COURT FILE AND PARTIES
COURT FILE NO.: 14-62160
DATE: 2015/08/25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Myles Fernandes, Plaintiff
AND:
Carleton University and BCE Inc., Defendants
BEFORE: Justice Patrick Smith
COUNSEL:
The Plaintiff was self-represented
Jamie Macdonald, Counsel for the Defendants
HEARD: via written submissions
ENDORSEMENT
[1] On June 10, 2015 I released my decision in the aforementioned case and requested written submissions on the issue of costs in the event that the parties were unable to resolve the issue themselves. Submissions were to be provided within 30 days following the release of my decision.
[2] I have received submissions form the defendants but nothing from the plaintiff. Given that 30 days from the release of my decision has long expired I assume that submissions from the plaintiff are not forthcoming.
General Principles of Costs
[3] An award of costs is a matter in the discretion of the court by virtue of s. 131(1) of the Courts of Justice Act, R.S.O. 1990, CHAPTER C.43 which provides:
Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in the proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.
[4] In Fong et al v. Chan et al, (1999), 1999 2052 (ON CA), 128 O.A.C. 2; 181 D.L.R.(4th) 614 (C.A.), the Ontario Court of Appeal set out three fundamental purposes of modern cost rules:
• to indemnify successful litigants for the cost of litigation;
• to encourage settlements; and
• to discourage and sanction inappropriate behaviour by litigants.
[5] Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 sets out the factors to be considered by a court when exercising its discretion under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The rule places emphasis on the result in the proceeding and any written offer to settle when considering the other factors enumerated in the rule.
[6] The text of rule 57.01(1) provides as follows:
57.01 (1) Factors in discretion - In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
• the amount claimed and the amount recovered in the proceeding;
• the apportionment of liability;
• the complexity of the proceeding;
• the importance of the issues;
• the conduct on any party that tended to shorten or lengthen unnecessarily the duration of the proceeding;
• whether any step in the proceeding was improper, vexatious or unnecessary, or
taken through negligence, mistake or excessive caution;
• a party’s denial of or refusal to admit anything that should have been admitted;
• whether it is appropriate to award any costs or more than one set of costs where a party commenced separate proceedings for claims that should have been made in one proceeding; or in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different solicitor; and
• any other matter relevant to the question of costs.
[7] An award of costs is a matter in the discretion of the court by virtue of s. 131(1) of the Courts of Justice Act, which provides:
131 (1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.
Discussion
[8] The Defendants claim substantial indemnity costs in the amount of $26,690.89 inclusive of fees, disbursements and HST. Alternatively, the Defendants claim partial indemnity costs in the amount of $18,027.45.
[9] The Defendants were completely successful. Carleton University successfully moved to strike the action as an abuse of process. BCE obtained summary judgment dismissing the claim.
[10] The allegations of improper conduct made by the plaintiff against both defendants were not supported by any evidence, were of a serious nature and were prejudicial to the reputation of both defendants.
[11] The proceeding against Carleton University was an abuse of process. The plaintiff should have pursued the issues through the academic appeal process and judicial review if necessary.
[12] On February 20, 2015, BCE offered to consent to an order granting summary judgment dismissing the plaintiff’s claim and awarding it costs in the amount of $2,000.00. This was a Rule 49 offer and should have been accepted by the plaintiff as it was a far better result than was ordered. The plaintiff had no case against BCE and should never have commenced the action.
[13] Costs are awarded to the defendants in the amount of $20,000.00 inclusive of fees, HST and disbursements.
Justice Patrick Smith
Date: August 25, 2015
COURT FILE NO.: 14-62160
DATE: 2015/08/25
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Myles Fernandes,
Plaintiff (Responding Party)
-and-
Carleton University and BCE Inc.,
Defendants (moving Parites)
ENDORSEMENT
P. Smith J.
Date: August 25, 2015