SUPERIOR COURT OF JUSTICE - ONTARIO

RE: IRVIN RIOPELLE, appellant

AND

TRUCASH REWARDS, INC., TRUCASH REWARDS LIMITED,

DCR STRATEGIES INC., DIANA FLETCHER and

HUGUETTE MASSE, respondents

BEFORE: F.L. MYERS J.

COUNSEL: S. Tripodi, for the appellant

B. Sells, for the respondents

HEARD: March 27, 2014

COSTS endorsement

[1] On March 27, 2014 I gave oral reasons for dismissing the plaintiff’s appeal from the Order of Master Muir dated December 9, 2013. In my reasons I rejected an argument made by counsel for the appellant that Rule 4 of the Rules of Professional Conduct of the Law Society of Upper Canada (the “Rules of Ethics”) required or supported the noting in default of represented defendants among other aggressive and inappropriately technical positions adopted before the Master and then before me. I found that the Rules of Ethics do not exist in a vacuum and have to be read and understood in conjunction with the Principles of Civility and the Rules of Civil Procedure. I found that the Rules of Ethics did not compel or support the positions taken by the appellant here and below.

[2] I then heard costs submissions from counsel for the respondents. Prior to responding, the appellant’s counsel said that in light of the piece of my ruling in which I rejected his argument, he required time to consult with his client and may recommend that his client obtain independent legal advice on costs in case the client could have a claim against him. I confirmed that I made no holdings against counsel, but had just given my reasons in response to an argument that he made. Nevertheless, I adjourned the costs argument on the basis that the appellant would have two weeks (to April 10, 2014) to deliver written submissions addressing the issues of whether costs on a partial indemnity basis should follow the event and quantum.

[3] On April 8, 2014, I received a letter purportedly from the appellant personally dated April 9, 2014. The letter did not show any copies having been sent to his counsel or opposing counsel. In his letter, the appellant said that he is trying to retain a lawyer to assist him with his costs submissions. He then asked for a copy of my reasons and wrote, “I would like to meet with a lawyer to review your decision with him so that I can prepare my costs submissions.” My secretary left Mr. Riopelle a voicemail message on April 9, 2014 advising him to contact the Court Reporter’s Office to order a transcript of my decision.

[4] On April 11, 2014, my secretary sent an email to Mr. Riopelle that was copied to counsel for the parties. The email reiterated that a transcript of my reasons can be obtained from the Court Reporter and that his counsel would know how to do that. My secretary also advised that it was not appropriate for a party to communicate with a Judge in the manner of his letter. The email provided a copy of Mr. Riopelle’s letter to counsel.

[5] I received no submissions by the appointed time of April 10, 2014. I received no indication that new counsel has been retained. The two weeks has come and gone and I received no request for an extension of time. The timing and content of Mr. Riopelle’s letter provides no basis to wait further.

[6] I order the appellant to pay costs of $15,000 to the respondents jointly and severally inclusive of HST and disbursements. This appeal was heard due to the plaintiff’s insistence on proceeding aggressively. The plaintiff’s counsel took no heed of the decision of Firestone J. which labelled as “unreasonable” the very approach adopted throughout this case. I am hesitant to lay the results of counsel’s overzealous approach at the feet of the plaintiff. But neither should the respondents bear extra costs due to the plaintiff’s conduct. Costs are sought by the respondents on a substantial indemnity basis of $27,898.29. Partial indemnity costs of $18,724.95 are also claimed on the respondents’ costs outline. I am satisfied that the plaintiff's appeal necessitated research to be done and time to be spent preparing the factum and for argument. Costs of $15,000 are amply supported by dockets showing time reasonably incurred to dot the I’s and cross the T’s in light of the plaintiff’s technical approach.

F.L. Myers J.

Date: April 11, 2014