Court File and Parties

BARRIE COURT FILE NO.: CV-17-0888 DATE: 2018-03-05 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: John Ironside, Applicant AND: Darren Roskam, Respondent

BEFORE: The Honourable Mr. Justice C.F. de Sa

COUNSEL: Owen Thompson, for the Applicant Darren Roskam, Self-Represented

HEARD: In-Writing

Endorsement

[1] I decided in favour of the Applicant declaring Mr. Darren Roskam a vexatious litigant under s. 140 of the Courts of Justice Act. Mr. Roskam’s outstanding actions were stayed pending leave being granted for their continuance. The Applicant is now seeking costs against Mr. Roskam for the application. He is seeking his costs in the amount of $23,000. Mr. Roskam takes the position that costs are not warranted.

Analysis

[2] Costs awards under section 131 of the Courts of Justice Act, are highly discretionary.

[3] Rule 57.01 of the Rules sets out the factors to be considered including the amount of costs an unsuccessful party would expect to pay and the complexity of the proceeding. Assessing costs is not simply a matter of arithmetic, where dockets are tabulated. The overarching principle is that the court’s assessment should be fair and reasonable in light of all the circumstances.

[4] Section 57.01 provides as follows:

57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(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;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(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;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs. R.R.O. 1990, Reg. 194, r. 57.01 (1); O. Reg. 627/98, s. 6; O. Reg. 42/05, s. 4 (1); O. Reg. 575/07, s. 1.

[5] The history between the parties is unusual. As I noted in my earlier decision, the two parties have been fighting with each other for years. While the application was a clear victory for Mr. Ironside, this victory must be considered in context. Mr. Ironside has caused many of his own problems by engaging with Mr. Roskam. As I noted in my earlier judgment, Mr. Ironside has not come to this Court for relief with clean hands.

[6] Mr. Roskam is not in a position to pay any costs if ordered to do so. The Applicant owes outstanding costs to Mr. Roskam which he has chosen not to pay.

[7] Given the circumstances here, I am disinclined to further encourage problems between these parties by granting a costs award that will not be paid. It merely invites further interaction between the parties. Mr. Roskam’s outstanding claims have been stayed. He has demonstrated a commitment to move on with his life. I will not make an order for costs that will stand in the way of that.

[8] I will require that each party bear their own costs.

Justice C.F. de Sa

Date: March 5, 2018