Court File and Parties
Court File No.: 14-60630 Date: 2018-12-28 Ontario Superior Court of Justice
Between: Martine Patriarcki, Plaintiff And: Kevin Butler and Heather Austin-Skaret, Defendants
Counsel: Self-represented, for the Plaintiff Stephanie Lewis, for the Defendants
Heard: Written Submissions (at Ottawa)
Cost Decision
Justice P. Kane
[1] This proceeding was dismissed by summary judgment for the reasons issued and dated March 7, 2018.
[2] The defendants seek costs on a scale of substantial indemnity in the amount of $41,258.00, inclusive of legal fees, H.S.T. and disbursements.
[3] The amount of legal fees consists of:
(a) total fees of $39,248.00;
(b) fees in the amount of $35,323.00, on a substantial indemnity scale; or
(c) $25,904.00 on a partial indemnity scale.
[4] The plaintiff submits that the defendants are not entitled to costs for the following reasons:
(a) service of the defendants’ cost submissions on the plaintiff required, pursuant to an earlier agreement between the plaintiff and counsel for the defendants, that any documents served on her personally or via courier would require the plaintiff`s signature thereon acknowledging her receipt. The plaintiff alleges bad faith and unethical conduct by the defendants counsel in not obtaining her signature acknowledging her receipt of service of the defendants’ cost submissions;
(b) the defendants failed to serve an affidavit of documents prior to the motion for summary judgment;
(c) the defendants improperly brought their motion for summary judgment prior to examination for discovery;
(d) counsel for the defendant laughed at or ignored the plaintiff’s written offer to settle;
(e) counsel for the defendants wasted time and money, such as their disbursements for translation services;
(f) counsel for the defendants was late in attendance at appointments before the Master on two occasions;
(g) the defendants’ counsel arranged for one of her students to obtain additional jurisprudence during argument of the motion which it is alleged were irrelevant to the issues on the motion and then allowed students to be present in the courtroom with instructions to stare at the plaintiff in order to intimidate her;
(h) the court on June 24, 2015 ordered that this action proceed in French;
(i) the defendants through counsel refused to participate in mandatory mediation pursuant to R. 24.1 of the Rules of Civil Procedure;
(j) defendants’ counsel deliberately sabotaged the plaintiff’s right to a fair hearing;
(k) the defendants failed to serve the plaintiff with a copy of their cost submissions thereby impairing the plaintiff’s opportunity to respond thereto;
(l) counsel for the defendants acted unethically and unprofessionally by « covering up » or withholding the documents relied upon by the defendants for this motion for summary judgment until the hearing of the summary judgment motion; and
(m) the plaintiff’s low CPP disability income is a basis to deny an award of costs or is relevant to the amount that an unsuccessful party could reasonably expect to pay.
[5] The plaintiff in the alternative seeks an order that the Court order an assessment of the defendants’ legal fees.
[6] The plaintiff’s written response to the defendants’ cost submissions consists of :
(a) a 47-page written “Response to Nelligan O’Brien Payne (for LawPro) LLP’s Bill of Costs” (“Reply”); and
(b) her April 17, 2018 two-page affidavit alleging that by April 6, 2018, she “had not received correspondence from Nelligan LLP” however because she anticipated the court will not believe that statement, she “will prepare a reply – without a copy of their documents – bill of costs”.
[7] Accompanying the defendants’ cost submissions is an affidavit of service of those submissions on the plaintiff which states “le Mémoire sur les dépens des défendeurs était signiféé par le service de messagerie, QA Courier, le 4 avril 2018 à la demanderesse au 301-211, avenue Second, Ottawa, ON., la résidence de la demanderesse”.
[8] The defendants subsequently sent to the court:
(a) a certificate to the defendants’ law firm from QA Courier stating it delivered an envelope from that law firm addressed to the plaintiff to someone who signed for it at the residence of the plaintiff at 11:15 a.m. on April 4, 2018; and
(b) a copy of a 17-page written statement from the plaintiff dated April 6, 2018 quoting portions of the summary judgment decision she disagreed with and repeating several of her arguments used in unsuccessfully opposing summary judgment which dismissed her action.
[9] One might perhaps wonder given what was at issue why the plaintiff instead of lengthy response, including quotes from jurisprudence and the rules as to cost, allegedly without knowing what costs were claimed or the defendants’ arguments for cost, did not simply obtain a copy of the defendants’ written submissions from the court file or from defendants’ counsel.
[10] The defendants provided a courier receipt dated April 4, 2018 showing that the Plaintiff received their costs submissions which included a copy of the defendants’ Mémoire Des Défendeurs Sur Les Dépens and its supplementary reasons extending the time for the plaintiff to serve and file any further reply thereto.
[11] The defendants’ written cost submissions include the hourly rates per lawyer and students per scale of costs, the time expended by those individuals plus the amount of applicable taxes and category of disbursements. The plaintiff inaccurately submits she did not have this information upon filing her reply.
Analysis
[12] The list of disbursements from the defendants contains no charges for translation.
[13] The plaintiff implies without evidence that counsel docketed the time between the schedule appointment and her late arrival.
[14] There is no evidence as to any intimidation tactics as alleged by the plaintiff. It is quite common for students at law to attend court hearings for educational reasons.
[15] Stephanie Lewis as counsel for the defendants argued this motion in French. The plaintiff’s above written reply and affidavit to the defendants’ French written cost memorandum are in English with the plaintiff thereby contravening the same 2015 order that this action proceed in French.
[16] The court’s March 7, 2018 summary judgment motion decision was sent by the court to the plaintiff on March 7, 2018 via regular mail at her home address. The plaintiff obviously received that decision as she quotes therefrom in her April 6, 2018 correspondence to defendants’ counsel and in her April 17 and May 4, 2018 submissions as to the costs claimed by the defendants.
[17] The décor at the entrance, at reception and in a conference room of the defendants’ counsel law firm is irrelevant as to cost which is based on the hourly rates charged per length of call to the bar which the court finds unreasonable.
[18] The plaintiff’s request for an assessment hearing rather than this court fixing costs has no merit. It is an inappropriate attempt to “forum shop” and prolong this proceeding.
[19] The plaintiff’s 47-page submissions as to costs:
(a) essentially re-argue elements of her opposition to summary judgment;
(b) question the validity of findings in the summary judgment decision; and
(c) attack the conduct of defence counsel on the summary judgment motion which has minor bearing on the cost issues given the defendants’ success in obtaining summary judgment dismissing this proceeding.
Discretion as to Costs
[20] Section 131 one of the Courts of Justice Act grants a broad discretion in the determination of costs. It states :
S. 131(1) Subject to the provisions of an Act or rules of the court, the costs of an incidental to any proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the cost shall be paid.
[21] That broad discretion does not detract from the requirement that cost determinations must be made on a principled basis which requires due consideration of the factors set out in rule 57.01(1) in order to achieve a just and reasonable determination: Geographic Resources Integrated Data Solution Ltd. v. Peterson 2013 ONSC 1041 (Div. Crt). para 15.
[22] The responsibility of the court generally is to fix an amount of costs that is fair and reasonable for the unsuccessful party to pay rather than an amount fixed by the actual cost incurred by the successful litigant: Boucher v. Public Accountants Council for the Province of Ontario et al 2004 14579 (ON CA), 2004, 71 O.R. (3d) 291 (C.A.) at p. 299.
Rule 57.01 Factors
Result – R. 57.01(1)
[23] The defendants successfully defended this proceeding in obtaining the dismissal thereof by summary judgment.
[24] The plaintiff failed to recover any of the millions of dollars of damages she claimed.
[25] Cost should normally follow the above results as reflected in the opening words of R. 57.01(1).
Written Settlement Offer – R. 57.01 and R. 49.01
[26] Written offers of settlement served on the other party and not accepted must be considered pursuant to R. 49.10(1).
[27] The plaintiff served a written offer of settlement on November 15, 2016 which remained open for acceptance until commencement of argument of the summary judgment motion. The plaintiff offered therein to settle her claims upon payment by the defendants in the amount of $500,000. The plaintiff relies upon that offer in opposing an award of costs to the defendants.
[28] The impact of offers of settlement pursuant to R. 49.10 has application only when the plaintiff has served an offer of settlement and recovered a judgment of some value: H.L. Staebler Company Ltd. V. Allan (2008) 2008 64396 (ON SC), 92O.R. (3d) 788, para 8 and S.A. Strasser Ltd. v. Town of Richmond Hill (1991), 1990 6856 (ON CA), 1 O.R. (3d) 243 (CA). With no recovery, Ms. Patriarcki’s offer of settlement has no cost consequences.
Experience, Rates Charged and Hours Expended – R. 57.01(1)(O.a)
[29] The hourly rates indicated by defence counsel are appropriate given counsel’s year of call.
[30] Eight lawyers for the defendants docketed time that is higher than usual and led to increased expenses. Four of those lawyers however each docketed less than three hours.
[31] Of the 262 hours docketed, 201 of those hours were docketed by two more junior lawyers.
[32] The docketed hours by senior counsel, junior counsel, articling students and law clerks demonstrates that there was appropriate delegation to more junior legal staff with resulting lower hourly rates.
[33] There should be some reduction for the high number of lawyers involved.
Reasonable Expectation of Unsuccessful Party – R. 57.01(O.b)
[34] Ms. Patriarcki relied upon the fact she is unemployed and self-represented. Those are not justification for her multiplicity of allegations, claims, collateral attacks of prior decisions and efforts to avoid or contest service in the proceeding. She was aware the defendants were represented by counsel and would claim all reasonable costs against her and should have expected her obligation to pay costs if she was unsuccessful.
Apportionment of Liability – R. 57.01(1)(b)
[35] This factor is not relevant in this case.
Proceeding Complexity – R. 57.01(1)(c)
[36] This factor is not relevant in this case.
Importance of Issues – R. 57.01(1)(d)
[37] The damages sought by the defendants are financially important to the plaintiff. The nature of her allegations against the defendant counsel is undoubtedly important to them.
Conduct Tending to Lenghen Proceeding Unnecessarily - R. 57.01 (1)(e)
[38] This factor is not applicable.
Improper, Vexatious or Unnecessary steps - R. 57.01 (f)
[39] There is no evidence of unnecessary or vexatious steps taken during the procedure by either party.
[40] The plaintiff however alleges that the defendants’ counsel acted improperly in refusing to participate in mandatory mediation pursuant to R. 24(1). The plaintiff in response failed to seek relief as to this alleged failure.
[41] The defendants did not reply to this argument.
[42] Participation in mediation is mandatory pursuant to R. 24.1. The failure by the defendants to complete this step is a relevant consideration notwithstanding that a successful outcome to mediation was highly unlikely as evidenced by the plaintiff’s $500,000 offer of settlement and the court’s subsequent dismissal of her proceeding.
Admission Improperly Refused – R. 57.01(1)(g)
[43] This factor is not a relevant consideration. The plaintiff is incorrect the defendants breached this requirement by failing to admit the negligence of Mr. Butler.
Appropriate Scale
[44] The defendants seek the higher scale of substantial indemnity as they allege the plaintiff’s allegations:
(a) were manifestly unfounded;
(b) were irresponsible or malicious;
(c) attacked their character, reputation, and integrity; and
(d) included unsubstantiated allegations of bad faith, incompetence, negligence and lies.
[45] Courts should not move to the higher substantial indemnity scale simply because a former client alleges negligence and therefore inadequate representation. Apart from Rule 49.10 for a court to award substantial indemnity costs as a matter of judicial discretion it must find that the parties have been guilty of egregious misconduct in the proceeding.
[46] The plaintiff is a combative litigant with considerable experience in the courts. That said, costs on a substantial indemnity scale are not appropriate simply because she is suing members of the legal profession.
[47] The above examples cited from the claim involve allegations of negligence and incompetent services by the defendants. Such allegations do not automatically attract substantial indemnity costs. Such allegations do not allege fraud and do not constitute a “rare and exceptional case” for an award of costs on the higher scale of substantial indemnity.
Disbursements
[48] The disbursements claimed are appropriate.
Conclusion
[49] Given the higher number of lawyers working on this file, the apparent refusal to mediate and the limited financial circumstances of the plaintiff, the court determines that the fair and reasonable cost award in this case pursuant to Boucher are:
(a) legal fees – $18,000.00 (45.86%);
(b) disbursements – $684.00; and
(c) TVH – $2,340.00;
Total costs awarded: $21,024.00
Justice P. Kane
Released: December 28, 2018
COURT FILE NO.: 14-60630
DATE: 2018/12/28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Martine Patriarcki
Plaintiff
– and –
Kevin Butler and Heather Austin-Skaret
Defendants
Cost Decision
KANE J.
Released: December 28, 2018