Court File and Parties

COURT FILE NO.: CV-18-645 DATE: 2019-06-06 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MUHAMMAD SHAFIQUE, Plaintiff AND: THE UNIVERSITY OF WATERLOO, Defendant

BEFORE: Justice D.A. Broad

COUNSEL: Plaintiff - Self-represented Sean Murtha, for the Defendant

COSTS ENDORSEMENT

[1] The parties have now delivered their written submissions on costs in respect of the defendant’s motion to strike the plaintiff’s Statement of Claim and the motion for disclosure that the plaintiff brought against the defendant on short notice which was argued before Justice Braid on January 17, 2019. Justice Braid dismissed the plaintiff’s motion and reserved the costs to the judge hearing the defendant’s motion to strike the plaintiff’s pleading.

[2] The defendant argues that it was successful on its motion as the plaintiff’s pleading was ordered struck in its entirety. It seeks costs on a partial indemnity basis in respect of the motion to strike in the sum of $15,721.91 comprised of fees in the sum of $11,658.50, appearance fee for argument in the sum of $1,400.00, and HST on fees and disbursements in the sum of $965.81.

[3] The defendant further seeks costs of the motion before Justice Braid in the sum of $3,489.08 comprised of fees in the sum of $2,980.50, HST on fees in the sum of $387.46 and disbursements in the sum of $121.12.

[4] The plaintiff does not appropriately address the issue of costs in his submissions which largely consist of a recitation of his version of the steps taken in the litigation to date, including in some instances a repeat of scandalous and unjustified allegations of wrongdoing on the part of counsel for the defendant and court staff, for which the plaintiff was cautioned by both Justice Braid and myself.

[5] The plaintiff submits that “the defendant wants to use costs as tool in this proceeding knowing the fact that the plaintiff is unemployed for more than 2 years, has family to feed, and is in poor financial health.”

[6] The plaintiff points out that he was granted leave to amend his Statement of Claim. He seeks costs against the defendant in the amount of $16,902 for the motion to strike, comprised of costs for preparation of $13,737.50, appearance fee for submissions of $1,050 and disbursements in the sum of $365.00. He also seeks costs in respect of the motion before Justice Braid in the sum of $3,170.00 comprised of costs of preparation in the sum of $3,150.00 and disbursements in the sum of $20.00.

Guiding Principles

[7] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, provides that "subject to the provisions of an Act or rules of court, the costs of and incidental to a 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."

[8] The factors to be considered by the court, in the exercise of its discretion on costs, are set forth in sub-rule 57.01(1) of the Rules of Civil Procedure, to which I have had regard.

[9] It is well known that the overall objective in dealing with costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful party. The expectation of the parties concerning the quantum of costs is a relevant factor to consider. The court is required to consider what is "fair and reasonable" having regard to what the losing party could have expected the costs to be (see Boucher v. Public Accountants Council (Ontario), [2004] O.J. No. 2634 (Ont. C.A.) at para. 26 and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, [2005] O.J. No. 160 (Ont. C.A.)).

[10] The usual rule in civil litigation is that costs follow the event and that rule should not be departed from except for very good reasons (see Gonawati v. Teitsson [2002] CarswellOnt 1007 (Ont. C.A.) and Macfie v. Cater, [1920] O.J. No. 71 (Ont. H.C.) at para 28).

Discussion

[11] In my view the defendant’s motion to strike the plaintiff’s Statement of Claim was necessary given the serious deficiencies in the plaintiff’s pleading and its failure to adhere to the most basic rules of pleading.

[12] The defendant was the more successful party on the motion, however not entirely. The defendant sought to strike out the Statement of Claim without leave to amend. The Statement of Claim was struck out in its entirety, but with leave to amend to claim certain discrete and identified claims.

[13] I see no good reason to depart from the usual rule that costs should follow the event (or the outcome).

[14] The plaintiff’s own Costs Outline offers insight into what his reasonable expectations should have been respecting the quantum of costs he might be ordered to pay if he was unsuccessful on the motion. The amount of the plaintiff’s claim for costs of the motion to strike exceeds that of the defendant by $1,180.00 notwithstanding that he was self-represented.

[15] As indicated above, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case. I would grant costs to the defendant for the motion to strike but would reduce the amount by one-third in recognition of the fact that the plaintiff was given leave to amend his pleading.

[16] I accept that the plaintiff’s financial circumstances would make it difficult for him to pay a substantial costs award. I would therefore reduce the defendant’s costs of the motion to strike to the all-inclusive sum of $8,000.00 in recognition of this.

[17] I agree with the defendant that the plaintiff’s conduct in reference to the motion before Justice Braid may have justified a costs award against him on a substantial indemnity scale. However the defendant claims costs of that motion on a partial indemnity basis only.

[18] I find the amount claimed by the defendant for the motion before Justice Braid to be reasonable in all of the circumstances.

Disposition

[19] It is ordered that the plaintiff pay costs to the defendant in the following amounts:

(a) Costs for motion to strike - $8,000.00 (b) Costs for plaintiff’s motion before Justice Braid - $3,489.08

TOTAL - $11,489.08

[20] The plaintiff is ordered to pay the said sum of $11,489.08 in respect of costs within thirty (30) days hereof.

[21] Approval by the plaintiff of the formal order to implement this Endorsement is waived.

D.A. Broad Date: June 06, 2019