ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-CV-440545
DATE: January 21, 2013
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Applicant
– and –
MICHAEL SIIMAN
Respondent
Jeremy Glick for the Applicant
Martin E. Tiidus for the Respondent
HEARD: In writing
Perell, J.
REASONS FOR DECISION- COSTS
[1] Her Majesty the Queen in Right of Ontario (the “Crown”) brought an application pursuant to s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (vexatious proceedings) to prevent Mr. Michael Siiman continuing two civil actions or commencing any new actions except with leave of this court.
[2] I granted the Crown’s application and declared Mr. Siiman to be a vexatious litigant subject to strict terms and directions with respect to two outstanding actions and any future actions by Mr. Siiman. It is a detailed order. See Her Majesty the Queen in right of Ontario v. Siiman, 2012 ONSC 7088.
[3] With respect to costs, I ordered that the costs of the application should be payable to the Crown in any event of the cause of action 06-CV-303870, and if the parties could not agree about the amount of costs, the quantum shall be determined by submissions in writing beginning with the Crown’s submissions within 20 days of the release of the Reasons for Decision, followed by Mr. Siiman’s submissions within a further 20 days.
[4] The Crown now seeks substantial indemnity costs ($225 an hour) in the amount of $38,475.00.
[5] The Crown submits that the Vexatious Litigant Application is independent of both 11-CV-419902 and 06-CV-303870 and that the relief obtained could not have been obtained on a motion in an action. It then submits that the cost award should not be tied to the resolution of either of those independent actions and that costs should be payable immediately.
[6] Mr. Siiman submits that costs be left to the trial judge in the pending actions or alternatively that the costs be minimal and deferred until the completion of the litigation to reflect his impecuniousity and to allow access to justice.
[7] In my opinion, regardless of whether or not Mr. Siiman is impecunious, the appropriate award is to award the Crown $38,475.00 on a substantial indemnity basis payable in any event of the cause of action 06-CV-303870.
[8] The manner in which Mr. Siiman has conducted actions 06-CV-303870 and 11-CV-419902, which was the reason for the vexatious litigant application, justify substantial indemnity costs, and the amount of $38,475 claimed by the Crown is fair and reasonable.
[9] I disagree that the court does not have the jurisdiction to connect the payment of the costs for the Vexatious Litigant Proceeding with the completion of action 06-CV-303870. The Crown’s success in its Application under s. 140 of the Courts of Justice Act was largely based on the vexatious manner in which Mr. Siiman prosecuted those other actions, the substantive merits of which remain to be determined.
[10] The manner in which Mr Siiman responded to the Application itself was unobjectionable, and in awarding substantial indemnity costs, I am doing so because of the manner in which he prosecuted actions 06-CV-303870 and 11-CV-419902.
[11] It is just and fair that the costs be paid in any event to the Crown at the completion of action 06-CV-303870. Regardless of whether Mr. Siiman is impecunious, this type of cost award removes whatever impediment an immediate costs award would have to access to justice and to the determination of this over six year old action on its merits.
[12] If Mr. Siiman is successful in the action, the Crown will be able to set-off the cost award, and if Mr. Siiman is unsuccessful, he will pay costs on a substantial indemnity basis for the properly conducted Vexatious Litigant Application.
[13] It will be for the trial judge to determine whether he should pay substantial indemnity costs with respect to action 06-CV-303870.
[14] Order accordingly.
Perell, J.
Released: January 21, 2013
COURT FILE NO.: 11-CV-440545
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Applicant
‑ and ‑
MICHAEL SIIMAN
Respondent
REASONS FOR DECISION - COSTS
Perell, J.
Released: January 21, 2013.