Court File and Parties

COURT FILE NO.: 15-64809 DATE: 2017/03/22 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Carlos Bernal, Plaintiff AND The Centre for Spanish Speaking Peoples (CSSP), Legal Aid Ontario (LAO), Claudio Ruiz-Pilarte, Consuelo Rubio, Mary Ellen McIntyre, Silvana Venegas, Ronald Poulton and Carita Wong (Israel Foulon LLP), Defendants

BEFORE: C.T. Hackland J.

COUNSEL: Self-represented, Plaintiff Colin R. Dubeau, for the Defendant Carita Wong (moving party) J. Stanley Jenkins, for the Defendant Legal Aid Ontario (moving party) Alex van Kralinger and Katherine Chau, for the Defendants (moving parties), the Centre for Spanish Speaking Peoples, Claudio Ruiz-Pilarte, Mary Ellen McIntyre, Silvana Venegas, Consuelo Rubio and Ronald Poulton, for the Defendants

HEARD: In writing

Costs ENDORSEMENT

Overview

[1] The Defendants moved to strike portions of the Statement of Claim in this action and were successful in so doing. The Court’s reasons are reported at 2016 ONSC 7981.

[2] Because each of the moving parties was successful in obtaining the relief they sought, they are entitled to their costs. The only issues relate to the scale and quantum of the costs. I have received and reviewed written costs submissions from all parties.

The Defendant the Centre for Spanish Speaking Peoples (“the CSSP”)

[3] The CSSP and the individual defendants (except for Carita Wong) are represented by the same counsel, Mr. van Kralingen. These defendants are advancing a claim for costs of $28,801.43 on a partial indemnity rate or $39,684.46 on a substantial indemnity rate. It is their position that costs should be awarded on a substantial indemnity scale because the Plaintiff has conducted himself in an uncooperative, uncivil, and at times, offensive manner in his dealings with Defendants’ counsel.

[4] In support of this position, Mr. van Kralingen has filed a large volume of documentation, some of which does support the proposition that the Plaintiff’s behaviour has been less than professional. There is seldom any justification for unsubstantiated allegations of harassment and professional misconduct and the Plaintiff has been much too free with such allegations. On the other hand, the Plaintiff has sought and received accommodations for medical reasons – the same reasons which appear to be connected to events in the workplace which gave rise to this proceeding.

[5] In all the circumstances, I will exercise my discretion to award costs to the CSSP defendants on a partial indemnity scale.

[6] The quantum of costs claimed by the CSSP defendants is excessive in my view. This was essentially a pleadings motion. The Plaintiff’s special needs seem to have necessitated several case conferences before Case Management Masters in Ottawa. I do not think it was necessary for the Defendants’ counsel to attend personally rather than by teleconference and I disallow the airfare and hotel costs connected with those attendances.

[7] As several cases have pointed out, the court is not required to assess costs simply by multiplying the number of hours claimed by the hourly rates. This is but one factor. I am of the view that pleadings motions should normally attract conservative costs awards except in exceptional circumstances.

[8] I allow the CSSP fees in the sum of $12,000 plus applicable HST and disbursements in the sum of $1,000.

The Defendant Legal Aid Ontario

[9] This Defendant has submitted a very modest and appropriate claim for costs in the sum of $2,922 inclusive of HST and disbursements. I allow this amount as claimed.

Carita Wong

[10] Ms. Wong is an employment law lawyer. Her counsel submits that Ms. Wong ought to be awarded costs on a substantial indemnity basis, fixed at $28,781.59.

[11] Ms. Wong’s counsel submits that although substantial indemnity costs are generally only awarded where there has been reprehensible, scandalous or outrageous conduct on the part of a party, they may be ordered in cases where the allegations advanced are obviously unfounded, reckless or malicious, citing Khanna v. Royal College of Dental Surgeons (Ontario), (1999) 93 A.C.W.S. (d) 225. I respectfully agree with this proposition, particularly when such allegations are made against a professional person.

[12] Ms. Wong also relies on DiBattista v. Wawanesa Mutual Insurance, , [2005] O.J. No 4865, for the proposition that where unfounded allegations of fraud, dishonesty or other improper conduct that are seriously prejudicial to the character or reputation of a party are made, an award of substantial indemnity costs against the party making such unfounded allegations is appropriate.

[13] I struck the claim against Ms. Wong because it was baseless on the facts, as pleaded. The Plaintiff alleged in his Statement of Claim that Ms. Wong’s communications were “inflammatory” and “harassing” and her conduct was alleged to be vindictive, aggressive and abusive and in contravention of Law Society rules. I agree with Ms. Wong’s submission that the allegations against her were malicious and completely unsubstantiated.

[14] The Plaintiff’s allegations against Ms. Wong were in my view, so outrageous and unjustified as pleaded that costs should be awarded on a substantial indemnity basis in order to signal the Court’s displeasure with this behaviour and to deter it in future. Having said that, the case has only proceeded to the pleadings stage and it is not a complex matter. I therefore reduce the amount claimed.

[15] The Court will award costs to Ms. Wong in the sum of $20,000 inclusive of disbursements and HST.

[16] The Plaintiff is ordered to pay the costs awarded in this endorsement within 30 days.

Mr. Justice Charles T. Hackland

Date: March 22, 2017