COURT FILE NO.: 58869/19

DATE: 20191213

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LLOYD PATRICK DETTERING, Plaintiff

AND:

PETER DONALD WALCHUK, KATHRYN CECILIA WALCHUK, MATTHEW HOPE, and NICOLE LYNN HOPE, Defendants

BEFORE: The Honourable Mr. Justice Robert B. Reid

HEARD IN WRITING: October 7, 2019

decision on costs

[1] By decision dated October 22, 2019, I dismissed the action of the plaintiff pursuant to the provisions of rule 2.1.01 of the Rules of Civil Procedure. By the terms of that order, I provided that if costs were requested, submissions could be made, to be filed with the court no later than December 4, 2019. Costs submissions were received from the defendants. No costs submissions were received from the plaintiff.

[2] My discretion to award costs derives from s. 131 of the Courts of Justice Act. The factors to be considered in exercising my discretion are found in rule 57.01 of the Rules of Civil Procedure.

[3] In their submissions, the defendants seek full indemnity costs in the all-inclusive amount of $10,981.79.

[4] I note that the provisions of rule 2.1.01 are designed to provide a streamlined procedure for disposing of certain types of litigation in order to minimize expense but still be consistent with the principles of fairness and natural justice. The procedure is a summary one. It is invoked by the defendants before the necessity of filing a statement of defence.

[5] In this case, an initial request was received from the defendants dated April 30, 2019 requesting a stay or dismissal of the claim. My decision of May 21, 2019 was made without further submissions by the defendants. I ordered that the statement of claim be struck out but with leave to amend.

[6] The plaintiff amended the statement of claim and served it on the defendants. In response, by letter dated July 11, 2019, counsel for the defendants requested, once again, that the action be dismissed. In response to the notice in form 2.1A given to the plaintiff by the registrar, the plaintiff filed a submission which was sent to counsel for the defendants on September 3, 2019 inviting submissions. A ten-page response together with attachments was received from the defendants dated September 16, 2019 and a further letter was received dated October 7, 2019 identifying the file numbers of four other cases commenced by the plaintiff in the Superior Court in 2019 and two ongoing proceedings in the Small Claims Court.

[7] The plaintiff filed an additional ten-page handwritten document with attachments called a “reply” dated September 20, 2019 and counsel for the defendants filed a further letter dated October 8, 2019 in response. Neither of those documents were either solicited nor permitted by the provisions of rule 2.1.01 and they were not reviewed by me.

[8] In reviewing the factors set out in rule 57.01, I note that an order for costs is presumptively granted to the successful party. Although the provisions of rule 2.1.01 are different from the ordinary civil procedure, it is reasonable to consider a costs award against the plaintiff.

[9] In my decision of October 22, 2019, I determined that this was not a case that deserved to be litigated through to a decision on the merits. For the reasons set out in that decision, I concluded that the plaintiff’s claim was mainly an attempt to relitigate previous matters where he did not agree with the result. I found that to be an abuse of process despite what may be strongly held views on the plaintiff’s part. I also found the allegations against the defendants, sufficiently lacking in a legal basis or in legal merit, to be frivolous.

[10] Even though the plaintiff was self-represented, he cannot on that basis be insulated from adverse costs awards that would otherwise apply. In my view, the defendants are entitled to an award of costs payable by the plaintiff.

[11] However, it is appropriate to note that rule 57.01 provides, in part, that any costs award should be proportional and that an award should be reflective of what an unsuccessful party could reasonably expect to pay. It is unreasonable to think that the plaintiff could have contemplated responsibility for a costs award in the amount requested by the defendants who, despite not having filed a statement of defence, have indicated an expenditure of 41.2 hours of lawyer time and four hours of law clerk time.

[12] As indicated in my decision of October 22, some of the submissions by the defendants were not relevant and others were not considered.

[13] In keeping with the summary nature of the process under rule 2.1.01, a modest costs award is in order and therefore there will be an order that the plaintiff pay the defendants costs fixed in the all-inclusive amount of $2,088.40 within 60 days.

Reid J.

Date: December 13, 2019