ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-51657
DATE: 2013/07/26
BETWEEN:
JOANNE ST. LEWIS
Plaintiff
– and –
DENIS RANCOURT
Defendant
Richard G. Dearden and Anastasia Semenova, for the Plaintiff
Self-Represented
HEARD: By Written Submissions
COSTS DECISION – DEFENDANT SEEKING LEAVE TO APPEAL DECEMBER 7, 2012 DECISION RE: PLAINTIFF’S CROSS-EXAMINATION OF GERVAIS
kane j.
[1] The plaintiff seeks costs of this motion in an amount of some $14,000 or $19,000 based on the scale of partial or substantial indemnity.
[2] The defendant opposes a costs award to the plaintiff and seeks costs against the plaintiff of some $8,600.
CONSIDERATIONS UNDER RULE 57
Success
[3] The defendant was, subject to further cross-examination ordered to occur by June 30, 2013, granted leave to appeal 8 refusals by Gervais out of approximately 90 questions objected to during Gervais’ cross-examination.
[4] The limited leave granted was conditional on Gervais’ further cross-examination by June 30, 2013 and her answering whether she prepared her affidavit or whether it was prepared by Mr. Rancourt. In the former case as stated in my decision, litigation privilege would not apply as Gervais is not the defendant and is not entitled to litigation privilege. If she prepared the affidavit, the objection to the questions would be invalid and leave to appeal the order directing they be answered was not granted.
[5] In the latter case of the defendant preparing the affidavit, litigation privilege would apply with the result that leave was granted to appeal the order requiring these questions to be answered.
[6] This court in its decision set the June 30 limit to conduct the cross-examination of Gravis and ordered the parties to advise this court of Gervais’ response whether she or the defendant prepared her affidavit.
[7] In evidence on the motion for leave was the fact that Gervais, unlike the defendant, graduated from law school and provides advice to students and their association regarding internal university appeal proceedings as part of her employment.
[8] In submissions as to costs:
a) The defendant advised that Gervais by letter dated June 19, 2013 stated that “My affidavit … was prepared in consultation/discussion with the defendant.”
b) The plaintiff advised that Gervais during her June 28, 2013 cross-examination stated that her affidavit was drafted and typed on her home computer by she and the defendant.
[9] Under a), the implication clearly is that Gervais used her legal education and training to prepare her affidavit and had consultation/discussion with the defendant in doing so. Translated, the defendant talked to Gervais as she drafted/typed her affidavit.
[10] Counsel preparing affidavits for the signature of their clients or witnesses customarily discuss the subject(s) addressed in the affidavit with the deponent before and at the time of the signing of the affidavit. Those discussions do not alter who authored the affidavit.
[11] With her degree in law and law related experience, Gervais could have easily stated in her letter or said under oath on June 28 that the affidavit was prepared by the defendant if that was the case. She was unable to state that. The conclusion therefore is that she prepared her affidavit which was then served by the defendant on the plaintiff with the result that no litigation privilege may be claimed by the defendant as to the affidavit and its preparation. As a result, the defendant does not have leave to appeal the order that those questions be answered.
[12] It is inappropriate for this court to consider proposals made by the defendant to the plaintiff after release of my decision. Those submissions, therefore, are not relevant.
[13] The result therefore is the dismissal of the defendant’s motion for leave to appeal in relation to all or virtually all of the 90 questions objected to. The plaintiff was accordingly successful in defeating the defendant’s motion.
AMOUNT CLAIMED AND THE AMOUNT RECOVERED
[14] Not applicable.
APPORTIONMENT OF LIABILITY
[15] Not applicable.
COMPLEXITY OF THE PROCEEDING
[16] The motion was voluminous and exceeded what was central. It did however have to be addressed by the plaintiff.
IMPORTANCE OF THE ISSUE
[17] Further cross-examination of Gervais is not central to the defamatory issues of this action. The service of this affidavit was a “gift” to the plaintiff who has gone to great lengths to maximize the benefits thereof which includes being able to examine a future trial witness of the defendant. This court recognizes that this affidavit also relates to the defendant’s motion for further examination for discovery of the plaintiff.
[18] The point is however that this court should not be encouraging in the form of a costs award the pursuit of pre-trial examination of trial witnesses to be called by another party. This is clearly one of, or, the central purposes of this cross-examination. It is one of many causes of delay in getting this action on to trial thereby leading to more motions and additional costs.
[19] The above considerations are not determinative as to entitlement to costs. They are however a relevant consideration on the issue of quantum.
CONDUCT OF ANY PARTY THAT TENDED TO SHORTEN OR TO LENGTHEN THE PROCEEDING UNNECESSARILY
[20] See para. 5 above.
WHETHER ANY STEP WAS IMPROPER, VEXATIOUS OR UNNECESSARY OR TAKEN THROUGH NEGLIGENCE, MISTAKE OR EXCESSIVE CAUTION
[21] Not applicable.
A PARTY’S DENIAL OF OR REFUSAL TO ADMIT ANYTHING THAT SHOULD HAVE BEEN ADMITTED
[22] Not applicable.
EXPERIENCE OF THE LAWYER OF PARTY ENTITLED TO THE COSTS INCLUDING RATES CHARGED AND HOURS SPENT
[23] The hourly rates given the year of call and the hours expended are considered appropriate.
WRITTEN OFFERS OF SETTLEMENT
[24] No written offers of settlement of this motion for leave to appeal, served prior to my decision dated June 7, 2013, have been produced.
LEVEL OF COSTS TO BE AWARDED
[25] The appropriate scale of costs to be awarded is partial indemnity. The plaintiff does not argue otherwise.
AMOUNT OF COSTS THAT AN UNSUCCESSFUL PARTY COULD REASONABLY EXPECT TO PAY IN RELATION TO THIS PROCEEDING
[26] Subject to paras. 17 to 19 above, the amount of costs claimed using the above scales are within the reasonable expectations of an unsuccessful party in this action. They are proportional within that context.
[27] Given the outcome, the defendant is not entitled to costs.
[28] The plaintiff is entitled costs on a partial indemnity scale reduced by 60% for the reasons stated in paras. 17 to 19.
[29] The defendant is ordered to pay costs to the plaintiff within 30 days in the amount of $5,600 including disbursements and tax. That amount is also proportional to a motion for leave to appeal on a partial indemnity scale.
Kane J.
Released: July 26, 2013
COURT FILE NO.: 11-51657
DATE: 2013/07/26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JOANNE ST. LEWIS
Plaintiff
– and –
DENIS RANCOURT
Defendant
COSTS DECISION – DEFENDANT SEEKING LEAVE TO APPEAL DECEMBER 7, 2012 DECISION RE: PLAINTIFF’S CROSS-EXAMINATION OF GERVAIS _____________________________________________
Released: July 26, 2013