COURT FILE NO.: 1444/19
DATE: 20210331
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J. GARDNER HODDER, a Professional Corporation carrying on business as Hodder Barristers
Applicant
– and –
EDWIN EOUANZOUI and KARINE EOUANZOUI, also known as KIANRE BONIFACE EOUANZOUI
Respondents
Eric Golden/Chad Kopach, for the Applicant
Self represented
HEARD: In writing (London)
costs decision
Beaudoin J.
Background
[1] On December 14, 2020, the Applicant, J. Gardner Hodder (“Hodder”) brought an Application for Directions pursuant to s.16(2) of the Arbitration Act, 1991, S.O. 1991, c. 17. I released my Decision on January 14, 2021[^1]. I have now received and considered the written costs submissions from the parties.
The Applicant’s Submissions
[2] Hodder seeks costs in the amount of $11,743.35 on a partial indemnity basis. He further asks that these costs be payable forthwith and that these costs be paid before the Respondents, Edwin Eouanzoui and Kianre B. Eouanzoui (“the Eouanzouis”) can take any further steps in the arbitration they have commenced, and which triggered this Application.
[3] Hodder submits that this amount is proportional to the amount in issue and within the expectation of the Eouanzouis. He refers to the Eouanzouis’ Costs Outline delivered the day after the hearing, wherein they sought the sum of $8,701.25. The Applicant notes that the Respondents’ lawyer, Patrick Wymes (“Mr. Wymes”), was only retained for the purposes of arguing the Application and did not draft any material.
[4] Hodder notes his success on the Application and relies on the factors set out in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[5] Hodder claims that he has been held hostage for over four years in an arbitration commenced by the Eouanzouis on September 6, 2016, purportedly for the assessment of two accounts rendered on or about September 9, 2015 in the amount of $48,125.74.
[6] The Eouanzouis had requested that French be the first language of the arbitration. ADR Chambers appointed a bilingual arbitrator.
[7] Hodder argues that, since the Arbitrator resigned following the ultimatum sent to her by Mr. Wymes on April 11, 2019, the only steps that the Respondents have taken were to seek a return of their deposit of $15,000 paid as security for the costs of the Arbitrator and ADR Chambers (the “Deposit”). Hodder emphasizes that the Respondents have made no efforts to move the arbitration forward.
[8] Hodder maintains that the Notice of Arbitration (“NOA”) in issue is not simply a request for an assessment of his accounts. He argues that it is clearly a cloak for negligence and defamation claims against him.
[9] As a result of these non-assessment allegations contained in the NOA, Hodder had to report the matter to his liability insurers, the Lawyers Professional Indemnity Corporation (“LawPro”). LawPro appointed Blaney McMurtry LLP to represent Hodder and his firm on the non-assessment claims.
[10] Hodder cites the various delay tactics on the part of the Respondents, and the chronology of the arbitration summarized in the following paragraphs.
[11] Mr. Wymes was the second lawyer retained by the Eouanzouis. He originally sought to withdraw from the arbitration his clients had contractually agreed to. Mr. Wymes then took the position that LawPro’s counsel had no standing in the matter and that the NOA was for nothing more than an assessment. Mr. Wymes then proposed amendments to the NOA, but these amendments failed to address the problems identified by Hodder’s counsel.
[12] The Arbitrator set a deadline for Mr. Wymes to bring a Motion to Amend the NOA. Mr. Wymes then sought an adjournment and repeated that his clients only sought an assessment and that LawPro had no business being involved.
[13] As a result, Hodder’s counsel brought a Motion to Strike the non-assessment portions of the NOA. (the “Motion to Strike”). This was scheduled to be heard, on consent of all parties, on December 3, 2018.
[14] Mr. Wymes then advised that he was not representing the Eouanzouis who would be representing themselves on the Motion to Strike. He then advised that neither he nor his clients would attend on December 3, 2018. The Arbitrator then directed all parties to attend on that date. The Arbitrator proposed to mediate the dispute. Hodder refused to participate in the mediation unless the Eouanzouis were represented by counsel.
[15] On April 11, 2019, Mr. Wymes, acting as agent for the Eouanzouis, provided the Arbitrator with a 30-day deadline for the Arbitrator to comply with several terms and conditions, failing which the deposit was to be returned to the Eouanzouis and they would have the right to select another arbitrator from another dispute resolution service.
[16] The Arbitrator advised Mr. Wymes that she was unable to achieve the tasks set out in the stipulated time frame and she was therefore assuming that his clients had withdrawn their consent for her to act as the Arbitrator. As a result, she lacked jurisdiction to decide the dispute. At Hodder’s insistence, ADR Chambers has continued to hold the deposit.
[17] Since ADR Chambers had no other bilingual arbitrators, Hodder brought his Application for Directions.
The Respondents’ Submissions
[18] The Respondents claim that they are entitled to costs and they seek the amount of $8,701.25
[19] They claim that there was divided success on the Application in that I ordered that the arbitration continue in London and that ADR Chambers continue to hold the deposit.
[20] The Eouanzouis submits that Hodder lost the following claims for relief in his Application:
That his Motion to Strike costs be heard first and be payable out of their $15,000 deposit.
Hodder sought the appointment of another arbitration company.
Hodder sought the payment of the $15,000 deposit to be deposited with the newly appointed company.
Hodder sought to have the arbitration resume in Toronto.
[21] The Respondents agree that Hodder sought instructions; essentially, to have the arbitration bifurcated. The Eouanzouis claim they agreed to this but on their own terms.
[22] They argue that the Applicant made overreaching demands in his Application and that he should not be entitled to costs but that they should be entitled to theirs. They also rely on the factors set out in Rule 57.01.
[23] The Eouanzouis claim that Hodder continues to defame them in his written costs submissions to the court.
[24] They continue to argue that they only sought an assessment of Hodder’s account and that LawPro sought to delay and frustrate them in their exercise of a right to an expeditious, inexpensive assessment of the Hodder account. The Eouanzouis maintain that Hodder had no right to interfere with the return of their deposit.
Conclusion
[25] In light of the submissions that have been put forward, I find it necessary to make the following observations:
The Eouanzouis’ original NOA was fundamentally flawed insofar as it purported to seek only an assessment of Hodder’s account. While a solicitor’s negligence can be a factor in reducing a solicitor’s account, the Respondents sought more than that. They made claims of defamation and they sought damages.
The claims made in the NOA unnecessarily complicated matters and triggered LawPros’ involvement. In that regard, the Eouanzouis and their former counsel, Mr. Wymes, fail to understand the significance of the allegation set out the NOA. Mr. Wymes’ suggested amendments failed to address the problems his clients had created.
The Eouanzouis and their counsel also seem to ignore the need for expert evidence required to support the findings of negligence alleged. The Respondents do not seem to appreciate the law and factual findings necessary to support their claims of defamation or why these claims are beyond the scope of an assessment.
Mr. Wymes’, “on-off” retainer, and his status as an “agent” were complicating factors. His involvement did nothing to improve the situation.
Hodder properly maintained his objection to the return of the ADR Chambers deposit to the Eouanzouis. Hodder has a valid claim for costs thrown away on the Motion to Strike. I ordered ADR Chambers to continue to hold that deposit.
There is no evidence that the Eouanzouis did anything to advance the arbitration. It is only because of the steps taken by Hodder that it was eventually discovered that ADR Chambers now has a bilingual arbitrator who can now proceed to hear the arbitration. This eliminated the need to consider another arbitration service provider.
[26] While the Applicant originally sought to have the issue of costs thrown away on the Motion to Strike heard on the return of the Application, that issue was quickly abandoned and was not argued. It did not have to be addressed by Mr. Wymes.
[27] The Respondents’ agreement to bifurcate the arbitration was only communicated at the hearing of the Application. I do not agree that this agreement was solely on their terms. Mr. Wymes continued to argue that the court had no jurisdiction to hear the Application.
[28] The fact that the arbitration will continue in London is of no consequence since it is likely to proceed virtually given the COVID-19 restrictions.
[29] In summary, the Applicant was forced to bring this Application for Directions. I conclude that the Eouanzouis’ actions and their delivery of an ultimatum forced the resignation of the original arbitrator.
[30] The Respondents had argued that this Court had no jurisdiction to hear the Application. They failed with respect to all of the substantive issues that were argued by their counsel. The Applicant was entirely successful on this Application save and except for one issue that was no longer in issue.
[31] Having regard to the factors set out in Rule 57.01 and their application to the facts of this case, I order the Respondents to pay the Applicant his costs which I fix in amount of $ 9,000.00, which amount is payable forthwith.
Mr. Justice Robert N. Beaudoin
Released: March 31, 2021
COURT FILE NO.: 1444/19
DATE: 20210331
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J. GARDNER HODDER, a Professional Corporation carrying on business as Hodder Barristers
Applicant
– and –
EDWIN EOUANZOUI and KARINE EOUANZOUI, also known as KIANRE BONIFACE EOUANZOUI
Respondents
COSTS DECISION
Beaudoin J.
Released: March 31, 2021
[^1]: Hodder v. Eouanzoui, 2020 ONSC 7905