to fix costs. The relevant information she provided could have been gleaned from the various procedural motions, court orders, transcripts, and materials filed on the motion; Ms. Nebel’s affidavit merely presented it in an organized and more easily accessible format.

[ 10 ] Accordingly, there is nothing here to displace the authority and discretion given to the court to fix costs.

[ 11 ] Secondly, Mr. Kary submits that there is no reason on the merits for costs to be on a substantial indemnity scale. He says that the action was pursued in a bona fide way by the Plaintiff, and was brought because of the Plaintiff’s genuine distress at the treatment he received from the Defendant. He casts the Plaintiff as a vulnerable, self-represented party whose first language is not English, and who suffered hurt feelings because of the acts of a Defendant who works for a somewhat imposing corporate security company.

[ 12 ] I have no personal experience of the Plaintiff since, although he was self-represented throughout the action, he retained Mr. Kary as counsel to argue the summary judgment motion. However, I have read his words in his affidavit, his transcript of cross-examination, and his factum, and I know his professional background. The Plaintiff has testified that he is a lawyer who practices in a number of fields, including civil litigation. He pursued motions and drafted documents in a way that indicated that he is knowledgeable about the litigation process. While English may not be his first language, I have seen no indication that he has any problem expressing himself or understanding what is said to him.

[ 13 ] If anything, it is the Defendant who was the party caught up in something beyond himself here. The Plaintiff complained of acts done by the Defendant while on duty as a security guard in the Plaintiff’s condominium building, but the Defendant’s employer was never named as a Defendant. The Defendant was therefore left to personally fend for himself. He retained very competent counsel, but this was no doubt a burdensome expense for a uniformed security guard to bear.

[ 14 ] The procedural history indicates that the Plaintiff fully utilized his ability to work the legal system in approaching this case. He made serious allegations of misconduct against the Defendant which turned out to be unfounded. These allegations of prejudicial and oppressive conduct in the course of his employment were such as would seriously and detrimentally impact on the Defendant’s reputation. The fact that they were found to be without merit is itself sufficient to warrant costs on a substantial indemnity scale. 1175777 Ontario Limited v. Magna International Inc. (2007) 61 RPR (4 th ) 68 , aff’d (2998), 66 RPR (4 th ) 186 (Ont CA) .

[ 15 ] Moreover, in April 2012 the Plaintiff lost a motion and then refused to approve the formal order as to form and content, thus forcing Defendant’s counsel to spend more time attending at the registrar to take out the order. I am advised that the Plaintiff has yet to pay the outstanding costs from that motion. He then moved for an extension of time to file a factum on May 15, 2012 and, having been granted that extension in a motion before Archibald J., served a factum dated May 14, 2012.

[ 16 ] Mr. Kary states that the Plaintiff offered to settle the case for no money from the Defendant, but the offer was drafted in a way that no well-advised Defendant would accept: it provided that the action would be “withdrawn” rather than dismissed, and required the Defendant to “undertake to abide by the rules of conduct as set by his present employer”. Both terms seem cleverly devised not to terminate the dispute but to keep the threat of renewed litigation hanging over the Defendant.

[ 17 ] The real problem with the Plaintiff’s position, however, is that the action was always the kind of mountain-out-of-a-molehill that only a self-represented lawyer could afford to sustain. The gist of the claim was that one delivery slip was crumpled in his mailbox and another got lost and he therefore didn’t receive his courier parcels until several weeks after they were delivered. When he complained to the security guard, he felt insulted that the guard was not sufficiently polite in his response.

[ 18 ] These accidents and small slights prompted a personal claim against the security guard for $100,000.00 in compensatory damages and $200,000.00 in punitive and exemplary damages, with all the twists and turns of procedure that a claim of that magnitude brought by a Plaintiff lawyer might entail. The claim was then pursued without the Plaintiff producing a shred of evidence that he had suffered any actual losses.

[ 19 ] In short, it appears to me that the Plaintiff used his professional knowledge to lash out at what he might have anticipated would be a hapless Defendant. This is an approach to litigation that merits disapproval through a costs award on a substantial indemnity basis. Prinzo v. Baycrest Centre , 2002 45005 (Ont CA). While I have no reason to doubt Mr. Kary’s characterization of the Plaintiff as feeling genuinely insulted by the sequence of events described in the Statement of Claim, that is of little comfort to the Defendant who had to defend the law suit. The purpose of litigation is to vindicate actual legal rights and to make parties whole for their real losses; it is not a device to be wielded to the tune of hundreds of thousands of dollars against someone by whom one feels slighted during the routine interactions of daily life.

[ 20 ] In my view, Plaintiff’s conduct of the litigation has been aggressive and high-handed, and it therefore merits costs on a substantial indemnity scale. See In-Med laboratories Ltd. v. Ontario (Director, Laboratory Services Branch) (1991), 1991 8255 (ON SCDC) , 45 OAC 241, at para. 2 (Div Ct). The Defendant was put through a legal ordeal for no good reason.

[ 21 ] Finally, Mr. Kary submits that the costs of a summary judgment motion are limited to the costs of the motion alone, and do not encompass the costs of the entire action. Neither Rule 20 nor Rule 57, which provide, respectively, for summary judgment and costs, addresses this question directly.

[ 22 ] Mr. Bizezinski responds by pointing out that summary judgment dispenses with the entire action, and therefore stands in the place of a judgment at trial. A trial judge would, in the ordinary course, address costs of the entire action, and not just the motion.

[ 23 ] The reported cases demonstrate that summary judgment motions have been treated like trial judgments for the purposes of costs. That is, the costs of the entire action preceding the motion – with the exception of those interim motions on which costs have already been granted or denied – are fixed by the court. In Kelly v. St. Michael’s Hospital , 2009 CarswellOnt 638 , for example, the court granted summary judgment for the defendant and, in awarding costs, stated (at para. 4):

Counsel for these defendants were involved in pleadings, document discovery, examinations for discovery, attendance at examinations for discovery, trial scheduling court as well as extensive preparation for trial and preparation for summary judgment motion. Keeping in mind the guiding principles of the Rules of Civil Procedure there is no doubt that this was a complex proceeding which was of significant importance to the defendants. The conduct of the plaintiffs is certainly another factor here.

[ 24 ] I agree with Mr. Bizezinski that where summary judgment dismisses the action, it is the costs of the action in its entirety that are at issue. To hold otherwise would allow a party who brings spurious litigation to cause the opposing side to incur substantial costs with no means of compensation.

[ 25 ] The Defendant has submitted a Bill of Costs that appears fair and reasonable. Virtually all of the work was done by Ms. Nebel, who is a 10 year lawyer whose rate is set at $300/hour. A small amount of work on the file was done by a law student at the modest rate of $60/hour. The work covers pleadings, a request to admit, an affidavit of documents, attendance at motion scheduling court several times, cross-examinations, settling the order of the April 18, 2012 motion, the summary judgment motion itself, and the submissions on costs. As this court has said, “The overriding principle of reasonableness must govern, rather than any exact calculation of what costs should be allowed. A line by line assessment of the fees is not required.” 1175777 v. Magna , supra , at para. 138.

[ 26 ] The Defendant’s Bill of Costs sets out costs on a substantial indemnity scale in the amount of $43,982.50, with disbursements in the amount of $2,064.46. Added to this is HST in the amount of $5,717.73. Putting this all together, I award the Defendant costs in the amount of $51,764.69, inclusive of disbursements and tax.

Morgan J.

DATE: November 6, 2012