ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-51657
DATE: 2013/01/23
BETWEEN:
Joanne St. Lewis
Plaintiff
– and –
Denis Rancourt
Defendant
Richard G. Dearden/Anastasia Semenova, for the Plaintiff
Denis Rancourt, self-represented
University of Ottawa
Rule 37 Affected Participant
Peter K. Doody, for the University of Ottawa
HEARD: By written submissions
Costs DECISION
annis j.
[1] This decision deals with the costs arising from my decision dated November 29, 2012 dismissing with costs the three motions for leave to appeal brought by the defendant from the three interlocutory decisions of Beaudoin J. and R. Smith J., as follows:
(i) The decision of Beaudoin J. made from the bench on June 20, 2012 dismissing the defendant’s motion to compel the University of Ottawa (“the University”) witnesses to answer questions and produce documents on the grounds that the judge demonstrated a reasonable apprehension of bias.
(ii) The ‘decision’ by letter of July 31, 2012 of R. Smith J. as Case Management Judge to refuse to set down the defendant’s motion to set aside the June 20, 2012 decision of Beaudoin J.
(iii) The decision of R. Smith J. of September 6, 2012 dismissing the portion of the defendant’s motion that had been adjourned by Beaudoin J. concerning the refusal of witnesses produced by the plaintiff to answer questions and produce documents.
[2] The University of Ottawa was granted standing as a Rule 37 Affected Participant. It opposed against granting leave on the issue of reasonable apprehension of bias of Beaudoin J. and the ‘decision’ by letter of R. Smith J. The plaintiff presented submissions principally relating to refusals motion order of R. Smith J. There was some degree of overlap in their submissions which I account for below.
[3] Both the University and the plaintiff sought costs on a substantial indemnity basis. They argued that the defendant was a vexatious litigant, had not brought the motions in good faith and was practicing a form of ‘judge-shopping’ to have judges declared conflicted out by abusive recourse to unmeritorious motions all of which were dismissed and thereafter bringing motions seeking leave to appeal.
[4] Reference was made to the large number of motions (16) and leave motions (seven), which I agree suggest an abuse of process. I particularly found no merit in the defendant’s leave application on the refusals motion of R. Smith J.
[5] Nevertheless, I conclude that the bias motion and that concerning the letter decision of R. Smith J. involved novel facts and legal principles, which although dismissed, were not devoid of any legitimacy such that an award of costs on a substantial indemnity basis could be justified on the grounds claimed.
[6] Mr. Rancourt for his part, argues that the cost award against him should be reduced to take into consideration his impecunious circumstances and the fact that the University and plaintiff expended considerable time on unsuccessful issues: to wit, opposing an extension of time, arguing that the letter of R. Smith J. was not a decision and that he was acting in bad faith.
[7] Mr. Rancourt’s impecuniosity would not be a ground to reduce costs payable by him. The same argument was rejected by R. Smith J. in his decision of December 11, 2012, (St. Lewis v. Rancourt, 2012 ONSC 7066) regarding the refusals motion of Beaudoin J. that the defendant sought leave to appeal from before me. See Lewis v. Rancourt, 2012 ONSC 7066 para. 6, also citing Myers v. Toronto (Metropolitan) Police Force, (1995), 1995 11086 (ON SCDC), 84 O.A.C. 232 (Div. Ct.) at paras. 19-22.
[8] On the other hand, Mr. Rancourt is entitled to some reduction in the costs claimed against him on the basis of duplication and some small degree of success in seeking to extend time to seek leave and my conclusion that the letter of R. Smith J. was a decision subject to considerations of appeal. I find that these results weigh little against the overall outcome on these motions, particularly against the defendant’s seeking leave of the refusals order of R. Smith J. In all he is entitled to a 15 per cent reduction of the costs claimed by the responding parties.
[9] The amounts claimed on a partial indemnity basis by the plaintiff and University are reasonable in light of the time spent, complexity of the matter, tariffs charged and proportionality factors. The defendant’s motion materials and the requirement to expend time reviewing all of the refusal decisions in these motions added substantially to the time required by the responding parties to prepare and argue these motions. For example, his materials were over 300 pages and raised numerous issues that had to be responded to as being incorrect.
[10] I accept that the University’s costs are somewhat higher than those of the plaintiff’s due to the more extensive analysis required to deal with the reasonable apprehension of bias challenge and to establish that Beaudoin J. had decided all the issues on the motion that involved the University witnesses prior to withdrawing from the case.
[11] Accordingly, I award costs to the plaintiff of $6,831.95 consisting of 85 per cent of her fees of $7,785 plus disbursements of $214.70 and to the University of $9,217.30 consisting of 85 per cent of its fees of $9,641.16 plus disbursements of $1,022.31, both as adjusted from the amounts set out in their respective Costs Outlines.
Mr. Justice Peter Annis
Released: January 23, 2013
COURT FILE NO.: 11-51657
DATE: 2013/01/23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Joanne St. Lewis
Plaintiff
– and –
Denis Rancourt
Defendant
University of Ottawa
Rule 37 Affected Participant
Costs DECISION
Annis J.
Released: January 23, 2013