CITATION: Weidenfeld v. Parikh-Shah et al, 2017 ONSC 2145

NEWMARKET COURT FILE NO.: CV-16-128021-00

DATE: 20170405

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Robert Weidenfeld Plaintiff

– and –

Sejal Parikh-Shah as Executor of the Will and Trustee of the Estate of Hana Weidenfeld, deceased, Nathalie Weidenfeld, Joel Weidenfeld, Robert Andrew Leck, Stiver Vale (law Firm) Defendants

Self-represented

Allen Gerstl, for the Defendants, Sejal Parikh-Shah as Executor of the Will and Trustee of the Estate of Hana Weidenfeld, deceased, Nathalie Weidenfeld, Joel Weidenfeld

Ian Epstein for the Defendants, Robert Andrew Leck and Stiver Vale (law Firm)

HEARD: In writing

RULING ON COSTS

sutherland J.:

Overview

[1] On February 15, 2017, I heard two motions. One brought by the defendants, Robert Andrew Leck and Stiver Vale (law Firm) (moving defendants) for security for costs against the plaintiff, and the other brought by the plaintiff to seek permission to participate on the motion by teleconference and any subsequent hearings, and an order confirming the plaintiff is an impecunious litigant.

[2] I found for the moving defendants and ordered security for costs. I also invited all parties to provide written submissions on costs, if they are unable to agree. The parties were unable to agree and I have received written submissions from the moving defendants and the plaintiff.

[3] I initially received written submission from the plaintiff requesting that I set aside my order granting security for costs with no submission on the issue on the costs requested by the moving defendants. In my endorsement dated March 15, 2017, which was sent to the parties, I allowed the plaintiff until March 27, 2017 to provide any submission he wished for the court to consider on the issue of costs requested by the moving defendants. I also indicated that if the plaintiff wished to seek relief of setting aside my order, he must bring the appropriate motion and serve said motion on the parties.

[4] Before March 27, 2017, I did receive submissions from the plaintiff on the costs requested by the moving defendants, and I also received a letter dated March 27, 2017 from the plaintiff which enclosed correspondence between the plaintiff and counsel for the moving defendants dated March 19, 2017 and March 22, 2017.

[5] Below is my decision on the costs requested by the moving defendants.

Position of the Parties

[6] The moving defendants are requesting costs in the amount of $10,000 inclusive of HST and disbursements, even though on a substantial indemnity basis the moving defendants submit they incurred costs in the amount of $13,331.31. The moving defendants submit that it was the successful party on the motion. The moving defendants further submit that the conduct of the plaintiff should be sanctioned and discouraged, given his inappropriate conduct and allegations of inappropriate conduct on the part of counsel for the moving defendants which include, obstruction of justice, total disregard of the Rules of Professional Conduct and that counsel had forgotten his duty to the court “to act in good faith, truthfully, honestly and inconsonance with the fundamental principles of justice which prohibits any obstruction of justice”.

[7] The plaintiff in response provided the court an affidavit dated March 24, 2017, attaching his “confidential documents” of his financial status. The plaintiff submits that he is impecunious. He states his precarious financial situation is because,

… of my prolonged financial rape, from about 1992 to the present, by my late ex-wife and her various lawyers in Fredericton, New Brunswick, Toronto and Newmarket. And sadly, my two adult children, ages 27 and 25, for whom I cared all their lives and have sacrificed my personal life for their benefit, decided to continue the same after estranging themselves from me ever since their mother died in May 2016. [^1]

[8] Thus, if I understand the plaintiff’s submissions correctly, he is not opposing that the moving defendants were the successful party based on my decision but submits that the decision should be set aside and that he does not have the financial means to pay costs.

Legal Principles

[9] Pursuant to the Rules of Civil Procedure[^2], namely Rule 57.01(2), a presumption exists that costs should be awarded to the successful party. Rule 57.01 sets out factors the court may take into consideration when the court exercises its discretion to award costs.

[10] Rule 57.01(4) provides that nothing in Rules 57.02 to 57.07 affects the court’s authority to award costs under section 131 of the Courts of Justice Act[^3]. The sub rule sets out five ways the court can award costs.

[11] In Serra v. Serra,[^4] the Court of Appeal has confirmed that the modern costs rules are designed to encourage and foster three fundamental purposes, namely to partial indemnify successful litigants for the costs of litigation, to encourage settlement and to discourage and sanction inappropriate behaviour by litigants, bearing in mind that the award should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party.

[12] Further, the Court of Appeal also confirmed[^5] that when assessing costs it is not simply a mechanical exercise. It is not simply a calculation of hours spent and hourly rates but the court is to take a proportional methodology. The overall objective is to fix an amount of costs that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case.

[13] The court has the authority to take into consideration the financial means of the prospective payer of costs. However, the alleged impecuniosity of a prospective payer of costs creates numerous practical issues. How is the impecuniosity proven? Are examinations in aid of execution permitted to test the truthfulness of the alleged impecuniosity? Further, a prospective payer of costs cannot use their lack of financial means as a shield to avoid a cost award.[^6]

Analysis

[14] The moving defendants are entitled to costs. The moving defendants was the successful party on the motion.

[15] As stated in my endorsement dated March 15, 2017, I am not entertaining the request of the plaintiff to reconsider my decision and to set aside my order for security for costs. If the plaintiff wishes to seek an order to set aside my decision, he must bring the appropriate motion to do so or seek the proper leave to appeal my decision. The purpose of this inquiry is on the issue of costs and the quantum of costs as requested by the moving defendants.

[16] Having reviewed the submissions and bill of costs of the moving defendants, I note that the moving defendants is seeking 46.4 hours of work between two counsel: 14 hours for Mr. Epstein and 32.4 hours for Mr. Inkol. The work outlined includes drafting of motion material, factums, research, and preparation. On a substantial indemnity basis, the fee requested is $10,387.80 plus HST and disbursements in the amount of $525.25.

[17] Although the court does not condone the vocabulary used and allegations made by the plaintiff in his material and factum as against the counsel for the moving defendants, this conduct, in my opinion, does not reach the point that costs on a substantial indemnity basis should be ordered. However, I have taken such conduct into consideration in determining the fair and reasonable amount of costs the plaintiff should pay in the circumstances of this matter.

[18] Dealing with the allegations of the plaintiff of his financial situation, I may have sympathy for the plaintiff for his predicament, but I do not agree that his financial situation, in light of his conduct in this matter and his history of litigation, supports his request that no costs award should be given.

[19] The plaintiff is well versed with litigation. He has a history of not providing a court with his financial information to shield his exposure. I suspect that if the plaintiff was the successful party on the motion he would be requesting substantial costs from the moving defendants.

[20] The plaintiff is well aware that in our adversarial legal system there are cost consequences. As D.A. Wilson J. stated in Mark v. Bhangari:

[10] Parties cannot expect to be immune from an order of costs based on their limited financial resources. If this were the case, parties would be free to conduct litigation as they wished without fear of reprisal in the form of adverse costs orders and this would be contrary to the philosophy of the Rules as well as to their requirements. Mr. Mark chose to “roll the dice” on the summary judgment motion and he lost. He must now bear the cost consequences of his decision.

[21] The plaintiff chose to attend the motion without providing the necessary evidence to reveal his financial situation; that is, to support his argument that he was impecunious. He must now bear the cost consequences for that decision.

[22] Accordingly, I find that a reasonable and fair amount for the plaintiff to pay in costs is $7,500 inclusive of HST and disbursements.

Disposition

[23] For the reasons given, I order that the plaintiff shall pay costs to the moving defendants, Robert Andrew Leck and Stiver Vale (law Firm) the sum of $7,500 inclusive of HST and disbursements, to be paid within 90 days.

Justice P.W. Sutherland

Released: April 5, 2017

[^1]: Affidavit of Robert Weidenfeld dated March 24, 2017, at para. 14. [^2]: R.R.O. 1990. Reg. 194. [^3]: R.S.O. 1990, c. C.43. [^4]: Serra v. Serra, 2009 ONCA 395, [2009] O.J. 1905 (C.A.). [^5]: Boucher et al. v. Public Accountants Council for the Province of Ontario, [2004] No. 2634 (C.A.); Delellis v. Delellis, 2005 36447 (ON SC), [2005] O.J. No. 4345; Fong v. Chan, [1997] OJ 949 (CA). [^6]: Myers v. Metropolitan Toronto Chief of Police, 1995 11086 (Ont. Div. Ct); Szpakowsky v. Kramar, 2014 ONSC 5249; Mark v. Bhangari, 2010 ONSC 4638; Miaskowski v. Persaud, 2015 ONSC 2776.