Court File and Parties
COURT FILE NO.: 648/16 DATE: 2018 09 10 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Andrew Saiedy, Plaintiff AND: Waste and Environmental Management The City of Markham, Defendant
BEFORE: Justice G.D. Lemon
COUNSEL: Andrew Saiedy, in person Carla V. Black, Counsel for the Defendant
HEARD: September 4, 2018
Endorsement
The Issue
[1] Mr. Saiedy requests an order to amend the record of this proceeding to put his initials (A.S.) instead of his full name “on public domain such as .” He also seeks costs against the City of Markham.
[2] At the end of submissions, I dismissed Mr. Saiedy’s motion with reasons to follow. These are those reasons.
Background
[3] Mr. Saiedy commenced this proceeding in August of 2016. He had been employed by the City of Markham as a part time recycling depot attendant from September, 2004 until December 22, 2014. At that time, he was terminated and paid his statutory entitlements.
[4] In his Statement of Claim, he seeks $495,000 in damages arising from his termination.
[5] I have dealt with two motions to deal with striking parts of the Statement of Claim.
[6] As a result of my orders, Mr. Saiedy has filed notices of motion for leave to the Divisional Court and appealed to the Ontario Court of Appeal. All of those steps generated endorsements or orders using Mr. Saiedy’s full name.
[7] Mr. Saiedy submits that, as his full name has been mentioned in endorsements and then placed in the public domain by such legal search resources as , he will not be able to find new employment. He is concerned that potential employers will search his name, see the litigation and not hire him.
[8] In response, Markham takes no position with respect to Mr. Saiedy’s request to amend the record but submits that it needs to respond to his request for costs against Markham. Counsel has also been kind enough to provide me with the relevant authorities in the area.
Analysis
[9] The leading cases in this area are R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 and Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 188.
[10] In short, Mr. Saiedy must show that the order is necessary to prevent a serious risk to an important interest in the context of the litigation and that the order would be proportional to its deleterious effects to the public interest in having open and accessible court proceedings.
[11] I understand Mr. Saiedy’s concerns for the future but he has provided no evidence that such concerns are real. He has not shown that the order is necessary.
[12] Even if there was some evidence of that concern, my order would only affect the proceedings before me. Without further orders in other courts, those rulings would still be in the public record.
[13] No one other than Markham has been served with this motion. Mr. Saiedy refers to , but there are a host of other locations that this action may be recorded. No order that I might make would have any effect on anyone not given notice of the motion.
[14] I know of no way that my order could have a retroactive effect. Such an order as this might be brought before an action is commenced, but not after the materials have made it to the web.
[15] There are few cases where the open court policy has been given secondary importance to the interests of one party or the other. Those that have, are in circumstances much more compelling than Mr. Saiedy puts forward. Those cases are set out in Markham’s materials for Mr. Saiedy to read; I need not set them out here. The importance of having open and accessible court decisions are more important than Mr. Saiedy’s fears of proceeding with the action.
Result
[16] For those reasons, the motion is dismissed.
Costs
[17] Markham seeks costs fixed in the amount of $5,265.58. It submits that Mr. Saiedy’s motion is frivolous and vexatious and that costs should follow on a full recovery basis.
[18] Mr. Saiedy submits that he has little ability to pay such costs as he is a student. He also points out that at a pre-trial, at least one judge suggested that he bring such a motion. He asks that no costs be awarded against him.
[19] The parties are familiar with the authorities as I have already dealt with two motions and two costs endorsements. I need not set out the authorities here.
[20] Mr. Saiedy moved against Markham for costs. Markham was required to respond and Mr. Saiedy was unsuccessful; costs should follow that event.
[21] I do not find that the motion is frivolous or vexatious as meant in legal terms. I have no doubt that the action is frustrating to Markham but that does not mean that the motion is frivolous or vexatious as a factor in costs.
[22] That being said, Mr. Saiedy’s position was, once again, understandable but without legal merit. That has been the hallmark of his litigation. His willingness to soldier on and lose is either brave or foolish. Either way, the taxpayers in Markham should not be required to carry the cost.
[23] Mr. Saiedy may have been told by a judge that if he wanted such an order, he would have to bring a motion. It seems unlikely, however, that he would have been told that he would be successful in such a motion.
[24] It appears that Mr. Saiedy has outstanding costs orders against him in excess of $13,000. He is well aware of the cost consequences of an unsuccessful step in the litigation. On the other hand, only one of the orders have been as much as requested here.
[25] The Bill of Costs shows reasonable time spent and hourly rates.
[26] While Mr. Saiedy’s financial circumstances are a factor, they are not decisive.
[27] Taking all of the factors into consideration, I order Mr. Saiedy to pay $5,000 (inclusive of HST) in costs with respect to this motion.