CITATION: Taylor v. WSIB, 2017 ONSC 7511
COURT FILE NO.: CV-14-0794-00
DATE: 2017-12-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
PAUL TAYLOR
Self-represented
Plaintiff/Responding Party
- and -
WORKPLACE SAFETY & INSURANCE BOARD – WSIB, and WORKPLACE SAFETY & INSURANCE APPEALS TRIBUNAL - WSIAT
Jean-Denis Belec, for the Defendant/Moving Party, WSIB
Andrew Lokan, for the Defendant/Moving Party, WSIAT,
Defendant/Moving Party
Price J.
Costs Endorsement
OVERVIEW
[1] Following Paul Taylor’s unsuccessful application for benefits, reconsideration of his application, and appeal from 2008 to 2013 as result of a workplace injury he suffered in 1997, Mr. Taylor, who was self-represented, sued the Workplace Safety and Insurance Board (“WSIB”) and the Appeals Tribunal for approximately $17 million. He alleged that, as a result of multiple breaches of the Human Rights Code and the Charter of Rights, the WSIB and the Appeals Tribunal had acted in bad faith by requiring him to undergo training for positions that were unsuitable for him by reason of his colour-blindness and work-related injuries, and by intentionally trying to harm him.
[2] The WSIB and Appeal Tribunal moved to dismiss Mr. Taylor’s action as frivolous, vexatious, and an abuse of process or, in the alternative, to strike his pleadings as disclosing no reasonable cause of action. Additionally, they asserted that this Court lacked jurisdiction to determine his action because Mr. Taylor’s remedy, if any, was by way of application to the Divisional Court for judicial review. Lastly, they argued that his claims were statute-barred.
[3] Following a hearing on August 15, 2016, this Court held that it had no jurisdiction to order some categories of relief which Mr. Taylor sought in his action, all of which were within the exclusive jurisdiction of the Tribunal and the WSIB. It further held that the issues Mr. Taylor raised in his Statement of Claim regarding his entitlement to Workplace Safety and Insurance Act benefits had been decided by the WSIB’s final decisions, the Tribunal’s Appeal Decision, and the Tribunal’s Reconsideration Decision. Further litigation of his entitlement to such benefits would constitute an abuse of process and collateral attack on the WSIB and Tribunal’s decisions.
[4] Additionally, this Court held that Mr. Taylor’s allegations dealing with “delays” of this motion were an abuse of process, as he should have raised such concerns in a motion for procedural remedies and not in his amended Statement of Claim. For those reasons, this Court denied Mr. Taylor leave to amend his Claim, struck his Claim, and ordered him to pay the costs of the WSIB and Appeals Tribunal, the amount of which it reserved pending receipt of the parties’ written argument. This court has now received and considered those written arguments.
BACKGROUND FACTS
[5] On March 17, 2014, the WSIB advised Mr. Taylor of its intent to bring a Rule 21 Motion. In the course of scheduling the motion, Mr. Taylor suggested dates in July and August 2014 when the WSIB’s lawyer was not available. The motion was scheduled a few months later on October 22, 2014. The WSIB delivered its Motion Record on October 3, 2014. Seven days later, Mr. Taylor wrote to indicate that he was disputing all issues raised in the motion and would be unable to deliver responding materials on time. On October 15, 2014, he requested an adjournment and, on consent, the motion was adjourned to February 23, 2015 to enable Mr. Taylor to prepare his responding materials.
[6] On January 7, 2015 Mr. Taylor was encouraged to agree to a timetable for the delivery of his responding materials and cross-examination to ensure that the February 23, 2015 motion could be heard. At that point, even though Mr. Taylor had three months to prepare his materials, he did not wish to commit to a timetable. Instead, he sought an adjournment of the February 23, 2015 motion date. That request was opposed by both the WSIB and the Appeal Tribunal. Barnes J. adjourned the motion from February 23, 2015 on terms that included a timetable for Mr. Taylor to deliver his responding materials. Under the timetable, he was to deliver his responding record by April 24, 2015. He delivered them a few days late, on April 27, 2015. He delivered his factum on June 22, 2015, which was almost a month beyond the deadline of May 29, 2015 that Barnes J. had imposed.
[7] The hearing date for the motion was set for October 21, 2015. Mr. Taylor sought another adjournment on the basis of an alleged conflict of interest on the part of the motion judge. The request was opposed but LeMay J. held that there could be a potential conflict of interest, and reluctantly adjourned the motion to May 9, 2016, peremptory to Mr. Taylor, and with costs of the appearance on October 21st in the cause. Due to a judge’s conference, the May 9, 2016 hearing date was adjourned to August 15, 2016.
THE PARTIES’ POSITIONS
WSIB’s claim for costs
[8] The WSIB claims $7,000 for its costs of the motion on a substantial indemnity scale. It submits that the time it spent defending the action and bringing its motion to have the action dismissed resulted in fees of $10,270.00. It makes no claim for disbursements. It made no settlement offers prior to the hearing of the motion, but seeks its costs based on its success in the motion to dismiss the action and Mr. Taylor’s repeated delaying of the motion and alleged unreasonable conduct in bringing the action. The WSIB characterizes Mr. Taylor’s conduct as a disguised attempt to claim WSIB benefits.
[9] The WSIB argues that costs are appropriate where allegations are made impugning the integrity of opposing counsel. It notes that Mr. Taylor amended his Statement of Claim on July 23, 2014 to include allegations of bad faith and improper conduct on the part of WSIB’s counsel, Mr. Bélec, for not being available to argue the motion on certain dates in the summer of 2014. Mr. Bélec submits that, at best, the WSIB caused a delay of two months in scheduling the motion because Mr. Bélec was not available on the dates Mr. Taylor suggested, whereas Mr. Taylor had caused a delay of 18 months. Mr. Bélec seeks to hold Mr. Taylor accountable for significant delays in failing to comply with the timetable he had agreed to and that was ordered by this Court. He submits that Mr. Taylor’s claim was devoid of any merit and that his conduct calls for substantial indemnity costs.
WSIAT’s claim for costs
[10] The Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) claims costs in the amount of $3,000, slightly less than the amount of its disbursements. It does not claim for its fees, which were $23,586.49, discounted from the rate it could have sought, even on a partial indemnity scale.
Mr. Taylor’s position
[11] In his written cost submissions, Mr. Taylor disputed the WSIB’s arguments and argued that costs should not to be awarded to the WSIB or Tribunal at all. He submitted that the WSIAT had not provided a costs demand, had not filed their motion to strike “promptly” and that this Court should consider his motion a public litigation matter for which no costs should be awarded to either the WSIB or the WSIAT.
[12] Mr. Taylor argued that, if it was accepted that the WSIB and the WSIAT were intentionally deceptive, it would impact thousands of other injured workers and the public at large. He explains that if legitimate claims were denied by the WSIB and the WSIAT, the public would be forced to resort to taxpayer funded social programs, such as Ontario Works, ODSP, CPPDP, etc. However, this Court did not accept Mr. Taylor’s argument that the WSIB or Tribunal had acted in such a manner, and his allegations could, in fact, have resulted in a much higher award of costs against him.
ANALYSIS AND LAW
General principles
[13] In awarding costs, the court must balance two conflicting principles: indemnification of the successful litigant for the cost of enforcing or defending its rights and avoiding making potential litigants feel unduly hesitant to defend their rights by requiring them, as unsuccessful litigants, to bear all the costs of the successful party as well as their own.[^1] The ultimate objective in balancing these principles is to ensure that the justice system works fairly and efficiently.[^2]
Discretion to be exercised
[14] Costs awards are governed by section 131 of the Courts of Justice Act [^3] and Rule 57.01 of the Rules of Civil Procedure.[^4] Section 131 confers the court its general discretion to determine costs. Rule 57.01 provides guidance in the exercise of that discretion by enumerating factors that the court may consider when determining costs.
Objectives of a costs order
[15] The indemnification of the successful party is the paramount objective, but not the only one, to be served by a costs order. Other objectives that the court has recognized include encouraging settlement, discouraging frivolous proceedings and unnecessary steps in litigation, and preserving access to justice.[^5]
[16] The overriding principles that the court must apply when determining costs are fairness and reasonableness: Boucher v. Public Accountants Council for the Province of Ontario[^6] and Moon v. Sher.[^7] The overall objective is “to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.”[^8] This is a “fundamental concept in fixing or assessing costs.”[^9]
Factors to be considered in awarding costs
[17] Rule 57.01(1) provides, in part:
57.01(1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the Court may consider…
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(a) the amount claimed and the amount recovered in the proceeding;
(c) the complexity of the proceeding;
(d) the importance of the issue;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(i) any other matter relevant to the question of costs. [Emphasis added]
[18] I will review the factors which I consider most relevant in arriving at the appropriate costs order in the present case.
a) Indemnification
[19] Costs generally follow the event. In other words, a successful party is generally entitled to an assessment of his or her costs. Exceptions are sometimes made where the successful party has forfeited its right to costs by acting unreasonably in the conduct of the action or by refusing a reasonable offer to settle. These circumstances do not obtain in the present case and there is therefore no reason to depart from the general rule that costs should follow the event. That said, a determination must be made as to which party was successful. In cases of divided success, each party may be required to bear their own costs or costs may be apportioned between the parties in accordance with their relative successes.
b) Reasonable expectations of the parties
[20] A costs award must be within the reasonable expectations of the parties in order to preserve access to justice. Armstrong J.A. explained the rationale for this principle in Boucher:
The failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice. The costs system is incorporated into the Rules of Civil Procedure, which exist to facilitate access to justice….
In deciding what is fair and reasonable, as suggested above, the expectation of the parties concerning the quantum of a costs award is a relevant factor.[^10]
[21] Borins J.A. expanded on the rationale for the principle in Moon v. Sher:
The failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice. The costs system is incorporated into the Rules of Civil Procedure, which exist to facilitate access to justice. There are obviously cases where the prospect of an award of costs against the losing party will operate as a reality check for the litigant and assist in discouraging frivolous or unnecessary litigation. However, in my view, the chilling effect of a costs award of the magnitude of the award in this case generally exceeds any fair and reasonable expectation of the parties.
In deciding what is fair and reasonable, as suggested above, the expectation of the parties concerning the quantum of a costs award is a relevant factor.[^11]
[22] A party will be relieved from paying costs where their claim contains a bona fide cause of action that is not frivolous or vexatious and where it was justified in commencing the action having regard to the conduct of the third party.[^12] I find that Mr. Taylor’s claim, while not containing a cause of action that had a prospect of success in this Court, was not frivolous or vexatious.
[23] In Hryniak v. Mauldin,[^13] the Supreme Court of Canada encouraged the use of Ontario’s summary judgment rule to resolve cases in an expeditious manner if doing so could achieve a fair and just adjudication. Speaking for the court, Karakatsanis J. included the following:
Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. …
Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect the modern reality and recognize that new models of adjudication can be fair and just. …
There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted. A proper balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.[^14] [Emphasis added.]
[24] The summary disposition of actions can sometimes deprive the court of evidence that would better inform its exercise of discretion with regard to costs, by “nipping the action in the bud” rather than permitting the action to be dismissed after the issues are developed in their full factual context.
[25] In Gao v. Ontario WSIB, Myers J. said:
It should be borne in mind however, that even a vexatious litigant can have a legitimate complaint. It is not uncommon for there to be a real issue at the heart of a vexatious litigant’s case. The problem is often that the litigant either cannot properly communicate the concern or, more typically, cannot accept that the law may not provide the remedy sought despite the unfairness felt by the litigant. While rule 2.1 should be applied robustly to bring to an early end to vexatious proceedings, the matters should not be considered lightly or dismissively. Care should be taken to allow generously for drafting deficiencies and recognizing that there may be a core complaint which is quite properly recognized as legitimate even if the proceeding itself is frivolously brought or carried out and ought to be dismissed.[^15] [Emphasis added]
c) The amount claimed in the proceeding
[26] Mr. Taylor sued the WSIB and WSAIT for approximately $17 million. The Board and the Tribunal were required to treat the action seriously and to devote sufficient time to the motion to ensure that, besides having the action dismissed, costs were kept to a minimum.
d) Complexity
[27] I do not regard the motion as very complex owing, in part, to the fact that Mr. Taylor was self-represented and asserted his claims in a manner that left the action vulnerable to being dismissed on jurisdictional and procedural grounds that were more self-evident than they might have been if a lawyer had drafted them.
e) The importance of the issues
[28] As I noted in my reasons for dismissing Mr. Taylor’s Amended Claim, Mr. Taylor set out a wide range of complaints about the handling of his claims by the WSIB and the WSIAT. These included the following allegations about the WSIB:
a) It acknowledged the full extent of his injuries in February 1997 and later, without consulting his family doctor on medical reporting, downgraded his injuries based on discrepancies in such reporting, with the intention of reducing the cost of the injuries to the WSIB.
b) It failed to provide treatment prescribed by Mr. Taylor’s family doctor, or to pay for any treatment after March 1997.
c) It did not recognize that he had suffered a permanent impairment until approximately 3 years after his initial injuries, in spite of the fact that Mr. Taylor’s family doctor characterized his injuries in this manner after 7 months, choosing, instead, to follow a less reliable medical report.
d) It only recognized permanent impairment to Mr. Taylor’s lower back, whereas he had, in fact, suffered a permanent impairment to his entire back, neck and head.
e) It always sided with Mr. Taylor’s employer, falsely stating that Mr. Taylor was not cooperating, which was later found to be incorrect, and reducing his income benefits by half.
f) Knowing that Mr. Taylor’s employer had provided Mr. Taylor with work in March/April 1997 that was unsuitable and which aggravated his condition, including forcing him to operate a heavy vehicle while under the influence of strong opioid pain medication, it took no action to prevent harm to Mr. Taylor or the public.
g) It took no action when it found that Mr. Taylor’s employer had deceived them by intentionally withholding important evidence that Mr. Taylor and the WSIB had requested.
h) It failed to recognize a prior colour-blindness and possible learning disabilities or test for such disabilities, and failed to accommodate his disabilities in the WSIB appeal. Instead, it misled Mr. Taylor into believing that his colour-blindness was not recognized by law as a disability, in breach of the Ontario Human Rights Code and the equality provision in section 15 of the Charter of Rights and Freedoms.
i) It sponsored career retraining programs that were unsuitable, in that they were designed for employment of a person with the qualifications of a Professional Engineer (which Mr. Taylor did not possess) and without colour-blindness.
j) It sponsored a retraining program requiring Mr. Taylor to endure a 1.5 hour bus ride, which subjected him to physical hardship, owing to his back injuries, and to emotional distress.
k) It intentionally made false claims that Mr. Taylor’s disabilities were not real and that he suffered from self-perceived limitations, which maligned Mr. Taylor’s character.
[29] Mr. Taylor complained that it took ten years for the WSIAT to deal with his appeal, deferring in some instances to WSIB counsel when they stated they were unavailable on dates that the WSIAT offered them. Mr. Taylor submitted that the WSIB counsel’s unavailability was strategic and intentional. He complains of further shortcomings in the way in which the WSIAT dealt with his appeal, relying, in part, on a surreptitious tape recording of the WSIAT’s deliberations, in which a member of the Tribunal is heard to say that he would like to kick Mr. Taylor in the ass for not getting a job and supporting his family.
[30] Mr. Taylor concluded:
This is where insurance companies and workers compensation systems intentionally delay paying benefits to individuals to starve them out. This is in hopes claimants will go away and have no resources to fight them. In the end result, the insurance companies save a considerable amount of money. This is why the Canadian courts have slowly started to respond by starting to award larger amounts of punitive damages.
Either the courts start to award even larger damages to plaintiffs in insurance company and workers compensation cases or order them to pay the claimants benefits while they wait the long periods of time. This prevents the typical starve-out technic [sic] that is all too often employed in the insurance industry and workers compensation systems throughout North America. It is also a major concern, especially in cases of suitability concerns to force a worker to do unsuitable work for months or years because the WSIB is unwilling to do their part. As in this particular case, it poses a serious safety concern where the truck driver is knowingly being forced to operate a heavy vehicle while under the influence of drugs….
[31] This Court’s dismissed Mr. Taylor’s Amended Claim based, in part, on the fact that it challenged the Tribunal’s Appeal and Reconsideration Decision by alleging procedural and substantive errors which should properly have been raised by an application for judicial review before the Divisional Court and not by an action in this Court. This Court does not have jurisdiction to engage in a judicial review of the Tribunal’s decisions in the context of an action.
[32] Additionally, this Court held that it has no jurisdiction to order some categories of relief that Mr. Taylor sought in his action, including loss of earnings, future economic loss, non-economic loss benefits, retraining expenses, costs of medical care, and interest on benefits that were not paid – all of which were within the exclusive jurisdiction of the Tribunal and the WSIB.
[33] This Court’s disposition of the WSIB’s motion for summary judgment dismissing Mr. Taylor’s action should not be interpreted as a finding that he had no legitimate complaints about the way the WSIB dealt with his claim or the way his appeal was dealt with. The fact that Mr. Taylor was self-represented may account for the fact that he failed to make his complaints at the proper time and using the proper procedure. In these circumstances, persons advancing claims to the WSIB for benefits should not be overly discouraged from doing so by being required to bear the full burden of the WSIB’s and WSIAT’s costs when the claim is dismissed.
[34] The public has an interest in preserving the integrity of the process by which claims are processed by the WSIB and WSIAT – namely, by ensuring that complaints are given the judicial scrutiny they require. At the same time, the Court must preserve the integrity of its own process by dismissing such complaints when they are improperly made and by preventing Claimants from re-litigating in this Court issues that should have been raised with the WSIB or before the WSIAT or reviewed by applications made to the Divisional Court.
[35] Owing to the circumstances giving rise to claims for worker benefits, individuals making claims to the WSIB and WSIAT are, by economic necessity, often self-represented. This imposes an obligation on the Board and Tribunal, where appropriate, to look beyond the Claimants’ defective pleadings and procedural errors to examine the merits of the claims and ensure that its own handling of such claims and appeals are achieving the purposes set out in the Workplace Safety and Insurance Act. Issues raised by self-represented Claimants, even when defectively pleaded and pursued by procedurally incorrect means, offer an opportunity to the WSIB and WIAT to examine their own processes to ensure that they are fair and effective in determining whether the concerns underlying the Claimant’s complaints have some substantive merit.
[36] I make no finding as to whether the WSIB or WSIAT dealt with Mr. Taylor’s claims properly or not, or whether his complaints had merit or not. This Court’s conclusion that it did not have the jurisdiction to determine those issues was reached on a motion for summary judgment. Because the WSIB and WSIAT moved to have the action dismissed on jurisdictional and procedural grounds, as they were entitled to do, those questions remain unanswered.
f) The conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
[37] I do not find that unreasonable conduct by Mr. Taylor substantially lengthened the duration of the proceeding. In spite of the fact that he did not comply fully with the deadlines that this court’s timetable imposed on him, I find that he generally struggled to do so. It appeared to me that he was doing the best he could and he made his case in a serious and respectful manner.
g) Whether any step in the proceeding was improper, vexatious or unnecessary
[38] I did not find that Mr. Taylor’s complaints were frivolous His evident and, perhaps, understandable, frustration with the lengthy process he had undergone before the WSIB and WSIAT may have resulted in his unfair and unwarranted attribution of sinister motives to Mr. Bélec. If he had been represented by a lawyer, his attribution error would likely have been tempered and even eliminated by a greater insight into the demands that counsel’s duties in handling multiple proceedings impose on them.
[39] In Schaer v. Barrie Yacht Club, Eberhard J., stated:
Finally, in relation to whether any step in the proceeding was: (i) improper, vexatious or unnecessary; or (ii) taken through negligence, mistake or excessive caution; I consider whether the rule should be relaxed in favour of a self-represented litigant in order to preserve adherence to the principal that all citizens should have equal access to justice. Frankly, for many self-represented litigants, I would forbear from ordering costs, particularly an order designed to express the disapproval of the court, because it is patent that they are unrepresented out of financial need, they are conscientiously trying to comply with complicated procedures and they put forward the gist of their issue sufficiently to allow fair adjudication to proceed. Such a self-represented litigant does not deserve disapproval but patience.[^16] [Emphasis added.]
h) Any other matter relevant to the question of costs.
[40] I have considered the principle that costs awards should facilitate access to justice, and the effect that the costs award in the present case may have on the attainment of that objective. I have considered, in particular, the Canadian Judicial Council’s Statement of Principles on Self-Represented Litigants (September 2006) requiring the Court to facilitate access to justice. I am mindful of the fact that the justice system has an obligation to promote access to justice equally to all, irrespective of their representation and that, for the discharge of this duty, the Court cannot always demand the same standard of self-represented litigants that it demands of litigants who are represented by lawyers. Due to the complexity of court procedures and rules, special attention should be afforded to facilitate access to justice for self-represented litigants.[^17]
[41] In Major v. York Region Children’s Aid Society, Fregeau J. stated:
I accept the suggestion that the plaintiff’s action against these defendants was without merit. The plaintiff was given an opportunity to reconsider the merits of his claim and agree to a dismissal without any costs in November 2010. At the same time, he was put on notice that costs would be sought against him should he persist in pursuing the matter. The plaintiff failed to respond to this proposal.
I further accept that the plaintiff’s motion seeking leave to amend the statement of claim as it pertained to Lake and Bilsland was brought solely in response to the motion for summary judgement and was, in and of itself, without merit. In the circumstances, Lake and Bilslaand are entitled to costs from the plaintiff on both motions. The more difficult issue is quantum.
The plaintiff is self-represented. It is reasonable to expect errors, perhaps significant ones, in a self-represented litigant’s original pleadings. However, the plaintiff was given an opportunity in November 2010 to apply some objective thinking to the merits of his claim against these individual defendants. He failed to do so.
Upon receipt of the motion for summary judgement, the plaintiff was once again given this opportunity. The materials in support of the motion for summary judgement were well prepared and easily comprehensible to a self-represented litigant. The plaintiff, however, chose not to consider matters logically and objectively. Instead, the plaintiff responded aggressively and sought to amend his claim, attempting to address the obvious deficiencies therein by way of a motion to amend. This was obviously and simply an attempt to avoid summary judgement. There was no merit to the suggested amendments.
What is a “fair and reasonable amount” that should be paid as costs by a self-represented litigant in these particular circumstances? The amount awarded must discourage inappropriate behaviour yet not produce a result that is contrary to the fundamental objective of access to justice.
In all of the circumstances, I order that the plaintiff pay to the defendants Lake and Bilsland costs for both motions in the total amount of $10,000.00, inclusive of HST and disbursements. These costs shall be paid within 30 days.[^18] [Emphasis added.]
[42] Mr. Bélec fairly acknowledges that in the present case, no Offers to Settle were made. Additionally, no correspondence was tendered that suggests an effort was made to give Mr. Taylor an opportunity to reflect on the weaknesses of his position and to withdraw from it. There was also no correspondence indicating to Mr. Taylor that his concerns were acknowledged or that there was some readiness to compromise, even on costs that a dismissal of his action might entail. While the WSIB’s failure to make such an Offer to Settle is not unreasonable conduct in itself, the absence of such an Offer or effort at communication, weakens the WSIB’s argument that the Court should impose costs in this case.
CONCLUSION AND ORDER
[43] For the foregoing reasons, it is ordered that:
Mr. Taylor shall pay WSIB’s costs of the action, including the motion for summary judgment, fixed in the amount of $3,000.00, inclusive of fees, H.S.T., and disbursements, payable forthwith.
Mr. Taylor shall pay WSIAT’s costs of the action, including the motion for summary judgment, fixed in the amount of $3,000.00, inclusive of fees, H.S.T., and disbursements, payable forthwith.
Price J.
Released: December 14, 2017
CITATION: Taylor v. WSIB, 2017 ONSC 7511
COURT FILE NO.: CV-14-0794-00
DATE: 2017-12-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
PAUL TAYLOR
Plaintiff/Responding Party
- and –
WORKPLACE SAFETY & INSURANCE BOARD – WSIB, and WORKPLACE SAFETY & INSURANCE APPEALS TRIBUNAL - WSIAT
Defendant/Moving Party
COSTS ENDORSEMENT
Price J.
Released: December 14, 2017
[^1]: Mark Orkin, The Law of Costs (2nd ed.) (2001, Canada Law Book), p. 23.
[^2]: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 at paras. 25-26.
[^3]: Courts of Justice Act, R.S.O. 1990 c. C.43, s. 131.
[^4]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[^5]: 1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), 2006 35819 (ON CA), 82 O.R. (3d) 757 (C.A.) at para. 45, Feldman J.A.
[^6]: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).
[^7]: Moon v. Sher (2004), 2004 39005 (ON CA), 246 D.L.R. (4th) 440 (Ont. C.A.).
[^8]: Boucher v. Public Accountants Council for the Province of Ontario at para. 26.
[^9]: Gratton-Masuy Environmental Technologies Inc. v. Building Materials Evaluation Commission, 2003 8279 (ON SCDC), 2003 ONSC 8279, 170 O.A.C. 388 (Div. Ct.) at para. 16. See also Boucher. v. Public Accountants Council for the Province of Ontario at para. 38; Davies v. Clarington (Municipality), 2009 ONCA 722, [2009] O.J. No. 4236, 100 O.R. (3d) 66.
[^10]: Boucher v. Public Accountants Council for the Province of Ontario at paras. 37-38.
[^11]: Moon v. Sher.
[^12]: Maida v. Goodmurphy 2012 ONSC 222, para. 22
[^13]: Hryniak v. Mauldin,2014 SCC 7, [2014] 1 S.C.R. 87.
[^14]: Hryniak v. Mauldin at paras. 1, 2, 27.
[^15]: Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, 37 C.L.R. (4th) 7 at para. 18.
[^16]: Schaer v. Barrie Yacht Club (2003), 123 A.C.W.S. (3d) 1005 (Ont. S.C.) at para. 18.
[^17]: Canadian Judicial Council and National Judicial Institute, Self-Represented Litigants and Self-Represented Accused, April 2007.
[^18]: Major v. York Region Children's Aid Society,2011 ONSC 6695, 210 A.C.W.S. (3d) 312 at paras. 16-21.