BARRIE COURT FILE

COURT FILE NO.: CV- 08-0567

DATE: 20150710

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MICHAEL JOHN PICAVET

Plaintiff

– and –

ELIZABETH PEARL MARIE CLUTE, NICOLE MARIE STELLA and LORMEL DEVELOPMENTS (BRADFORD) LTD.

Defendants

No one attending, for the Plaintiff

J. Ralston, for the Defendants

HEARD: July 10, 2015

COSTS ENDORSEMENT

HEALEY J.

[1] This endorsement deals with costs of this action. Following a 14-day trial, the action was dismissed in its entirety: Picavet v. Clute, 2012 ONSC 2221. The defendants seek their costs of successfully defending the action.

[2] The date for oral cost submissions in the matter was set on September 26, 2014. However, Mr. Picavet, who is now self-represented, did not attend the hearing. In an email exchange with the trial co-ordinator leading up to the hearing date, Mr. Picavet indicated that he would not be attending in person, by the following message:

To Whom It May Concern:

As much as I was looking forward to arguing the motion for costs from a trial in which an impeached individual and admitted liar's testimony was found to be somewhat credible enough to put me in the predicament I'm in, I regret to inform you that I'm not able to attend the court on Friday. I am stuck out of the country with no money to purchase a flight as I've barely been able to get by purchasing food for my son and I.

If the motion is to be heard. I would like to canvass the possibility of somehow skyping in on the hearing so I can argue my case. If somebody could get back to me regarding whether or not it is possible, that would be great.

If not, I will author my court address in writing.

Regards,

Michael Picavet

[3] In an attempt to accommodate a self-represented individual who alleges impecuniosity, on July 8, 2015, I directed the trial co-ordinator to advise Mr. Picavet that this court was willing to allow him to make written submissions. He was expressly directed to provide a copy to opposing counsel, Mr. Ralston.

[4] Mr. Picavet did provide such written submissions via email to the trial co-ordinator on the morning of the hearing, and deliberately chose not to provide those submissions to opposing counsel as directed by this court. When the trial-coordinator inquired whether he had done so, the body of his e-mail response stated:

No I haven't shared it with Ralston. As he hasn't shared a written version of his address to the court, I thought it wasn't necessary and would put me at a disadvantage before the court as it would give him more time to prepare and respond to the various segments of my argument and requests.

[5] Despite the fact that this matter has remained before the court for the determination of costs since 2012, Mr. Picavet has not provided his current address to either the court or to Mr. Ralston. Mr. Ralston took all available steps to serve Mr. Picavet with his cost submissions on February 27, 2015, by sending a copy by mail to his former counsel of record, by sending a copy by mail to Mr. Picavet's last known address, and by sending a copy to Mr. Picavet's email address. The affidavit of service attaches a successful delivery notification to that email address.

[6] Accordingly, I find that Mr. Picavet has been duly notified of the date for this hearing and received the defendants' costs submissions well in advance of the hearing date.

[7] Mr. Picavet's written submissions were unhelpful to the court in deciding the issue of costs, in that:

(1) he asks the court to review and reverse credibility findings and findings of fact made at trial;

(2) the contents were scandalous and vexatious in that he alleges perjury on the part of his mother at trial, where no such finding exists, and criticizes the results of the adjudicative process, attempting to cast aspersions on the trial judge and attempting to bring the administration of justice into disrepute; and

(3) his submissions are unresponsive to the defendants' submissions in respect to quantum, scale of costs, or the grounds for awarding costs.

[8] The defendants' Bill of Costs and written submissions fully address the factors that this court must review under Rule 57.01(1), and this court finds no inaccuracies with the facts as set out therein, nor does it take issue with the propositions advanced in support of the claim for costs.

[9] In particular, I find that:

(1) the attendance of Mr. Boswell at trial was a reasonable necessity arising solely from the plaintiff's written statement that he would be calling his sister, Monique Pretty, as a witness at trial. His refusal to communicate any withdrawal of that intention during the course of the trial, until he had closed his case, increased costs unnecessarily;

(2) Mr. Picavet's reasonable expectation of costs would be informed by his own counsel's actual hourly rate of $715/hour, and his own attempt to recover costs of successfully defending a motion to consolidate this action with a related proceeding between Monique Pretty and Elizabeth Clute, in which he sought costs of $6,513.25;

(3) Mr. Picavet asserted alternative relief by way of constructive and equitable trust which he did not pursue at trial, but opposing counsel was never advised beforehand that this alternative relief was abandoned, causing costs to be unnecessarily incurred for preparation;

(4) Mr. Picavet's examination-in-chief took 6 days, largely due to the number of documents filed by him as exhibits, and his insistence that it was necessary to refer to almost every document individually during his testimony;

(5) it was reasonable for both senior and junior counsel to be present to conduct the defence of this trial given its complexity and sheer number of documentary exhibits; and

(6) the disbursements relating to the use of experts to review the plaintiff's claim that his efforts had increased the value of the land, and the obtaining of related reports, was reasonable even if ultimately not relied on by the defendants because of the plaintiff's abandonment of his trust claims.

[10] The defendants served a Rule 49.10 offer to settle on November 2, 2011. The cost consequences of Rule 49.10 are brought into play by this offer, which was served by the defendants more than seven days before trial, and in comparison to which the trial outcome was more favorable, in that the defendants offered to pay $1 million to settle the action. Accordingly, the defendants should have their costs on a partial indemnity basis to the date of the offer, and on a substantial indemnity basis thereafter, there being no reason to depart from such outcome. However, I agree that the costs incurred to have Mr. Boswell attend could have been easily avoided and were driven by Mr. Picavet's desire to increase costs for the defendants. Such motives should be responded to with an award of full recovery costs in relation to Mr. Boswell in order to express the court's view of such a litigation strategy.

[11] There are some aspects of the defendants' Bill of Costs which are problematic. One is that no costs should be permitted for the appeal with respect to the ruling regarding amendment of pleadings, as the ultimate consent order made in the Court of Appeal does not reserve costs to the trial judge. The second is that the amount of time spent on some steps is excessive. Specifically, a total of 55 hours combined for junior and senior counsel in relation to all matters connected with this costs hearing is high, even with the multiple attempts necessary to finally schedule the matter given Mr. Picavet's reluctance to make himself available. However, no other categories of entries are particularly excessive, given the complexity of the matter and the importance of the issues at stake to the defendants.

[12] Reducing the time spent on the costs hearing by 50%, and eliminating the costs related to the appeal, results in total fees of $742,634.50 plus HST of $96,542.49, for a total of $839,176.98. No adjustment to disbursements is required on review. Those disbursements total $32,562.32 inclusive of HST.

[13] While this costs figure is high, the totality of the circumstances of this litigation, evaluated in the context of the Rule 57.01 (1) factors, is a fair and reasonable amount of costs that the plaintiff should have reasonably anticipated would be awarded against him if his action was not successful.

[14] Accordingly, this court orders that the plaintiff, Mr. Picavet, shall pay to the defendants costs of this action fixed in the amount of $871,739.30.

Healey J.

Released: July 10, 2015