Court File and Parties

COURT FILE NO.: CV-19-80191 DATE: 2021-02-16 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: NATIONAL BANK OF CANADA, Plaintiff AND MARCEL GUIBORD, Defendant

BEFORE: Mr. Justice Pierre E. Roger

COUNSEL: Michael S. Myers, for the Plaintiff Marcel Guibord, Defendant, self-represented

HEARD: In writing

Costs Endorsement

[1] The plaintiff brought a motion to strike the defendant’s Statement of Defence and Counterclaim on the basis that they disclose no reasonable defence and cause of action, and to obtain a judgment for possession of the property under the terms of a mortgage.

[2] I dismissed the plaintiff’s motion (see National Bank of Canada v. Guibord, 2020 ONSC 8137) because I found that without evidence it was not plain and obvious that the Statement of Defence and Counterclaim discloses no reasonable defence or has no reasonable prospect of success. Nonetheless, I noted my reservations about the soundness of the defendant’s arguments.

[3] I received two identical sets of costs submissions from the defendant, seeking costs of $450,000 for a motion heard in writing. The plaintiff argues that there should be no costs.

[4] The awarding of costs is a discretionary exercise to be made considering all relevant circumstances (see s. 131(1) of the Courts of Justice Act R.S.O. 1990, c. C.43 and Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; and see also cases such as Boucher v. Public Accountants Council (Ontario) (2004), 2004 ONCA 14579, 71 O.R. (3d) 291 (Ont. C.A.) and Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228, 433 D.L.R. (4th) 112).

[5] The defendant was successful on the motion. It was an important, yet uncomplicated motion.

[6] The conduct of the defendant unnecessarily lengthened the motion. Notably, the defendant filed countless materials for the motion, none of which were helpful to the Court (except for the Statement of Defence and Counterclaim). As well, the defendant unsuccessfully and unnecessarily repeatedly appealed the procedural order of Justice Gomery, which simply provided how the motion was to proceed. Moreover, the defendant’s costs submissions are similarly unhelpful to the Court’s determination of costs.

[7] In addition, the amount sought for costs by the defendant is completely disproportionate and unreasonable. The defendant provided no particulars with respect to the amount sought for costs and no evidence that he incurred costs or that he incurred some or any loss of opportunity. At most, in the circumstances of this case, I doubt if the costs of the defendant could exceed about $3,500.

[8] In any event, considering the circumstances, what is fair and reasonable is to order no costs for this motion.

Mr. Justice Pierre E. Roger Released: February 16, 2021