ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-51657
DATE: 2012/12/11

BETWEEN:

Joanne St. Lewis Plaintiff – and – Denis Rancourt Defendant

Richard G. Dearden, for Joanne St. Lewis
Denis Rancourt, self-represented

University of Ottawa Rule 37 Affected Participant

Peter K. Doody, for the University of Ottawa

HEARD: By written submissions

DECISION on costs for Mr. Rancourt’s refusals motion against the university heard by beaudoin J. on june 20, 2012

R. Smith J.

Jurisdiction to Award Costs

[ 1 ] This decision deals with the jurisdiction of a case management judge to award costs for a proceeding which occurred before a different judge who recused himself following the motion before deciding the issue of costs.

[ 2 ] Justice Beaudoin recused himself as a result of Rancourt alleging that he had a conflict of interest because he had established a bursary in the name of his recently deceased son at the University of Ottawa. Justice Beaudoin found that he did not have a conflict of interest but given the anguish caused to him by Rancourt involving the death of son, he felt that he could no longer decide any further issues involving Rancourt on an objective and impartial basis.

[ 3 ] The University submits that I have jurisdiction to award costs for the motion before Beaudoin J. on June 20, 2012 because I was appointed the case management judge to deal with all ongoing issues in this case. I agree with this submission. After Beaudoin J. recused himself as the case management judge, Regional Senior Justice Hackland assigned me to deal with all outstanding and ongoing issues in this case. I find this includes jurisdiction to hear submissions and make an award for costs on the refusals motion for the University representatives heard by Beaudoin J. The Divisional Court would not have jurisdiction to fix costs as there is no appeal and there is no order of costs from Beaudoin J. from which to appeal. As a result, I find that I have jurisdiction to decide the issue of costs for the proceedings which were heard by Beaudoin J. on June 20, 2012 and July 24, 2012.

Positions

[ 4 ] The University of Ottawa (the “University”) seeks costs on a partial indemnity basis in the amount of $14,116.26, inclusive of fees, disbursements and HST for successfully responding to Mr. Rancourt’s (“Rancourt”) motions for refusals heard by Beaudoin J. on June 20, 2012.

[ 5 ] Rancourt also argues that the University is not able to claim costs for having its counsel attend at the refusals motion which involved representatives of the University of Ottawa. I have already decided this issue in my decision dated June 16, 2012 on the Motion for Leave to Appeal, from Beaudoin J.’s order dated February 8, 2012. The University as a person who may be affected by an order under rule 37.07(1) has the right to be served, to file responding materials and to participate in the motion. In addition, if successful, which was the case, I find that the University has the right to claim for indemnification for costs incurred pursuant to the factors set out in rule 57 of the Rules of Civil Procedure.

[ 6 ] Rancourt also alleges that he is impecunious and therefore submits that an award of costs should not be made against him. I previously found in awarding costs to Ms. St. Lewis (“St. Lewis”) in her part of the refusals motion that I do not have sufficient evidence that Rancourt is impecunious as there is no sworn evidence to this effect before me. The same situation applies when deciding to award costs in favour of the University. I agree with the reasoning in Myers v. Toronto (Metropolitan) Police Force, (1995) 1995 11086 (ON SCDC), 84 O.A.C. 232 (Div Ct.), at paras. 19‑22 where the Court stated that that it is important to avoid a situation in which litigants without means can ignore the rules of the court with impunity and by alleging impecuniosity, avoid the payment of costs.

[ 7 ] Rancourt further alleges that counsel for the University has misrepresented the facts to the court and that for this reason costs should not be awarded in favour of the University. I find that counsel for the University did not misrepresent the facts to me in any way. I further find that counsel for the University’s description of the exchange that occurred between Rancourt and Beaudoin J. on July 24, 2012 was not misleading in any way.

[ 8 ] Rancourt also submits that I should not make a costs order in favour of the University because he will have to prepare for the motions for leave to appeal and other motions that he may be responding to or I may be bringing. I do not find that the fact that Rancourt has brought multiple motions is a reason for not indemnifying the successful party for reasonable costs incurred in one of those motions. Costs are awarded to encourage settlement between the parties and to discourage parties from taking unmeritorious proceedings before the court.

[ 9 ] Rancourt submits that there was duplication of effort by the University and St. Lewis and that both counsel were being paid by the University. He submits that it is not equitable to make the defendant pay the costs for both lawyers. I agree with Rancourt’s submission that if there was duplication in preparing for the same issue by both counsel then some reduction would be appropriate. In this case, the refusals motions dealt with by Beaudoin J. involved three representatives from the University of Ottawa who were examined by Rancourt. Mr. Dearden’s involvement related to refusals to questions related to St. Lewis and not to the refusals by the University representative. As a result, I observed little duplication as both counsel dealt with refusals to different questions.

[ 10 ] Rancourt had previously submitted that Mr. Dearden should be awarded one quarter of the costs he sought because he had only one set of refusals to deal with while Mr. Doody had to represent three individual representatives of the University of Ottawa. Rancourt’s submission implies that Mr. Doody, as counsel for the University, had a greater role to play in the refusals motion before Beaudoin J. than Ms. St. Lewis had in her refusals motion and therefore Rancourt would reasonably expect to pay a larger amount in costs to the University that he was ordered to pay to St. Lewis.

Factors

[ 11 ] 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

[ 12 ] In this case the Universtity was completely successful in that all of the approximately 100 questions that representatives of the University refused to answer, raised by Rancourt, were upheld as being valid refusals.

Complexity and Importance and Proportionality

[ 13 ] The issues were not complex and were important to the parties. Over 100 questions were in issue and the precise basis for the refusals had to be addressed for each question or group of questions. I adopt the reasoning in my decision dated October 23, 2012 awarding costs to St. Lewis in the refusals motion involving her.

Unreasonable Conduct of Any Party

[ 14 ] As previously stated, I do not find that there is any unreasonable conduct whatsoever by counsel for the University. I also find that Rancourt’s conduct of bringing this motion which was found to be without merit does not rise to the level of conduct that is so unreasonable such that would justify an award of solicitor‑client costs.

Scale of Costs and Offers to Settle

[ 15 ] The University seeks costs on a partial indemnity basis. I agree that this the appropriate scale. Where a party raises many issues, in this case over 100 refusals, and forces the responding party to prepare and address each of these issues, that party would reasonably expect substantial legal expenses to be incurred and to be paid if he or she was not successful.

[ 16 ] The fact that Rancourt has chosen not to seek advice from independent experienced counsel in libel matters and has chosen to represent himself in these proceedings and has been completely unsuccessful on all of the refusals motions decided to date, is not a reason for not ordering costs. Rancourt has every right to choose to be self‑represented in this complex defamation action but this choice is not a reason for not awarding costs against him when he has caused the opposing party to expend substantial amounts of money to successfully respond to his motion.

Hourly Rates, Time Spent and Proportionality

[ 17 ] I find that the hourly rates claimed and time spent by counsel for the University are very reasonable given the number of refusals by three different representatives of the University.

Amount the Unsuccessful Party Would Reasonably Expect to Pay

[ 18 ] Rancourt was aware that he had sought an order that University representatives answer many questions that had been refused. As a result, I find Rancourt was aware that if he was not successful on his motion that he would have to pay a substantial substantial amount of costs.

Disposition

[ 19 ] Having considered all of the above factors, I order Rancourt to pay costs of $12,000.00, inclusive of HST plus disbursements of $417.76 to the University.

R. Smith J.

Released: December 11, 2012

COURT FILE NO.: 11-51657
DATE: 2012/12/11

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Joanne St. Lewis Plaintiff – and – Denis Rancourt Defendant DECISION REGARDING COSTS (claim for costs by the University of ottawa for Mr. Rancourt’s refusals motion of june 20, 2012) R. Smith J.

Released: December 11, 2012