SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Tanfi Limited, Plaintiff
AND:
James Harold Frederick Slade and Nancy Slade, Defendants
AND BETWEEN:
James Harold Frederick Slade and Nancy Slade, Plaintiffs by Counterclaim
AND:
Tanfi Limited and Frank Manzo, Defendants to the Counterclaim
BEFORE: Madam Justice Kristjanson
COUNSEL: James Slade, In Person
Syed Abid Hussain, for Frank Manzo and Tanfi Limited
HEARD: In writing
costs ENDORSEMENT
1This is a decision on costs following the withdrawal of a summary judgment motion on a counterclaim brought by the defendants and plaintiffs by counterclaim, James and Nancy Slade, against mortgage broker Frank Manzo (“Manzo”) (2016 ONSC 6793). The relief sought was not restricted to the Manzo counterclaim, but directly affected Tanfi Limited as well, formerly the plaintiff on the main claim. Tanfi previously obtained judgment against the Slades on the main claim, and the relief sought in the motion collaterally attacked the judgment obtained by Tanfi on the main claim.
2As the motion was brought without the authority of Mrs. Slade, the co-plaintiff on the Manzo counterclaim, which ultimately led to the withdrawal of the motion by Mr. Slade, I also make orders prohibiting Mr. Slade from purporting to represent Mrs. Slade in the future.
3This is also a decision on a request for directions by both Tanfi and Manzo that Mr. and Mrs. Slade are not allowed to bring any further action/motion before any court until they have paid outstanding costs awards.
Background
4Justice Myers granted summary judgment to Tanfi on its claim against the Slades following a mini-trial. He awarded judgment to Tanfi for moneys owed by the Slades on two mortgages, costs, authorized a writ of possession, and dismissed the Slades’ counterclaim against Tanfi: Tanfi Limited v. Slade et. al., 2015 ONSC 778. That decision was released on February 3, 2015, and was subsequently appealed.
5While the decision was under appeal Justice Stinson ordered that no steps should be taken to enforce the judgment of Justice Myers, and he stayed the writ of possession obtained by Tanfi. Justice Lederer extended the stay of the writ of possession until the Court of Appeal’s decision. Justice Myers’ decision was affirmed on appeal (Slade v. Tanfi Limited, 2016 ONCA 326), on April 29, 2016.
6The motion was originally scheduled for a half-day on October 13, 2016. The motion was argued for a half-day but additional time was needed and the court arranged to sit for a full day to finish the argument. After the lunch break, Mr. Slade requested an adjournment due to illness. During the adjournment, Mr. Slade advised the Court that he was withdrawing his motion since his wife, the co-claimant, did not approve of him bringing the motion. He now takes the position that the matter is better determined by trial, not summary judgment.
7The Slades have two significant costs awards that remain outstanding. These are the costs awards relating to the February 3, 2015 decision of Myers J. ($26,000.00) and the Court of Appeal costs award ($25,000.00 as at April 29, 2016), both with interest. These costs awards both relate to the summary judgment motion brought by Tanfi. Tanfi is entitled to enforce these costs awards.
8In the motion for directions, Tanfi/Manzo requested that Mr. or Mrs. Slade “should not be allowed to bring any further action or motion before any court until they have paid the outstanding costs awards.” In my November 1 Order, I set a timetable and asked the parties for written submissions on this issue. In that timetable and order, I directed that Mr. and Mrs. Slade were not allowed to bring any further action/motion before any court until they paid the outstanding costs awards.
Facts
9The affidavit evidence filed by Tanfi/Manzo in their costs submissions and motion for directions demonstrates a proliferation of litigation even after the Court of Appeal’s decision on April 29, 2016, including numerous attendances relating to scheduling what eventually became the October 2016 motion heard by me.
10Based on representations made by Mr. Slade to staff at Civil Practice Court, the CPC scheduled an urgent summary judgment motion on May 19, 2016. Mr. Slade wrote to CPC Staff in support of his urgent summary judgment motion that: “This original matter has gone through 2 summary judgment motions with differing opinions with no appeal of Justice Stinson endorsement of 2012.” This is misleading, to say the least, since Justice Stinson in 2012 declined to grant summary judgment, but in 2015 Justice Myers granted summary judgment against the Slades in a decision upheld by the Court of Appeal in April, 2016, one month before Mr. Slade made this representation to CPC staff.
11The representations by Mr. Slade to CPC staff for the urgency of the motion include some matters which Tanfi/Manzo assert are “completely false statements”, including the allegations that “One party is believed to be filing for bankruptcy” and “One party is moving.” No evidence was filed by the Slades to support these statements.
12Tanfi, in response to the urgent summary judgment motion scheduled for May 19, 2016, served and filed responding motion material, and served a Rule 49 Offer to Settle on May 11, 2016, for $1,000.00. Ultimately, Mr. Slade did not confirm his motion, but did not tell Mr. Hussain, counsel for Tanfi/Manzo. Mr. Hussain thus attended on May 19, and found out the motion was not on the list. Mr. Slade apologized and stated in an e-mail “I will gladly pay your costs”, although no costs were paid.
13On May 20, 2016, Mr. Slade attended CPC to schedule the motion on the Manzo counterclaim. In his responding costs submissions Mr. Slade states that “Justice McEwen ordered the matter first to Justice Myers and then to Justice Stinson.” This is not correct, as the May 20, 2016 endorsement of Justice McEwen clearly states:
Mr. Slade submits that Stinson J. should be involved as he also dealt with a S.J. motion earlier. It is difficult to understand this complex case. As a first step the parties shall appear before Myers J.
14On May 24, 2016, Mr. Hussain wrote to Justice Myers’ assistant as Justice McEwen had directed, requesting a case conference with Justice Myers, including to deal with order of Justice Stinson staying the writ of possession. The same day, Mr. Slade wrote by e-mail to Justice Myers’ assistant asserting that Mr. Hussain did not represent Mr. Manzo (which was incorrect); and stating that:
If Justice Myers is unavailable to reinstate the summary judgment motion within 5 days, we will attend CPC to reschedule the matter. The judge at CPC on Friday had an appointment at 11 am and thought it best to return to Justice Myers as Mr. Hussain made it out to be complicated.
15In his responding costs submissions Mr. Slade misrepresents the May 24, 2016 endorsement of Justice Myers, stating incorrectly that:
Justice Myers was contacted and responded with an e-mail that explained the situation. Justice Myers said that only the counterclaim with Tanfi was dealt with by him and he was not ceased of the matter and was no longer involved in the action.
16This is not what Justice Myers ruled. On May 24th, Justice Myers issued a typed endorsement (Tanfi Limited v. Slade, 2016 ONSC 3408), stating at paras. 2 and 4:
2 The Slades now wish to bring a motion for summary judgment on their counterclaim or claim-over against Mr. Manzo who was the mortgage broker on their mortgage transaction with the plaintiff. I know the background and have heard oral evidence of both Mr. Slade and Mr. Manzo on the merits of the mortgage debt issue. The evidence touched upon aspects of the Slades' claim-over against Mr. Manzo in passing.
4 Since Mr. Manzo was not copied on Mr. Slade's communication, I am not inclined to take any step in relation to the proposed motion. I am sitting on Civil matters in the fall commencing September 6, 2016. The motion may be booked before me for less than 2 hours through the Motions Office in the ordinary course. The moving parties should serve and file their motion materials and confirm the motion in accordance with the Rules of Civil Procedure and the applicable Practice Direction.
17Justice Myers also addressed the writ of possession, and the stay originally ordered by Justice Stinson and extended by Justice Lederer at paras. 8-11:
8 I see no reason to convene a Case Conference or to hear anything further on this issue. The Court of Appeal was abundantly clear in para. 7 of its reasons, reported at 2016 ONCA 326 (Ont. C.A.), that "[i]t is time for the respondent to receive the money the appellants owe it." It is apparent that Justice Stinson's stay as extended by Justice Lederer has expired in accordance with its terms.
9 In addition, and irrespective of the orders made by Master Pope and Stinson J., it is apparent that there is no basis for a stay of the writ of possession that I authorized at para 54 of my summary judgment endorsement dated February 3, 2015. No further order of the court is required for the writ that I authorized to be issued and acted upon.
10 Parties do not need motions or orders to execute on judgments which are not stayed or to act on execution documents that may have been, but are no longer stayed. If the terms of the stay order and/or an automatic stay pending appeal (if applicable) are spent, no order is required to re-commence execution.
11 Scheduling a further motion in this matter would be a waste of time, an added cost, and a further prejudicial delay. I make no judicial decision in this endorsement. The lifting of any applicable stay follows from the dismissal of the appeal rather than from anything done or not done by the court. Rather, I decline to schedule this issue for hearing as it does not require a hearing for the plaintiff to be entitled to enforce the summary judgment that it holds.
18By May 24, 2016, the Court of Appeal had upheld Justice Myers decision, and Justice Myers himself had clarified that there was no basis for a stay of the writ of possession.
19Later on May 24th, without having confirmed opposing counsel’s availability, Mr. Slade informed Mr. Hussain’s office that he had scheduled an attendance at CPC on May 27th, and advised he was bringing a short emergency motion seeking to extend Justice Stinson’s order staying the writ of possession of the property. He stated:
If you attempt to file for possession before this time I will motion without notice and show that Tanfi is unlicensed and that the order of Justice Myers did not take this into account. The court is trying to enforce a void contract. I will bring this to Justice Stinson. I disagree with Myers endorsement as the decision clearly states that is not a binding order but a directive. (emphasis added)
20Despite the May 20th Order of Justice McEwen, and the May 24th endorsement of Justice Myers, in an e-mail dated June 2, 2016 Mr. Slade informed Mr. Hussain that he would bring the summary judgment motion on June 27, 2016. He then served a Notice of Motion seeking relief under Rule 20 and Rule 21, returnable July 14. In the motion, the Slades clearly sought relief which was a collateral attack on the decision of Justice Myers, and the Court of Appeal, including:
A Rule 21 determination of an issue before trial, that the two mortgage contracts which were the subject of Justice Myers’ decision were void as against public policy;
An order under Rule 20.05(1) staying the interest and cost portion of the Justice Myers’ judgment;
21As noted in my original decision, I heard the summary judgment motion for a half-day on October 13, and adjourned the motion due to Mr. Slade’s illness. After that truncated argument, during the adjournment period Mr. Slade withdrew the motion, indicating that his wife, the co-moving party, did not approve of the motion.
22I released my decision October 31 and an addendum to the Order on November 1. In the November 1 addendum, I stated:
I direct that until I render my decision on the request for directions regarding the failure to pay outstanding costs awards, the Slades may not schedule any further motion or take any steps in the Superior Court of Justice, Toronto Region involving Court File No. CV-11-427310. This means that the Slades may not bring any motion seeking ancillary relief relating to the counterclaim, such as orders for examination of witnesses, and may not set down the counterclaim for trial, until my decision on the request for directions is released or until I make a further direction.
23Despite this very clear direction that no steps could be taken, on November 7 Mr. Slade wrote to Mr. Hussain’s office expressing intentions to bring a motion contrary to my order:
Sir you will have our motion shortly. I have booked a motion before Justice Stinson to deal with the change in testimony of Nella Ieraci. We also are amending the claim against Mr. Manzo and adding Mr. Zaretsky to the action. I am awaiting a firm date for that motion.
24Mr. Slade then appeared at CPC on December 6, 2016, without notice to Mr. Hussain, seeking to set a motion date. Mr. Slade had prepared a Notice of Motion dated November 21, 2016 and returnable December 9, seeking relief contrary to my order and collaterally attacking the judgment of Justice Myers. The relief sought included the following:
An order for leave to amend the counterclaim
An order for a stay of the interest portion and costs ordered against the Slades by Justice Myers
An order that the Slades pay into Court the principal amount of $590,300 which is the amount of the first and second mortgages with Tanfi Limited
An order that the Slades not sell the property but preserve the property until the matter has been disposed of
An order that the defendants serve and file their defence in twenty days, and that the Slades file their trial record within two days of the defence, and
An order that James Slade attend CPC after the trial record has been served and seek an order from CPC as to an expedited trial of no more than two days before Justice Stinson.
25Justice McEwen’s endorsement at the December 6, 2016 attendance stated that Mr. Slade had appeared without notice to the court, and: “The computer notes indicate that Mr. Slade cannot bring any further motion.” He directed the parties to attend on December 9, 2016, to deal with scheduling issues, including whether the motion can be brought.
26On December 9, 2016, the parties attended in CPC. Justice McEwen scheduled a case conference before me on January 9, 2017, to deal with outstanding issues. The steps taken by Mr. Slade to schedule the motion in CPC are directly contrary to my Order of November 1, 2016.
27In his costs submissions served on December 13, Mr. Slade states:
My wife has told me she will not participate in any more summary judgment motions because the matter is complicated and she does not want this action and the action in Newmarket broken up. She believes that Justice Stinson was right in 2013 and that only in a short trial setting could the whole matter be disposed of properly. In a trial setting there is no way that the other parties can delay this action as all parties will be ordered ready to proceed.
I apologise and repeat myself, the simple reason we withdrew the motion is in a trial setting the other parties cannot delay all of the evidence finally being heard.
28Mr. Slade raises complaints about materials being left improperly on his property. Tanfi/Manzo have filed affidavit evidence about improper treatment of process servers.
Costs Decision
29Tanfi and Manzo seek costs of the partially argued then withdrawn summary judgment motion on a substantial indemnity basis in the amount of $14,709.84, inclusive of HST.
30Mr. Slade seeks costs in the amount of $2,500, for what he states is purposeful delay of the summary judgment motion through non-service, although the motion did proceed on the scheduled day.
31The statutory framework governing costs is set out in the Courts of Justice Act and the Rules of Civil Procedure. Fixing of costs is a discretionary decision under s.131 of the Courts of Justice Act, and is to be exercised with reference to factors listed in Rule 57.01 of the Rules of Civil Procedure.
32These include the principle of indemnity for the successful party and the concept of proportionality which includes the expectations of the unsuccessful party, the amount claimed and recovered, and the importance and complexity of the issues. Rule 57.01(1) also directs attention to the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding, and whether any step in the proceeding was improper, vexatious or unnecessary.
33Rule 1.04(1.1) of the Rules of Civil Procedure requires the court to consider proportionality, as orders are to be proportionate to the importance and complexity of the issues and to the amount involved in the proceeding, thus reinforcing the principles set out in Rule 57.01(1). Ultimately, the court is to determine what is “fair and reasonable” in fixing costs, with a view to balancing compensation of the successful party with the goal of fostering access to justice, rather than reflect the amount of actual costs incurred by the successful litigant: Boucher v Public Accountants Council (Ontario), 2004 14579 (C.A.) at paras. 26 and 37-38.
34In this case, the statutory framework includes Rule 20.06, which provides that the Court may order costs of a summary judgment motion on a substantial indemnity basis, where: (a) the party acted unreasonably by making or responding to the motion, or (b) the party acted in bad faith for the purpose of delay.
35The meaning of “unreasonably” in the context of Rule 20.06 was considered by Justice Emery in Ashim v. Zia, 2015 CarswellOnt 854, 2015 ONSC 564 at para. 9:
What does it mean for a party to act unreasonably by bringing a motion for summary judgment in a post Hryniak environment? The court in Hryniak was clearly concerned about access to justice, particularly with respect to making litigation routes available to litigants that are proportionate to the case. It is my view a moving party would be seen to have acted unreasonably if:
the evidence on the motion was clearly insufficient to show facts on which the court could conclude that there was no genuine issue requiring a trial;
the legal basis for the motion was wrong or clearly insufficient for the court to conclude that there was no genuine issue requiring a trial;
the evidence and legal principles when applied to the issues on the motion did not engage the economies that Hryniak contemplated as a proportionate, timely and affordable procedure to justify bringing the motion having regard to the nature of the action or prevailing circumstances in the litigation; or
no meaningful order is made by the court under Rule 20.05 to assist with the trial management process for the action or that part of the action for which the motion for summary judgment was refused.
36Where Rule 20.06 applies, the court does not need to find conduct which is egregious, reprehensible or acts constituting an abuse of process, as it does in making substantial indemnity costs determinations pursuant to Rule 57.01: Davies v. Clarington, 2009 ONCA 722, [2009]O.J. No. 4236 (C.A.)
37In this case, Tanfi/Manzo rely on both Rule 20.06(a), unreasonableness, and Rule 20.06(b), alleging that the Slades acted in bad faith for the purpose of delaying enforcement proceedings.
38The conduct set out above justifies an award to Tanfi/Manzo on a substantial indemnity basis, pursuant both to Rule 20.06 and my discretion under section 131 of the Courts of Justice Act. Factors I rely on include the following:
(1) The motion was argued for a half-day, the original allotted time, and the responding parties were required to file all responding materials and prepare for a half-day summary judgment motion against Manzo, with significant ancillary relief also affecting Tanfi;
(2) Mr. Slade withdrew the motion during an adjournment, at which point he advised for the first time that his wife, the co-plaintiff by counterclaim, did not authorize the motion. It was unreasonable to bring the motion without his co-plaintiff’s permission, and breaches the implicit warranty to the court that he had such authority. It was unreasonable on this basis to advance and then to withdraw a motion after a half-day argument;
(3) Because the motion was withdrawn, the motion did not meaningfully advance the trial management process, and Mr. Slade now advises in his view and his wife’s view the matters can only be resolved by trial;
(4) The motion sought relief contrary to the decision of Justice Myers, such as staying the interest and costs portion of the decision, which is unreasonable, constitutes a collateral attack on the decision, and was contrived for the purpose of delaying enforcement of the decision of Justice Myers, and;
(5) Mr. Slade took steps which were improper or vexatious, thereby contributing to increased costs. This including misrepresenting facts and previous decisions to the CPC staff to obtain an urgent CPC date; scheduling the May 19th motion and then not advising the other side that it would not be proceeding; scheduling dates without advising the other side; and a number of CPC attendances.
39I have reviewed the Bill of Costs of Counsel for Tanfi/Manzo, and specifically the appropriate hourly rates. I follow Justice Price in David v. TransAmerica Life Canada, 2016 ONSC 1777 at paras. 108 – 112, by commencing with the Costs Grid, and adjusting for inflation using the Bank of Canada Inflation Calculator, available on-line at http://www.bankofcanada.ca/rates/related/inflation-calculator/. The 2016 equivalent of hourly rates for lawyers under 10 years’ experience is 268.66 per hour, and the hourly rate for lawyers with over 20 years’ experience is $417.92. These adjusted rates serve as guideline, to be adjusted for the unique features of the case (para. 113)
40Mr. Ellison, with 48 years at the bar (called in 1968) is claiming $252 per hour on a partial indemnity basis, and $336 on a substantial indemnity basis. Mr. Hussain, with 3 years at the bar, is claiming $108 on a partial indemnity basis, and $144 on a substantial indemnity basis. The hourly rates claimed are reasonable, and the time expended also reasonable.
41Since Mr. Slade brought the motion without his wife’s permission, and the costs are related to the motion, I award Tanfi/Manzo costs in the amount of $14,709.94, inclusive of fees, HST and disbursements, fixed and payable by Mr. Slade within 30 days of this Order.
Motion for Directions
42Tanfi/Manzo seek an order dismissing/staying the counterclaim of James and Nancy Slade if the Slades fail to pay the outstanding costs orders of Justice Myers and the Court of Appeal within 30 days. Of note, these costs orders are made in favour of Tanfi only; the summary judgment motion before Justice Myers was brought only by Tanfi on the claim made by the Slades against Tanfi, and the Slades’ counterclaim against Tanfi, and did not involves the Slades’ counterclaim against Manzo.
43The Rules provide as follows:
57.03(1) On the hearing of a contested motion, unless the court is satisfied that a different order would be more just, the court shall,
(a) fix the costs of the motion and order them to be paid within 30 days; or
(b) in an exceptional case, refer the costs of the motion for assessment under Rule 58 and order them to be paid within 30 days after assessment.
(2) Where a party fails to pay the costs of a motion as required under subrule (1), the court may dismiss or stay the party's proceeding, strike out the party's defence or make such other order as is just.
60.12 Where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provided by these rules,
(a) stay the party's proceeding;
(b) dismiss the party's proceeding or strike out the party's defence; or
(c) make such other order as is just.
44There is a critical preliminary issue here, the identity of the parties, which I raise although it was not raised by the Slades in their submissions. While the motion brought and argued before me on October 13, 2016 involved both Tanfi and Manzo (since relief was sought against both parties), the judgment of Justice Myers directing payment of the two mortgages with costs, and the unpaid Court of Appeal costs order, involve only Tanfi. Manzo was not a party to those proceedings; Manzo is only a party to the counterclaim. Thus, Manzo may not rely on either Rule 57.03 or Rule 60.12 at this time.
45On this point, I adopt the reasoning of Master Graham in Ortepi v. Pozzuoli, 2008 6992 (ON SC), 2008 CarswellOnt 1015, 166 A.C.W.S. (3d) 74, 89 O.R. (3d) 452 (Master), at paras. 12-13:
12 Rule 57.03(1) provides for the awarding of costs following the hearing of a contested motion. Rule 57.03(2) allows the court to dismiss or stay "the party's proceeding" where a party fails to pay the costs of a motion as required under rule 57.03(1). Because rule 57.03(2) refers to the dismissal or stay of the party's proceeding, in the singular, it must only mean a dismissal of the proceeding in which the motion was brought; it does not leave open the possibility that the default would allow some other proceeding to be dismissed.
13 Rule 60.12 allows for the staying or dismissal of an action, or the making of such other order as is just, where a party fails to comply with an interlocutory order. The fact that the sanction under the rule is again to stay or dismiss "the party's proceeding" (once again in the singular), means that the rule contemplates that the sanction would only be available in the proceeding in which the interlocutory order was made. The option of the court making "such other order as is just" simply broadens the court's discretion to impose sanctions that are less severe than the staying or dismissal of the action. The fact that the rule grants to the court the power to "make such other order as is just" does not, in the face of the reference to only one proceeding in paragraphs 60.12(a) and (b), lead to the interpretation urged by moving counsel, that the rule may be used to impose a sanction for a failure to comply with an interlocutory order in another proceeding. (emphasis added)
46Tanfi cannot seek an order under Rule 60.12, since the orders it relies on are not interlocutory orders, but final orders.
47Rule 57.03(3) applies to the claim by Tanfi, since the Slades have failed to pay costs ordered on a contested summary judgment motion. However, judgment has been granted, so the relief of dismissing or staying the Slades’ proceeding against Tanfi does not apply. Tanfi has raised some arguments with respect to the Newmarket proceeding, but that is also a separate proceeding, and Rule 57.03(3) only applies to the same proceeding. However, I have discretion to make “such other order as is just”, and note that in this case the Slades sought relief against Tanfi in the guise of a motion brought in the Manzo counterclaim.
48In considering a Rule 57.03(3) order, I adopt the following principles set out in Rana v. Unifund Assurance Co., [2016] O.J. No. 1991, 2016 ONSC 2502 by Dunphy J. as relevant to the exercise of my discretion (para. 50):
a. Where there has been non-compliance with an order of the court, the court should be alive to the possibility that its process is being abused; failing to act may deprive the moving party of justice according to law and risks rendering the court a paper tiger: Bottan v. Vroom, at para. 24-25;
b. The right of access to the courts must be accompanied by the responsibility to abide by the rules of civil procedure and to comply with orders of the court — to exempt impecunious parties from the enforcement of costs orders when made would amount to granting "carte blanche to continue to ignore the rules and orders of the court and take unsupportable steps in the action without fear of consequences" per Master Dash in Heu v. Forder Estate [2004 CarswellOnt 729 (Ont. Master)], 2011 16198 at para. 19-20;
c. The court ought not to sit in appeal of the prior costs awards — the respondent will have had the opportunity to make submissions about impecuniosity at the prior hearings that resulted in the costs orders and seeking to relieve against prior costs orders constitutes a collateral attack on orders previously made: Bottan v. Vroom, at para. 23; Visic v. University of Windsor, 2013 ONSC 2063 (Ont. S.C.J.) at para. 36 and 66; Trewin v. MacDonald, [2008] O.J. No. 2821 (Ont. S.C.J.) at para. 26;
d. The court may have regard to a pattern of unnecessary and unreasonable steps taken in the proceeding, including appealing numerous orders without chance of success or knowing the risk thereby imposing costs upon the other party: Visic v. University of Windsor at para. 68;
e. If the orders of the court are "cavalierly ignored" and if a litigant "continuously fails to comply with her obligations as a litigant and then fails to abide by the costs consequences attendant upon that behavior, the court is justified in bringing some finality to the action" (per Master Dash in Burrell v. Peel (Regional Municipality) Police Services Board [2007 CarswellOnt 6992 (Ont. Master)], 2007 46173 at para 63; aff'd 2010 ONSC 1387 (Ont. Div. Ct.);
f. Impecuniosity is not a shield for unreasonable conduct of litigation and a dismissal order may be made even if it resolves the matter on procedural rather than substantive grounds: Baradaran v. Tarion Corp., 2014 ONSC 6870 (Ont. S.C.J.);
g. Self-represented litigants, while entitled to some accommodation and assistance to ensure a fair hearing, are not entitled to abuse the system or the party opposite and failure to enforce orders once made against self-represented parties is unfair to the parties opposite and undermines respect for the court and the civil justice system: per Myers J. in Baradaran v. Tarion Corp., 2015 ONSC 7892 (Ont. S.C.J.); Bilich v. Toronto Police Services Board, 2014 ONSC 6765 (Ont. S.C.J.);
h. "Courts usually talk in terms of prejudice that cannot be compensated for by costs. But, at some point, costs themselves become an inadequate form of compensation for prejudice, especially where the party on whom they are imposed refuses to pay them": per D.M. Brown J.A. in Schwilgin v. Szivy, 2015 ONCA 816 (Ont. C.A.) at para. 23.
49The conduct of the Slades in the period following the decision of Justice Myers demonstrates the importance of these principles, which I consider together with factors outlined in the costs discussion above:
(1) With respect to Tanfi, both Mr. and Mrs. Slade have flouted the orders of Justice Myers and the Court of Appeal. They have failed to pay the amounts due under the mortgages and the associated costs awards. The Slades have sought to collaterally attack those orders for the purpose of delay. Part of the relief sought on the October 13, 2016 motion included an order for a stay on the interest and costs portion of the judgment of Justice Myers on February 3, 2015 pending the completion of an action brought by Mr. Slade in the Superior Court of Justice in Newmarket (the “Newmarket Action”), which is a collateral attack on the judgment of Justice Myers. Similar relief was sought on the draft motion sought to be scheduled on December 6, 2016, to which Mrs. Slade was a party.
(2) With respect to Tanfi and Manzo, Mr. Slade failed to comply with the orders of both Justice McEwen and Justice Myers that the summary judgment on the Manzo claim was to be scheduled before Justice Myers.
(3) Mr. Slade brought the motion without his wife’s permission, and breached his implicit warranty to the court that he had such authority.
(4) With respect to both Tanfi and Manzo, the Slades have contravened my decisions of October 31 and November 1, which clearly directed that the Slades were to take no steps in the proceeding, and no steps to schedule any further motion, pending the release of this decision. Despite this, on December 6 Mr. Slade appeared in CPC to schedule a motion, again seeking an order for a stay on the interest and costs portion of the judgment of Justice Myers, which is a collateral attack on that decision. On that appearance, Mr. Slade did not advise Justice McEwen of my order prohibiting him from scheduling or taking steps in this matter, and did not indicate that his wife was not taking part in the motion. Mrs. Slade as a Plaintiff to the Counterclaim is a party to the motion sought to be scheduled.
50I recognize that the Slades are self-represented, and have been self-represented throughout the various proceedings. The court recognizes that all litigants are entitled to a full and fair opportunity to put their case before the court, and the Slades have been afforded that opportunity. However, given their conduct in this proceeding, and the continuing failure to comply with court orders, the Slades have crossed the line. As stated by Justice Myers in Baradaran v. Tarion Corp., [2015] O.J. No. 6654 2015 ONSC 7892 at para. 15:
All parties, self-represented or not, are entitled to a fair hearing and a fair day in court. Self-represented parties can, at times, require assistance to understand the process and legal rules so as to avail themselves of their entitlement to the fair hearing assured to all litigants. They are entitled to this assistance and both the court and counsel opposite are bound to provide it to ensure a fair hearing. But no party, whether self-represented or not, is entitled to abuse the system or the party opposite.
51Part of accommodating the self-represented parties was to allow Mr. Slade to speak on behalf of his wife, so that she would not be required to attend all proceedings. However, part of this accommodation was the court’s reliance that Mr. Slade had the authority of his wife to do so. It is now clear that Mr. Slade has breached that implicit warranty of authority. Rule 15.01(3) provides that an individual must act in person or through a lawyer. Mr. Slade may not represent Mrs. Slade in any proceeding in the future; she must act in person or through a lawyer. That means she must attend all future proceedings by herself or through her lawyer, and Mr. Slade may not act in any manner on her behalf.
52Given the conduct of the Slades to date, and their continuing failure to comply with court orders, I direct the following pursuant to Rule 57.03(3), which I interpret to include steps taken to enforce the orders rendered in the proceeding, as well as Rule 37.16:
(1) Without leave of the court, the Slades may take no steps against Tanfi Limited in this proceeding or that would collaterally attack the decision of Justice Myers, namely, the responsibility to pay the mortgages, together with interest and costs of the decisions of Justice Myers and the Court of Appeal, as well allowing enforcement of the writ of possession;
(2) Without leave of the court, the Slades may take no steps to prevent enforcement of the decision of Justice Myers, and may not attempt to obstruct the execution of the writ of possession authorized by Justice Myers;
(3) Without leave of the court, the Slades may not seek relief against Tanfi in the Manzo counterclaim, or under the guise of a motion in the Manzo counterclaim, as Tanfi is not a party to the Manzo counterclaim;
(4) Mr. Slade is to pay Tanfi/Manzo costs on this motion in the amount of $14,709.94, inclusive of fees, HST and disbursements, fixed and payable by February 4, 2017;
(5) Without leave of the court, the Slades may not take any steps in the Manzo counterclaim, and may not schedule any motions in the Manzo counterclaim, until the costs of this motion are paid, and proof of payment has been provided to me;
(6) If Tanfi/Manzo receive payment of the costs of this motion, they are to advise me promptly upon receipt;
(7) If the Slades fail to comply with the order to pay the costs of this motion by February 6, 2017, then Manzo may seek dismissal of the Manzo counterclaim pursuant to Rule 57.01(3), on five days written notice to the Slades;
(8) The motion to dismiss the Manzo counterclaim for failure to comply with this order may be obtained by Manzo filing a written motion record, with a copy delivered to the Slades by courier, with affidavit evidence confirming the Slades’ noncompliance with the order to pay the costs of the proceeding. The motion record may be sent to my attention at Judge’s Reception;
(9) The Slades may file materials relevant to the failure to pay this costs order together with supporting affidavit evidence, five days after receipt of the Manzo motion, by serving Mr. Hussain and sending their responding record and submissions to my attention at Judge’s Reception;
(10) If the Slades do pay the costs of this motion before February 6, they will be entitled to move the Manzo counterclaim to completion. However, no relief may be sought against Tanfi in the Manzo counterclaim, or a motion in that counterclaim, without leave of the court; and
(11) If any party wishes to bring a summary judgment motion in the Manzo counterclaim, it is to be scheduled before Justice Myers, who is seized of the matter.
53There is a case conference in this matter scheduled before me on January 9th, 2017 at which time any outstanding matters may be addressed.
54Mrs. Slade must attend the case conference either personally or through her lawyer. If she has not done so already, she must prepare a notice of intention to act in person to be served on Mr. Hussain.
55Manzo/Tanfi are to prepare a draft order. I dispense with the need for approval as to form and contents of the order by the Slades.
Kristjanson J.
Date: January 4, 2017