COURT FILE NO.: CV-12-447220
DATE: 20121204
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Suzanna Dobson v. Arthur Duncan Green
BEFORE: Mr. Justice Kenneth L. Campbell
COUNSEL: Michael F. Smith, for the Applicant, Suzanna Dobson
Duncan Green, the respondent, in person
ENDORSEMENT (COSTS)
A. Introduction
[1] On July 27, 2012, I released Reasons for Judgment in relation to this matter. In the result, the application by Ms. Dobson was granted, and an order was made declaring the respondent, Duncan Green, a vexatious litigant and prohibiting him from initiating or continuing any further proceedings without the leave of a judge of the Superior Court of Justice. An order was also made restraining Mr. Green from contacting or approaching Ms. Dobson or attending near her residence or place of business/employment. See: Dobson v. Green, 2012 ONSC 4432.
[2] The only remaining issue is the costs of this application. Following the release of the Reasons for Judgment, I received and considered written submissions and other accompanying materials from the parties on this outstanding issue pursuant to Rule 57.01(7) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
B. The Positions of the Parties
[3] The applicant seeks a full indemnity costs order against the respondent totaling $19,101.44, or alternatively, a partial indemnity costs order totaling $12,151.94. In support of this request, the applicant has provided detailed dockets showing the time spent on the application, and thorough submissions directed to the relevant issues under Rule 57.01(1).
[4] The respondent acknowledges that usually the successful party is entitled to their costs, but contends that the applicant’s request for costs, in the circumstances of this case, is “troubling.” In support of this submission, the respondent has offered a variety of complaints about the conduct of the applicant and her counsel, largely related to alleged false statements made in relation to earlier disputes between the parties. The submissions by the respondent, and his accompanying materials, are largely not responsive to the applicant’s request for costs.
C. Analysis
- The Appropriate Scale of the Costs Order – Substantial Indemnity
[5] In my view the authorities support the proposition that litigants who have consistently pursued frivolous and vexatious claims against targeted individuals should be liable for substantial indemnity costs orders. See, for example: Deep v. College of Physicians and Surgeons, 2010 ONSC 5665; Affirmed: 2011 ONCA 196; Leave Denied: [2011] S.C.C.A. No. 152; Sauvé v. Merovitz, 2006 CanLII 42378 (Ont.S.C.J.); Coady v. Boyle (2004), 2004 CanLII 15122 (ON SC), 47 R.F.L. (5th) 283 (Ont.S.C.J.). In Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330, the Court of Appeal for Ontario, in a judgment by Sharpe J.A., recognized, at para. 22, that the multiple objectives of modern costs awards include discouraging and sanctioning “inappropriate behaviour by litigants.” Indeed, in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, the Supreme Court of Canada expressly recognized, at para. 25, that costs orders can also be used to “sanction behavior” that increases the duration and expense of litigation, or is “otherwise unreasonable or vexatious.” Moreover, Rule 57.01(f) expressly provides that one of the relevant considerations in fixing costs, is whether any step of the proceedings was “improper, vexatious or unnecessary.
[6] In my Reasons for Judgment, at para. 49, I concluded that, based on all the evidence filed on the application, the respondent was a “vexatious litigant” within the meaning of s. 140(1) of the Courts of Justice Act, R.S.O. 1990, chap. C.43, in that the respondent has “persistently and without reasonable grounds” instituted “vexatious proceedings” and has conducted them in a “vexatious” manner. I also concluded, at para. 52-53, that the respondent had all of the hallmarks of a “vexatious litigant” in that, over the years, he had: (1) sought to re-litigate issues already determined by a court of court of competent jurisdiction; (2) launched or continued proceedings where they could not reasonably succeed; (3) brought proceedings for an improper purpose; (4) continued to pursue issues important to him by rolling them forward into new proceedings where his views have been repeated and supplemented, notwithstanding earlier rulings against him in relation to those very issues; (5) failed to pay the costs of his unsuccessful litigation ventures, and failed to satisfy court orders for monetary compensation; and (6) launched and pursued some appeals that had no realistic chance of success.
[7] In all of the circumstances of this case, in my view this is a case that demands a substantial indemnity costs award against the respondent. The respondent has engaged in a lengthy history of vexatious litigation against the applicant, and his misconduct in this regard merits the sanction of a substantial indemnity costs order. Such an award will also go some distance towards indemnifying the applicant for her costs associated with her application.
- The Precise Quantum of the Costs Order
[8] The applicant has provided, in her Costs Outline, a detailed account of her partial indemnity costs and a detailed account of her full actual costs, but has not provided an account of her substantial indemnity costs (other than to suggest such costs are identical to her actual costs). According to the definition of “substantial indemnity costs” provided in Rule 1.03, such costs are one and a half times the partial indemnity costs that would otherwise be awarded. Applying that 1.5 factor to the total partial indemnity costs claimed by the applicant results in a substantial indemnity costs amount of $15,375 for the applicant’s legal fees. The HST on that amount equals $1,998.75. The applicant’s disbursements are $569.44 (including taxes). Adding these three figures together results in a total substantial indemnity costs amount of $17,943.19. I hereby fix the applicant’s costs in that amount.
D. Conclusion
[9] In the result, the respondent shall pay the applicant’s substantial indemnity costs of this application in the total amount of $17,943.19, inclusive of all taxes and disbursements.
[10] The applicant has also asked that I settle the final contents of the order that should be issued in connection with this application and my Reasons for Judgment. Apparently, the respondent has refused to approve the draft order the applicant submitted for his consideration. I have, in accordance with this request, reviewed the draft Order provided and have now finalized its contents. In an effort to conclude this matter efficiently, I have included, in that finalized order, the costs order that flows from this Endorsement (Costs). That order should issue.
Kenneth L. Campbell J.
DATE: December 4, 2012