CITATION: Liberty Mutual Insurance Company v. Donatelli, 2017 ONSC 5871
COURT FILE NO.: 17-61352
DATE: 2017-10-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Liberty Mutual Insurance Company and Liberty Insurance Company of Canada
Dwain C. Burns, for the Plaintiffs
Plaintiffs
- and -
Rose Venneri Donatelli, Michael Venneri, Professional Counselling Services and Comprehensive Health Clinic Inc.
Rose Venneri Donatelli and Michael Venneri, Self-Represented
Defendants
COSTS JUDGMENT
I. Introduction
[1] On May 17th, 2017, there were two motions before the court; a) the defendants’ motion to set aside the noting in default and default judgment in the proceeding, and b) the plaintiff’s motion to enforce an agreement between the parties dated April 3rd, 2016. The argument that day proceeded with respect to the defendants’ motion. The other motion by the plaintiff was not addressed. That omission came to light after the release of the judgment in the defendants’ motion of July 19th, 2017.
[2] Counsel were encouraged to see if agreement could be achieved with respect to the un-argued motion. Then counsel for the defendants advised the legal assistant to this court, that he would seek instructions. No further communications were received, aside from a request to extend the time for filing of costs submissions to the end of September which was acceded to.
[3] Those submissions have now been received. The submissions by the defendants are now directly from the defendants without aid of counsel. These submissions are somewhat problematic in that the corporate defendant, Professional Counselling Services and Comprehensive Health Clinic, purports to act in person. The Rules require that a corporation be represented by counsel or by an individual with leave of the court. Not wishing to delay matters, this costs judgment will be issued, taking into account what is submitted by the defendants but only with respect to the defendants’ motion to set aside. The other motion, as it was not argued May 17th, 2017, should be set for another date, unless the parties can resolve the matter.
II. Applicable Law Re Costs
Costs Generally
[4] Section 131(1) of the Courts of Justice Act R.S.O 1990 c.C-4 speaks of costs being in the discretion of the court, the court may determine by whom costs should be paid and to what extent. Costs awards are a means to ensure the efficient and fair operation of the system. As Justice LeBel stated in British Columbia (Ministry of Forests) v. Okanagan Indian Band, 2003 SCC 71 2003 3 SCR 37, para. 26:
Indeed, the traditional approach to costs can be viewed as being emanated by the broad concerns to ensure that the justice system works fairly and efficiently. Because cost awards transfer, some of the winner’s litigation expenses to the loser rather than them leaving each parties expenses where they fall (as is done in jurisdictions without costs rules). They act as a disincentive to those who might be tempted to harass others with meritless claims. Because they offset, to some extent, the outlays incurred by the winner, they make the legal system more accessible to litigants who seek to vindicate a legally sound position. These effects of the traditional rules can be connected to the court’s concern with over-seeing its own processes and ensuring that litigation is conducted in an efficient and just manner. In this sense, it is a natural evolution of the law to recognize the related policy objectives that are served by the modern approach to costs.
[5] Therefore, the discretion that is referred to is to be exercised in a fair and principled manner. Rule 57.01 continues to consider as factors: elements of bad litigation behaviour, i.e. the failure to admit that which should be admitted and behaviour that contributes to the prolongation of the matter or unnecessary expense. Obviously, one of the goals is to have litigation which is cost effective, not a function of playing “hardball”.
III. Analysis
[6] The judgment in the defendants’ motion was released July 19th, 2017. The judgment was quite critical of the litigation behaviour of the defendants.
[7] It was noted at one point that the defendants have a tendency to blame others. That tendency continues in the latest cost submissions; for example, counsel for the plaintiff recycles materials from previous motions, counsel is duplicating costs submissions from the past for which he has been compensated, counsel refuses to accept payment for costs, counsel by such a refusal has misled various courts, etc.
[8] The defendants also have a tendency to recycle complaints they have made in the past; namely, they were represented by a lawyer who was investigated by the Law Society and allowed to resign, they were represented by counsel who had conflicts of interest.
[9] According to the defendants, “Each and every judge in each and every court has made decisions against the defendants in the absence of any evidence in support of any allegations in the Statement of Claim”.
[10] The defendants proceed to re-litigate the very motion decided upon and raised the issue of past “wrongs in production” perpetrated by the plaintiffs.
[11] The defendants insist that the court review the merits of the Statement of Claim before ruling with respect to costs. All of this is typical of the defendants; they deflect by reverting back to prior decisions, and matters which have been thoroughly litigated.
[12] The defendants are relentless litigants. Perhaps they hope by endless repetition the rest of us will be convinced of the merits of their version. This is a case which merits the imposition of substantial costs, ref. Iannarella v. Corbett, 2015 ONCA 110, 2015 124 OR (3d) 523.
Quantum of Costs
[13] The Bill of Costs submitted by counsel for the plaintiff does contain some reference under the heading of “Motion Preparation” to “preparation of motion material with respect to our motion to enforce settlement”.
[14] Having reviewed the accompanying dockets, there were at least 13 hours dissipated with respect to the second motion to enforce the judgment, but they do not appear to have been transferred in their entirety to the Bill of Costs. Therefore, it is only that first reference referred to above which is with respect to the motion not argued.
[15] I consider it appropriate to deduct from the 7.9 hours claimed by counsel, 4 hours for that exercise; in other words, a deduction of $1,200.00 from the $2,370.00 claimed.
[16] The hourly rate of $300.00 presents as a modest substantial indemnity rate for a 23-year veteran.
[17] All other fees and disbursements claimed appear appropriate.
IV. Conclusion
[18] The defendants shall pay $11,050.00 plus HST for the costs of counsel for the plaintiff’s fees and the disbursements claimed, a total which I have rounded down to $13,500.00 to be paid forthwith.
WHITTEN J.
Released: October 4th, 2017
CITATION: Liberty Mutual Insurance Company v. Donatelli, 2017 ONSC 5871
COURT FILE NO.: 17-61352
DATE: 2017-10-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Liberty Mutual Insurance Company and Liberty Insurance Company of Canada
Plaintiffs
- and -
Rose Venneri Donatelli, Michael Venneri, Professional Counselling Services and Comprehensive Health Clinic Inc.
Defendants
COSTS JUDGMENT
ACRW:co
Released: October 4th, 2017