CITATION: Midwinter v. Matheson, 2016 ONSC 7701
COURT FILE NO.: 55394/14 (St. Catharines)
DATE: 20161216
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Karen midwinter (Plaintiff) v. sandy matheson a.k.a. sandy joseph matheson, IIROC a.k.a. INvestment industry organziation of canada, john Henry blacburn, dundee wealth management inc. and intregral wealth securities ltd. (Defendants)
BEFORE: The Honourable Mr. Justice R.A. Lococo
COUNSEL: Karen Midwinter, the Plaintiff (not represented)
Brendan Jones, for the Defendant, Sandy Matheson
Maureen Doherty, for the Defendant, Dundee Wealth Management Inc.
HEARD: By written submissions received April 19 to June 10, 2016
E N D O R S E M E N T – C O S T S
[1] Karen Midwinter is the self-represented Plaintiff in an action relating to the management of her investment portfolio. Earlier this year, she brought a motion for the production of certain documents by the Defendant, Dundee Wealth Management Inc., as well as for examination of the Affidavit of Documents of the Defendant, Sandy Matheson, for any errors or omissions. Shortly before that motion was scheduled to be heard by Justice Quinn on March 22, 2016, Ms. Midwinter notified defendants’ counsel and the trial co-ordinator by email that she was abandoning her motion.
[2] By endorsement dated March 22, 2016, Justice Quinn noted that Ms. Midwinter’s motion had been abandoned and that the matter of costs remained outstanding. Justice Quinn set a timetable for written costs submissions in the event that the defendants were seeking costs. Written costs submissions were subsequently received from counsel for each of Mr. Matheson and Dundee. On May 31, 2016, Ms. Midwinter provided extensive written material in response. Mr. Matheson and Dundee subsequently filed brief responding submissions through their respective counsel.
[3] In August 2016, the Regional Senior Justice assigned the adjudication of the costs issue to me, Justice Quinn having retired in May 2016. Based on my work schedule, I was unable to address the matter immediately. In any event, in May 2016, Ms. Midwinter had made an unopposed request for a deferral on the basis that she was in the process of settling the litigation. She renewed that request by emails dated September 9, 2016 and November 14, 2016. After the latter email, I notified the parties that in order to facilitate settlement, I was prepared to defer a decision beyond the end of November if a further deferral was not opposed. However, one of the defendants requested that I proceed with a decision on the matter of costs, stating that there had been no significant progress in settling the litigation. I subsequently received correspondence from Ms. Midwinter, in which she blamed defendants’ counsel for the lack of progress.
[4] I consider it appropriate to proceed with determining costs of the abandoned motion at this time, given the significant period of time that has elapsed since both Justice Quinn’s endorsement and Ms. Midwinter’s initial request for a deferral. In any event, a decision on the costs of the abandoned motion would not preclude settlement of the litigation as a whole, if it is otherwise attainable.
[5] In his costs submissions, Mr. Matheson is seeking costs against Ms. Midwinter fixed at $6,000 including disbursements and tax. In support of that amount, his counsel has provided a costs outline, indicating actual fees of $5,417.80 and disbursements of $395.65, for a total of $5,813.45. He is therefore seeking an amount greater than full indemnity costs. He requests that costs be payable within 30 days, as well as an order that Ms. Midwinter not be permitted to take any further steps in the action until the costs are paid in full.
[6] Mr. Matheson’s counsel argued that the requested costs award was justified, noting the following factors, among others: (i) Ms. Midwinter had abandoned the motion shortly before it was scheduled to be heard, after Mr. Matheson had already incurred the cost of responding material; (ii) Ms. Midwinter’s motion materials misstated the facts and were difficult to follow, resulting in further time spent responding to them; (iii) on two previous occasions, Ms. Midwinter had scheduled motions seeking essentially the same relief, but abandoned them before their return date; and (iv) without justification, Midwinter attempted to blame the other parties and the court staff for her abandonment of the motion.
[7] Dundee’s counsel has also filed a costs outline, indicating actual costs of $4,094.50 (not including HST), plus disbursements of $169.50. In its submissions, Dundee made essentially the same arguments as Mr. Matheson to support a costs award in Dundee’s favour, payable within 30 days. Dundee also requested that Ms. Midwinter’s claim be struck if she failed to comply with the costs order. In its costs submissions, Dundee also cited the difficulties caused by Ms. Midwinter’s scheduling motions without notice and without canvassing counsel’s availability. As well, Dundee noted that Ms. Midwinter was in breach of the timetable established by Regional Senior Justice Turnbull at the time that this action was transferred from Toronto to St. Catharines, which required that the action be set down for trial by September 30, 2015.[^1]
[8] In her costs submissions, Ms. Midwinter argued that she should not suffer any costs consequences as a result of abandoning her motion. Among other things, she claimed that the court was unable to accommodate various health-related issues and disabilities in hearing the motion, which led to her abandoning the motion. She also argued that she had done her best, as an unrepresented litigant with health issues, to coordinate with defendants’ counsel and respond to their requests for information. In her submission, she should not suffer costs consequences arising from any delays or additional costs that may have occurred.
[9] Rule 37.09(3) of the Rules of Civil Procedure[^2] provides that where a motion is abandoned, a responding party is entitled to the costs of the motion forthwith, unless the court orders otherwise. I see no sufficient justification for departure from the usual costs result in this case.
[10] In her costs submissions, Ms. Midwinter argued in particular that she abandoned her motion because the court was unable to accommodate her health difficulties by allowing the motion be heard by conference call. However, the material that Ms. Midwinter filed in fact indicates that court staff made good faith efforts to accommodate her. While she was not permitted to attend the motion by conference call (at the direction of the presiding judge), Ms. Midwinter was offered a number of fixed date appointments (one of which she in fact accepted) so that the motion would not have to be heard as part of the regular motions list. She was also offered frequent breaks in the proceedings as well as spreading the motion hearing over more than one day. Despite those accommodation attempts, she abandoned the motion on short notice to the parties and the court.
[11] It is also worth noting that Ms. Midwinter’s health had previously been a “significant factor” that supported her request for transfer of the action from Toronto to St. Catharines (where she resides), as indicated by Regional Justice Turnbull in his 2014 transfer endorsement.[^3] In my view, it is appropriate to view the court’s ongoing attempts to accommodate Ms. Midwinter’s health issues in that context.
[12] While I agree with defendants’ counsel that costs awards in their favour are justified in this case, I do not agree that any extraordinary costs sanction against Ms. Midwinter is appropriate. As noted by the Ontario Court of Appeal in Foulis v. Robinson,[^4] Mortimer v. Cameron,[^5] and McBride Metal Fabricating Corp. v. H & W Sales Co.,[^6] costs are usually awarded on a partial indemnity basis. Substantial or full indemnity costs are awarded only in the “rare and exceptional case”, based on egregious or reprehensible conduct that warrants sanction against the offending party.[^7]
[13] While I understand the defendants’ frustration at Ms. Midwinter’s multiple passes at bringing (and then abandoning) a motion seeking essentially the same relief, I consider it appropriate to take into account her self-represented status and acknowledged health issues in making the costs determination in this case. For the future, however, it is worth noting that there are limits to the extent to which parties may avail themselves of these considerations. In particular, the court’s procedural rules apply to all parties equally, whether or not they are represented by counsel.
[14] In order to determine the amount of partial indemnity costs for each defendant, I reviewed actual fees and disbursements set out in their respective costs outlines, and found them to be generally reasonable. In fixing the costs amount in each case, I took into account the factors set out in rule 57.01(1), including the experience and time spent by counsel as well as the amount of costs that an unsuccessful party could reasonably expect to pay. In any event, in fixing costs, the court is not strictly bound by the calculation of hours and time rates, as indicated by the Ontario Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario.[^8]
[15] In all the circumstances, I fix Mr. Matheson’s costs at $3,500 and Dundee’s costs at $2,500, in each case including disbursements and tax. Those costs are payable by Ms. Midwinter within 30 days.
The Honourable Mr. Justice R.A. Lococo
Released: December 16, 2016
Midwinter v. Matheson, 2016 ONSC 7701
COURT FILE NO.: 55394/14 (St. Catharines)
DATE: 20161216
SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN:
karen matheson.
Plaintiff
- and -
sandy matheson a.k.a. sandy joseph matheson, IIROC a.k.a. INvestment industry organziation of canada, john Henry blacburn, dundee wealth management and intregral wealth securities ltd.
Defendants
BEFORE: The Honourable Mr. Justice R.A. Lococo
COUNSEL: Karen Midwinter, the Plaintiff (not represented)
Brendan Jones, for the Defendant, Sandy Matheson
Maureen Doherty, for the Defendant, Dundee Wealth Management Inc.
ENDORSEMENT – COSTS
R.A. Lococo J.
Released: December 16, 2016
[^1]: Midwinter v. Matheson, 2014 ONSC 7436, [2014] O.J. No. 6175, at para. 8.
[^2]: R.R.O. 1990, Reg. 194.
[^3]: Supra note 1, at para. 5.
[^4]: (1978), 1978 CanLII 1307 (ON CA), 21 O.R. (2d) 769 (C.A.).
[^5]: 1994 CanLII 10998 (ON CA), [1994] O.J. No. 277, 17 O.R. (3d) 1 (C.A.).
[^6]: 2002 CanLII 41899 (ON CA), [2002] O.J. No. 1536, 59 O.R. (3d) 97 (C.A.).
[^7]: Ibid. at para. 38.
[^8]: 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634, 71 O.R. (3d) 291 (C.A.), at para. 26.