ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-51657
DATE: 2013/06/24

BETWEEN:

Joanne St. Lewis

Plaintiff

– and –

Denis Rancourt

Defendant

Richard G. Dearden, for Joanne St. Lewis

Denis Rancourt, self-represented

HEARD: By written submissions

amended costs DECISION ON St. Lewis’ refusals motion ON THE EXAMINATION FOR DISCOVERY OF DENIS RANCOURT

Corrected Decision: The citation number of the original judgement was corrected on June 24, 2013 and the description of the correction is appended.

R. Smith J.

Position of the Parties

[1] The plaintiff seeks costs on a substantial indemnity scale in the amount of $24,998.00 based on the defendant’s unreasonable conduct. In the alternative, she claims costs on a partial indemnity basis in the amount of $18,918.00.

[2] Mr. Rancourt makes many of the same submissions he made in his costs submission in his refusal motion involving his discovery of Joanne St. Lewis. He was unsuccessful in both motions. He argues that St. Lewis does not need to be indemnified because the University is paying for her legal costs and he submits that success was divided. Mr. Rancourt submits he was acting in good faith and not unreasonable. He further submits the amount of time spent by the plaintiff was excessive; that the hourly rate and time spent in preparation was also excessive. He objects to the claim for the cost of future re-attendance at Examination for Discovery. He further submits that the plaintiff’s counsel’s conduct was unreasonable.

Factors

[3] 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

[4] In this case, Mr. Rancourt answered many of the questions and undertakings in writing after being served with the plaintiff’s refusals motion and undertakings chart. I agree with the plaintiff’s submission that his refusal to answer these questions at his oral Examination for Discovery caused unnecessary delay and lengthened the proceedings. Mr. Rancourt’s refusal to answer questions forced the plaintiff to bring a motion and gave Mr. Rancourt time to think about the answers and prepare written answers in response. The plaintiff was overwhelmingly successful on her motion. However, Mr. Rancourt did answer most of the questions before the motion was heard and was successful on approximately one half of the remaining questions, including providing copies of printouts of the website, for example.

Complexity and Importance

[5] Mr. Rancourt’s refusals caused the plaintiff to prepare a refusals and undertakings chart which was some 63 pages long. The defendant initially refused to answer 62 questions on 59 separate issues and subsequently answered most of the questions that he had refused to answer at oral examination. Mr. Rancourt’s conduct has made the matter complex and caused the plaintiff to incur substantial legal resources to prepare the motion including the charts and then, subsequently answered most of the questions. The issues are important to the parties as the plaintiff is claiming damages of $1,000,000 in her action.

Unreasonable Conduct of Any Party

[6] I find that Mr. Rancourt should have answered the questions during oral discovery rather than refusing and forcing the plaintiff to bring the lengthy motion with the refusals and undertakings chart. However, I find his conduct was not so unreasonable to justify costs on a substantial indemnity basis.

Hourly Rates, Time Spent and Proportionality

[7] I find, as I have previously held in costs awards between these parties, that the hourly rates claimed by both senior counsel and junior counsel was reasonable for the number of questions and issues that had to be dealt with.

Amount the Unsuccessful Party Would Reasonably Expect to Pay

[8] As I have also held in other costs decisions between the parties, Mr. Rancourt has had experience with other motions where costs in the range of $10,000 to $20,000 were awarded on complex motions that he either brought or responded to and where he was unsuccessful. I find that Mr. Rancourt is aware that on complex motions involving multiple issues and multiple questions, that substantial amounts of time must be spent in preparation and substantial legal costs are incurred. As the actions of Mr. Rancourt have caused the plaintiff to spend this time unnecessarily, I find that he is largely the author of his own unfortunate situation where he is required to pay substantial amounts of legal costs.

Disposition

[9] Having considered all of the above factors and the positions of the parties, I order Mr. Rancourt to pay costs of $14,000.00, inclusive of HST plus disbursements of $678.00.

R. Smith J.

Released: June 24, 2013

APPENDIX

Correction:

June 24, 2013: The amendment occurs in the citation number to correct the year from 2012 to 2013.

COURT FILE NO.: 11-51657

DATE: 2013/06/24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Joanne St. Lewis

Plaintiff

– and –

Denis Rancourt

Defendant

costs DECISION ON St. Lewis’ refusal motion ON THE EXAMINATION FOR DISCOVERY OF DENIS RANCOURT

R. Smith J.

Released: June 24, 2013