Court File and Parties
Court File No.: 16-68824, 16-68462 Date: 2016/09/07 Superior Court of Justice - Ontario
Re: Bruno Makoundi, Plaintiff And William Ndze Fuhgeh, Defendant
Before: Justice P. E. Roger
Counsel: Self-represented - Plaintiff Self-represented - Defendant
Heard: Motion heard on August 2, 2016 Submission on Costs heard on August 8, 2016
Endorsement on Costs
Overview
[1] The defendant brought a motion in each of these 2 actions seeking to strike the Statement of Claim, without leave to amend.
[2] The defendant was essentially successful as one of the actions was stayed (Action 16-68462) and the other action (Action 16-68824) was allowed to continue following substantial amendments as many parts thereof were struck.
Positions of the Parties
[3] The defendant, Mr. Fuhgeh, seeks costs on a partial indemnity basis.
[4] He alleges as a self-represented lawyer, he has lost significant income in working on these two matters entitling him to a favorable costs disposition. Although arguing that he would be entitled to costs on a substantial indemnity basis considering the allegations struck, he seeks costs on a partial indemnity basis for both these motions and as well costs on a partial indemnity basis for the earlier adjournment of these two motions.
[5] Mr. Fuhgeh seeks costs in the amount of $1,500 for the earlier adjournment of both motions. He argues that this adjournment was made necessary because the plaintiff failed to file any material for the earlier return date.
[6] Mr. Fuhgeh has filed an affidavit for both actions outlining his loss of income. He has also filed a costs outline seeking $20,805.54 for one action and $18,960.64 for the other action. He does not indicate the court file number to which each amount relates.
[7] With regards to the adjournment, Mr. Makoundi argued that he was unavailable at the scheduled date and that he suggested a number of alternative dates to the defendant. The defendant nonetheless insisted with proceeding on the scheduled date. Mr. Makoundi therefore seeks $1,000.00 for his costs relating to the adjourned motions.
[8] Mr. Makoundi argues that the materials of the defendant are lacking and repetitive. He indicates that three factums were filed on one of the motion with a number of affidavits that were not required. He alleges that the costs sought by the defendant are unreasonable. He seeks his own costs for the two motions and provided a cost outline for each in which he seeks $3,205 in action 16-68824 and $3,210 in action 16-68462.
Factors
[9] The factors to be considered when fixing costs are set out in Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and include in addition to success, the amount claimed and recovered, the complexity and importance of the matter, unreasonable conduct of any party which unduly lengthened the proceedings, the scale of costs and any offer to settle, the principle of indemnity, hourly rate claimed in relation to the partial indemnity rate, the time spent and the principle of proportionality, and the amount that a losing party would reasonably expect to pay.
[10] In this case, there is no doubt that the defendant was successful and that he is presumptively entitled to his costs.
[11] These are relatively complicated motions and these motions were no doubt important to the parties.
[12] In my view, the conduct of the defendant in refusing to adjourn the earlier motions was unreasonable. Lawyers and parties have a professional obligation to agree to reasonable adjournment requests. The request of Mr. Makoundi was reasonable and did not require the investigation, affidavits and steadfast refusal of the defendant. There was no urgency in proceeding with these motions and they could have been scheduled, as they were, to a reasonable alternative date.
[13] Moreover, the defendant was unreasonable and his conduct unduly complicated and lengthened these motions. The defendant filed an unreasonable amount of materials on these motions. There are countless affidavits and countless factums filed on each motion, none of which were particularly helpful. The defendant initially based his argument upon sections 5 and 6 of the Libel and Slander Act, R.S.O. 1990, c. L.12, neither of which is applicable to the circumstances of this case. This required the defendant to deliver an amended motion record, an amended factum and additional affidavits. For reasons unknown the defendant delivered another factum and when arguing the motion referred to all three factums, not one of which apparently contained the entire arguments in support of these motions. Further, the defendant did not at all attempt to discuss a resolution of these motions with the plaintiff and frankly some such efforts might have limited the scope of these motions.
[14] In addition, the amounts sought for the costs of these motions by the defendant are excessive and unreasonable. In addition, they grossly exceed what reasonable amount the unsuccessful party might have expected to pay.
Disposition
[15] Having considered all of the above, the plaintiff, Bruno Makoundi, is ordered to pay costs to the defendant, William Ndze Fuhgeh, in the amount of: a) $3,000 for fees plus disbursements of $600, inclusive of HST in Action 16-68462, for a total of $3,600; b) $3,000 for fees plus disbursements of $600, inclusive of HST in Action 16-68824, for a total of $3,600.
[16] There shall be no costs to either party for the earlier adjournment of these two motions.