Superior Court of Justice - Ontario

Court File No.: CV-12-466988
Date: 2013-12-17

RE: George Schwartz, Plaintiff

– AND –

Her Majesty the Queen in Right of Ontario, The Ontario Securities Commission, The Attorney General of Ontario, Howard I. Wetston, Thomas Atkinson, Karen Manarin, Lori Toledano and Wayne Vanderlaan, Defendants

Before: E.M. Morgan J.

Counsel:
George Schwartz, in person

Freya Kristjanson and Paloma Ellard, for the Defendants, The Ontario Securities Commission, Howard I. Wetston, Thomas Atkinson, Karen Manarin, Lori Toledano and Wayne Vanderlaan

Nadia Laeeque, for the Defendants, Her Majesty the Queen in Right of Ontario and the Attorney General of Ontario

Heard: October 17, 2013, with subsequent written submissions on costs

Costs Endorsement

[1] On November 22, 2013, I released my endorsement in which I dismissed the Plaintiff’s action in its entirety. At that time I invited the parties to make written submissions on costs. I have now received submissions from the Defendants, The Ontario Securities Commission, Howard I. Wetston, Thomas Atkinson, Karen Manarin, Lori Toledano and Wayne Vanderlaan (the “OSC”) and from the Plaintiff. I have not received any submissions from the Crown and Attorney General of Ontario, and I assume that since they played a small role in the motion they have decided to make no request for costs.

[2] Ms. Kristjanson, on behalf of the OSC, requests costs on a partial indemnity basis. Her Bill of Costs comes to a total of $48,365.89, including fees of $35,641.60, disbursements of $7,160.07, and HST of $5,564.22. Given the experience of counsel, the complexity of the issues, the amount of research and complex legal argument involved in this motion, and the complete success of the OSC, this is not an unreasonable request. The time spent by counsel for the OSC was worthwhile and Ms. Kristjanson’s written and oral submissions were very helpful to the court.

[3] The Plaintiff’s response is that he has too little money to pay the costs requested by the OSC. He has produced in his costs submissions a copy of his and his spouse’s 2012 income tax return to show that they have little income and substantial debts. The final paragraph of the Plaintiff’s written submissions on costs states:

Your Honour, I am not in a position to pay even the partial indemnity generously requested by the successful litigants. I believe that I acted reasonably throughout the matte, and pleaded in terms of maintaining the integrity of the administrative of justice, more so than advancing my particular case. For these reasons I respectfully ask that you decline to award costs in this matter.

[4] I am cognizant of the fact that, as D. M. Brown J. noted in Sutherland v Manulife, 2011 ONSC 1170, at para 8, “[i]t is appropriate for the court to consider the financial ability of the party to pay an award of costs and the consequences of making or not making the award to the parties.” I am equally aware that the Court of Appeal has advised that in order to deprive a successful party of its costs I must be convinced that this is “one of those rare cases in which the court should exercise its discretion to make no costs award in respect of the trial of this matter.” Belvedere v. Brittain Estate, 2009 ONCA 691, at para 8.

[5] Needless to say, I have sympathy for the plight in which the Plaintiff finds himself. He has accrued considerable debt, including a substantial amount of back taxes, interest, and penalties imposed by the Canada Revenue Agency. A costs award will doubtless be a difficult economic burden on him.

[6] The Plaintiff’s carriage of the case did not itself create unnecessary burdens on his opponents. His relationship with opposing counsel was by all appearances civil, and considering that he represented himself and is not a lawyer his legal research and argumentation were rather sophisticated.

[7] That said, the action itself was not only ill-conceived, it was repetitive of ill-conceived arguments that he had already advanced in other forums. At paras 52 of my November 22nd endorsement, I quoted Arbour J. in Toronto (City) v Canadian Union of Public Employees, Local 79, 2003 SCC 63, [2003] 3 SCR 77, at para 38-39, to the effect that, “that there be an end to litigation and that no one should be twice vexed by the same cause”. I then indicated that, at para 53, that:

Depending on how one counts up the prior proceedings here, the Defendants (taken as a group) have been vexed at least four times by the same cause. There certainly needs to be an end to the litigation over the question of whether the Plaintiff breached a Cease Trade Order that was at the time valid and in force.

[8] The Plaintiff has put the Defendants through a repetitive legal ordeal for no good reason. He has been told on several previous occasions, in as authoritative a way as possible, that there is no merit to his argument about the Cease Trade Order that he breached. I note that in his costs submissions here, he is still not convinced of the need to put an end to the litigation over this matter. In the penultimate paragraph of his submissions to me, he states: “I believe the administration of justice would be brought into disrepute if this matter and the cease trade issue are not resolved at the Supreme Court of Canada level.”

[9] It is, of course, the right of any litigant to appeal or to seek leave to appeal a ruling, and I do not begrudge the Plaintiff his exercise of that right. However, once one loses a case four or five times the way the Plaintiff has done here, the need for a costs award to drive home that the litigation has been fruitless is even more pressing than in the usual case of a single adjudication. The Plaintiff cannot continue burdening the Defendants with repetitive litigation of the same issue without bearing some responsibility in the form of costs, regardless of how dire his financial position might be.

[10] I will exercise my discretion to award the OSC Defendants one-half of what they seek in fees, with applicable HST, plus their full disbursements. That division reflects an effort to take into account the Plaintiff’s financial difficulties while still partially compensating the OSC for having had to defend against repeat legal attacks by the Plaintiff.

[11] The Plaintiff shall pay the OSC $17,820.80 in respect of fees, plus $7,160.07 for disbursements, and $2,316.70 in respect of HST, for a total costs award of $27,297.57.

Morgan J.

Date: December 17, 2013