ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-51657
DATE: 2013-06-10
BETWEEN:
Joanne St. Lewis
Plaintiff
– and –
Denis Rancourt
Defendant
Richard G. Dearden, for the Plaintiff
Denis Rancourt, self-represented
HEARD: By written submissions
AMENDED COSTS DECISION ON MR. RANCOURT’S REFUSAL MOTION ON THE EXAMINATIONS FOR DISCOVERY OF JOANNE ST. LEWIS
Corrected decision: The text of the original judgment was corrected
on June 10, 2013 and the description of the correction is appended.
R. SMITH J.
Overview
[1] Joanne St. Lewis (“St. Lewis”) seeks costs on a substantial indemnity basis due to the defendant’s unsubstantiated allegations that her counsel excessively interfered with the examination for discovery and because he claimed that her answers were overly long and non-responsive. Mr. Rancourt (“Rancourt”) also alleged that St. Lewis’ searches were insufficient, and he asked numerous improper and unnecessary questions. In addition Rancourt attempted to file an expert report which was ruled inadmissible by Justice Beaudoin.
Position of the Parties
[2] Rancourt submits that the plaintiff should not be indemnified for any legal costs because the University is paying her costs to pursue the libel action against him. Rancourt submits that the costs claimed for the refusal motion were excessive; that the time spent of 40 hours by senior counsel was excessive for a refusal’s motion involving 46 questions. He also disputes the partial indemnity rate of $315 per hour; the time claimed by junior counsel for conducting legal research on examinations for discovery; and the time claimed for preparing the costs outline. He submits that the amount of costs should be fixed at $6,000 prior to taking the plaintiff’s counsel’s conduct into account.
[3] Rancourt further submits that the plaintiff’s counsel’s conduct is such that it should disentitle the plaintiff of any costs and counsel should personally pay motion costs to the defendant of $6,000.
[4] In addition, Rancourt submits that his inability to pay the costs should be taken into account if any costs are ordered. He seeks to file an affidavit to document his financial inability to pay. Finally, Rancourt requested that all of the costs ordered should follow the outcome of the action.
Factors
[5] The factors to be considered when fixing costs are set out in Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 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
[6] St. Lewis was completely successful as she was not ordered to answer any of the questions she refused to answer at her discovery.
Complexity and Importance
[7] The matter was of average complexity as the motion consisted of some 46 questions. Matters were important to the parties and also important to counsel for the plaintiff as the defendant had alleged insufficient searches and improper interference with examination for discovery. These accusations impugned the integrity of the plaintiff and her counsel.
No Indemnification Because University Reimbursing the Plaintiff for her legal Expenses
[8] The fact that St. Lewis’ employer has decided to reimburse her for her legal expenses is not a reason to deny costs to the successful litigant on a motion where that litigant was successful.
[9] St. Lewis has acknowledged, in the Champerty motion, that her legal fees are being paid by the University as it felt a moral obligation to defend her from the verbal attacks made by Rancourt and also because the alleged libellous statements were made because of her work as an employee of the University. The ultimate beneficiary of the award of costs will be the University of Ottawa who will recover some of the funds they have advanced to pay legal fees on behalf of St. Lewis. I have ruled that the agreement between the University and St. Lewis is not champertous or one of maintenance and that there was nothing improper in the University agreeing to pay the legal fees on behalf of its employee in the circumstances. I also see nothing improper with the University being reimbursed or indemnified for some of the fees it has incurred on behalf of St. Lewis. In the result, this argument by Rancourt is rejected.
Hourly Rates, Time Spent and Proportionality
[10] Rancourt submits that the time spent is excessive. Counsel for St. Lewis claims $22,166.17 on a substantial indemnity basis or $16,826.67 on a partial indemnity basis. The fees are further broken down to $14,760 for preparation and $1,260 for the one-half day appearance on the motion, plus disbursements of $806.17 all inclusive of HST.
[11] I previously found that the hourly rate of $315 on a partial indemnity basis is reasonable for counsel’s experience and expertise in the libel area, where he is recognized as a specialist.
[12] Rancourt objects to the 40 hours spent in preparation for the motion, Rancourt filed a refusal’s motion record containing 185 pages and a factum containing 144 pages and sought to compel St. Lewis to answers 46 questions. Rancourt’s actions caused St. Lewis to spend a substantial amount of time in preparation due to the number of questions involved. Rancourt was not reasonable in seeking answers to the questions, as he was unsuccessful on all 46 questions. The fact that Rancourt is not represented by legal counsel and has sought answers to 46 questions, which were not relevant, is not a reason for denying the successful opposing party reasonable costs for a reasonable amount of time to respond to the various questions raised.
[13] In addition, Rancourt unsuccessfully attempted to introduce an expert report by way of an affidavit and which unnecessarily lengthened the proceedings. The time spent for preparation of the costs outlines are included as these are mandatory under the rules of practice and are reasonably incurred. I will allow the limited amount of time spent by junior counsel of 16 hours at $120 per hour on a partial indemnity basis for research. Using junior counsel makes efficient use of the legal resources. I agree with Rancourt that the 40 hours of research by senior counsel for a refusal motion should be reduced somewhat.
Scale of Costs
[14] St. Lewis submits that costs should be awarded on a substantial indemnity basis, based on the false allegations of improper searches by St. Lewis, that counsel interfered excessively, and that Rancourt alleged that too many of St. Lewis’ answers were long and non-responsive. St. Lewis was successful on all 46 questions, and I did not find that her answers were overly long and non-responsive. However, I do not find that Rancourt’s conduct was so egregious to justify awarding costs on substantial indemnity basis for this motion. Costs will be awarded on a partial indemnity basis.
Conduct of Plaintiff’s Counsel
[15] Rancourt submits that the conduct of the plaintiff’s counsel should disentitle her from any costs. Plaintiff’s counsel did not interfere inappropriately with the examinations and was successful on all 46 questions. There is a high degree of hostility between Rancourt and St. Lewis and on occasion counsel for St. Lewis has become exasperated with Rancourt’s unreasonable and lengthy unsupported allegations of improper conduct against him and his client. I find that the conduct of plaintiff’s counsel does not disentitle St. Lewis to an award of costs.
Rancourt’s Alleged Inability to Pay Costs
[16] I previously ruled on this same issue in one of my previous costs decisions on motions involving Rancourt and St. Lewis, in particular, my decision on costs dated December 11, 2012, with respect to Mr. Rancourt’s refusals motion against the University heard by Beaudoin J. on June 20, 2012 St. Lewis v. Rancourt, 2012 ONSC 7066. I quoted from the Divisional Court in Myers v. Toronto (Metropolitan) Police Force (1995), 1995 11086 (ON SCDC), 84 O.A.C. 232 (Div. Ct.) where the Court stated that it was 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. The costs have been caused by the actions Rancourt who has chosen to file very lengthy, complex materials causing the opposing side to spend substantial amounts of time to respond. In this case he argued that 46 questions should be answered and was unsuccessful on all questions. I therefore find that Rancourt’s alleged impecuniosity is not a factor to be given great weight.
Amount the Unsuccessful Party Would Reasonably Expect to Pay
[17] Rancourt has been involved in multiple motions involving both counsel for the University of Ottawa and also counsel for St. Lewis who are experienced solicitors with large law firms and is aware of the costs incurred in raising multiple issues whether they be on refusals or other motions. As a result, I find that Rancourt is aware of costs and he would reasonably expect to pay costs in the range of $10,000 to $20,000 on a matter where multiple issues are raised and were he has unsuccessfully attacked the integrity of St. Lewis and her counsel.
Disposition
[18] Having considered all of the above factors, I order Mr. Rancourt to pay legal costs in the amount of $12,000, plus applicable HST plus disbursements of $806.17, inclusive of HST to the plaintiff.
R. Smith J.
Released: June 10, 2013
APPENDIX
Correction:
June 10, 2013: The fifth word “agreed” in the second last sentence of para. [16] was replaced with the word “argued”.
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Joanne St. Lewis
Plaintiff
– and –
Denis Rancourt
Defendant
AMENDED COSTS DECISION ON MR. RANCOURT’S REFUSAL MOTION ON THE EXAMINATIONS FOR DISCOVERY OF JOANNE ST. LEWIS
R. Smith J.
Released: June 10, 2013