SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-11-15768

RE: Anna Visic, Plaintiff

AND:

University of Windsor, Mary Gold, Ross Paul, and Brian Mazer, Defendants

BEFORE: Master Lou Ann M. Pope

COUNSEL:
Anna Visic, acting in person

Michael A. Wills, for the Defendants

HEARD: Written Submissions

costs endorsement

[1] Pursuant to my order dated April 10, 2013 this action was dismissed for delay and for failure of the plaintiff to pay prior costs orders (Visic v. University of Windsor, 2013 ONSC 2063). The defendants were awarded costs of the motion and the action.

[2] The defendants seek costs on a partial indemnity basis as follows:

a) Motion: $27,941.98 inclusive of fees, HST and disbursements, and

b) Action: $36,882.77 inclusive of fees, HST and disbursements.

[3] The plaintiff submits that no costs be ordered against her for the motion or the action. Clearly the plaintiff fails to recognize that a cost order was made in my endorsement at paragraph 92. The issue is the quantum of the costs. Zero is not an option.

[4] Rule 57.03(1) requires that I fix the costs of the motion and order them to be paid within 30 days, or in an exceptional case, refer the costs for assessment. Neither party requested an assessment of costs.

[5] Rule 57.01 sets forth the factors to be considered by the court in exercising its discretion under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, placing emphasis on the result in the proceeding and any written offer to settle.

[6] In considering all of the factors, the following two are particularly relevant to this proceeding:

a) Subrule (e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding, and

b) Subrule (f)(i) whether any step in the proceeding was improper, vexatious or unnecessary.

[7] In my view, the plaintiff’s conduct in this action lengthened both significantly and unnecessarily the duration of this proceeding. This view was echoed by many judges on numerous motions, leaves to appeal, and appeals brought by the plaintiff. I do not intend to cite every instance that the plaintiff took steps that lengthened the duration of the action as they have been detailed in my endorsement which formed the basis for the dismissal of the action.

[8] This action was commenced in 2005. It did not progress beyond the close of pleadings. Over seven years, the defendants had to respond to approximately eight steps, including motions, leaves to appeal and appeals taken by the plaintiff in which she was unsuccessful and costs orders were made against her that total $7,703.09. None of the costs orders have been paid, nor has any portion thereof been paid.

[9] The plaintiff submits that she “should not be punished with costs” as “she has already suffered the dismissal of the action without resolution on the merits”.

[10] Respectfully, the action was dismissed due to the plaintiff’s conduct in the action, not the defendants. Further, cost awards are not intended to punish a party. They are intended to indemnify at least in part a successful party for its legal costs (rule 57.01(1)(0.a)). Moreover, the defendants have incurred solicitor and client costs in excess of $338,000 as set out in their costs submissions. They are only seeking costs on a partial indemnity basis, not full indemnity. The costs orders herein will not be an amount even close to indemnifying the defendants for their full costs of defending this action.

[11] The plaintiff further submits that “if costs are awarded against her she will be forced into bankruptcy”.

[12] In my view, had the plaintiff abided by the prohibition order made by Wilson J. dated August 12, 2010 by taking no further steps in this action, costs to the defendants would have been considerably less. However, following Wilson J.’s order, the plaintiff continued to seek leaves to appeal to the Divisional Court, Court of Appeal and to return her motion in Toronto. These steps are all outlined with detail in my endorsement.

[13] Sadly, the plaintiff is the author of her own misfortune having made the choices she did relative to the steps she took in this action in the face of many judicial opinions to the contrary.

Costs of the Action

[14] The costs of the plaintiff’s unsuccessful motion for an interim injunction and her unsuccessful leave to appeal were reserved to the trial judge. Given that this action did not reach trial as it was dismissed, the defendants are entitled to their costs of those proceedings which I will include in the costs of this action.

[15] I am not allowing the defendants their costs of “preparation of written undertaking and transfer of file to Windsor” which resulted from the defendants’ change of venue motion. That motion was granted without costs on the condition that the defendants file an undertaking. As such, they are not entitled to the costs for preparation of the undertaking and transfer of the file to Windsor.

[16] I am also not allowing the defendants their costs of preparation of the order from the plaintiff’s discontinuance motion. The defendants were awarded their costs of that motion which, in my view, includes the cost of taking out the order.

[17] I do not agree with the plaintiff’s submission that the defendants incorrectly “added ‘HST on Fees’ to the disbursements”. The HST on fees is simply a line item which was added on their disbursement list. They did not claim HST on the disbursements. In calculating 13 per cent on the fees claimed of $24,269, HST is correctly $3,154.97. The defendants are entitled to HST on legal fees.

[18] The defendants are entitled to costs of this action that include reviewing the statement of claim, amended statement of claim, preparation of statement of defence, opinion letters, injunction motion and leave to appeal, affidavit of documents, preparation for mediation, case conferences, correspondence and research. After deducting the amounts for the steps set out in the above two paragraphs, the defendants are hereby awarded $28,000, which includes legal fees, HST, and disbursements on a partial indemnity basis.

Costs of the Motion

[19] This motion was heard on October 4, 2012; however, it had to be continued on December 7, 2012 for two reasons. Firstly, as the plaintiff had filed a factum which was not in compliance with the Practice Direction for civil motions procedure, I ordered that the plaintiff file a factum in compliance with the Practice Direction for the next hearing. Secondly, the time estimated for submissions was inadequate.

[20] This motion was not overly complex; however it required more research and preparation as it was based on two grounds; namely, dismissal for delay and for failing to pay costs orders. These were held to be valid grounds and in fact the defendants were successful on both grounds. As well, further research was required given that the plaintiff raised the issue of impecuniosity.

[21] In opposing the motion, the plaintiff filed a significant amount of material which the defendants were required to review and to respond including two factums.

[22] In my view, a claim for costs of $27,941.98 for this motion is excessive. A total of 154 hours is being claimed including some 68 hours spent by Mr. Wills, defence counsel. I am not allowing the claim for some 10 hours for preparation and attendance at a case conference. The date of the case conference is not documented or the reason that it related to this motion. Further, I am not allowing attendance at the motion by a second defence counsel. This attendance was unnecessary for the purposes of the motion, although no doubt it was extremely beneficial to that counsel to observe the motion.

[23] In my view, $7,500 is a reasonable amount for costs of the motion on a partial indemnity scale including fees, HST and disbursements.

Conclusion

[24] The plaintiff shall pay the defendants the total sum of $35,500 which is broken down as follows:

a) $28,000 for the costs of this action, and

b) $7,500 for the costs of the motion.

[25] In my view, this amount is what an unsuccessful party would reasonably expect to pay for the steps outlined above. In reaching my decision on the amount of costs I have also considered the ability of the plaintiff to pay any cost order.

[26] To be clear, the above cost award does not include the outstanding costs orders made by previous courts in this action that total $7,703.09. This amount is to be added to the cost order of $35,500 for a total owing by the plaintiff of $43,203.09.

[27] The plaintiff made no submissions regarding the period of time when costs ought to be paid. In my view, they shall be paid within six months.

Original signed “Master Pope”

Master Lou Ann M. Pope

Date: October 16, 2013