ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-17-4031 DATE: 2021-04-21
BETWEEN:
Przemyslaw Bobel Plaintiff (Self-Represented)
- and -
Edyta Maria Humecka and Raymond Alexander Patten Defendants
COUNSEL: Alexander Boissonneau-Lehner, for the Defendants
HEARD: In Writing
DECISION ON COSTS
LEMAY J
[1] I heard this trial over eight days in January of this year. It was a claim by the Plaintiff, Mr. Przemyslaw Bobel, that he had been maliciously prosecuted by the Defendants. The Defendant, Edyta Humecka, was Mr. Bobel’s ex-girlfriend. Mr. Bobel also claimed false imprisonment, negligence and nervous shock.
[2] I released my judgment on February 2nd, 2021 (see 2021 ONSC 852) and dismissed all of the Plaintiff’s claims. I have now received costs submissions from the parties, and I am now required to fix the costs for this trial.
Positions of the Parties
a) The Defendants
[3] The Defendants are seeking their costs in the sum of $82,306.68 including disbursements and HST. Most of these costs are claimed on a substantial indemnity basis. The Defendants request substantial indemnity costs on the basis that they made an offer to settle, on the basis that the Plaintiff’s conduct needlessly ran up the costs of the Defendants and is worthy of sanction and on the basis that the costs sought are reasonable overall.
[4] In terms of the Defendants’ submissions, I should note that their written submissions state that the HST on disbursements ($3,696.20) as being more than the actual cost of the disbursements ($3,327.92). However, I have checked the numbers that counsel is seeking, and the $82,306.68 all-inclusive number includes the correct amount for HST on disbursements.
b) The Plaintiff
[5] The Plaintiff argues that there should be no costs payable to the Defendants in this case. He advances this argument on the basis of an offer to settle that he made, on the basis that the Defendants engaged in conduct worthy of sanction and that there are discrepancies in the costs that the Defendants are seeking. The Plaintiff also argues that he should not be unduly burdened with costs.
[6] Several of the Plaintiff’s arguments seek to re-litigate issues that I have already decided against him. For example, the Plaintiff states that “Humecka did commit perjury or alternately make false statements under oath in her Nov 3 2015 affidavit.” The problem with this assertion is that I have already determined that Ms. Humecka made false statements in this Affidavit in order to assist the Plaintiff with having the charges against him dropped (see para. 103-105 of my decision). It is not now open to the Plaintiff to argue that costs should be reduced because Ms. Humecka swore a false affidavit to help him with his criminal matter before the litigation started.
The Principles and Their Application
[7] The principles that apply to costs rules are set out in Rule 49 and Rule 57. The most relevant principles for the purposes of this decision are:
a) Whether an effective offer to settle was made by either side.
b) The conduct of both parties.
c) The reasonableness of the amounts sought by the Defendants.
d) Whether the Plaintiff should have costs reduced because he is a self-represented litigant.
[8] I will deal with each issue in turn. At the outset, I note that costs usually follow the event. The Defendants were successful in resisting the Plaintiff’s claim and, as a result, would normally be entitled to costs for the action.
Offers to Settle
[9] The Plaintiff offered to settle this case at the outset on the basis that the Defendants paid him $950.00 in costs and helped him clearing his record from “the two cases opened with the Peel Regional Police.” The Plaintiff did not do as well as this offer at trial. This offer would have required the Defendants to admit liability when they were not liable for any of the Plaintiff’s claim. Further, the Defendants were not required to pay the Plaintiff any money at all. Finally, on the facts as I understand it, I do not see how the Defendants could have done anything else to assist the Plaintiff in addressing his issues with the Peel Regional Police.
[10] This brings me to the Defendants’ Offer to Settle. On June 4th, 2018, when the Defendants’ current counsel took over the case, an offer to settle was served permitting the Plaintiff to resolve the action on the basis of a without costs dismissal. This offer was open until June 29th, 2018. After that time, the offer remained open for acceptance as long as the Plaintiff paid the costs incurred from June 29th, 2018 until acceptance of the offer on a substantial indemnity basis.
[11] In this case, as in Jassal v. Kaith 2016 ONSC 3650 and Dunstan v. Flying J Travel Plaza 2007 CanLII 44819, the Plaintiffs did not achieve any recovery at all. As a result, the provisions of Rule 49 do not apply to this case. See also S. & A. Strasser v. Richmond Hill (Town) (1990) 1990 CanLII 6856 (ON CA), 1 O.R. (3d) 243 (C.A.).
[12] However, there is discretion to consider the offer to settle as a reason to grant substantial indemnity costs. In this case, the Defendants’ offer to settle was entirely reasonable given the factual findings I made respecting the Plaintiff’s conduct. It is a factor that supports an enhanced award of costs against the Plaintiff.
The Conduct of Both Parties
[13] I start with the conduct of the Defendants. The Plaintiff has made a number of allegations about the Defendants’ conduct. Some of these allegations relate to issues that were raised during the trial and which I have already rejected. However, there are two allegations that I should address that relate to pre-trial and trial conduct.
[14] First, the Plaintiff states that the Defendants’ behavior during the examinations for discovery was concerning. The Plaintiff says that Defendants’ counsel threw documents at the Plaintiff and the Defendant, Humecka, was giving the Plaintiff “the middle finger” at some point during the discovery. I do not have the discovery transcript to establish either of these complaints or any of the other complaints that were made about discovery. As a result, I cannot accept that these complaints justify a reduction in the costs that would otherwise be payable to the Defendants.
[15] Second, the Plaintiff alleges that the Defendants made him produce thousands of pages of documentation. Having reviewed the document book that was produced for trial, much of the documentation that was produced was produced by the Plaintiff to advance his case. As a result, I do not accept the Plaintiff’s argument that the production requests justify any reduction in the Defendants’ costs. Indeed, the Plaintiff’s production undoubtedly made this case more complex which is a factor that supports an enhanced award of costs to the Defendant.
[16] This brings me to the Plaintiff’s conduct in this case. The Defendants argue that the Plaintiff’s conduct is reprehensible and deserves sanction in two respects. First, the conduct of the Plaintiff unnecessarily lengthened both the pre-trial proceedings and the trial. Second, the Plaintiff made scurrilous allegations against the Defendants’ lawyers, the Peel Police and the Defendants themselves.
[17] I do not have a complete record of all the scurrilous allegations that the Plaintiff allegedly made. However, I accept that the Plaintiff did engage in significant conduct that needlessly extended this action. This conduct included attempting to subpoena both current and former counsel for the Defendants as well as attempting to subpoena employees of the Peel Police who had no knowledge about this case.
[18] In addition, the Plaintiff has made allegations against the Defendants’ counsel about his conduct as well as seeking to call him as a witness at trial. I saw nothing in the record that would have justified those allegations, and they needlessly extended this action. This is also a factor that supports an award of substantial indemnity costs.
The Reasonableness of the Amounts Sought by the Defendants
[19] I start with the Defendants’ disbursements. There is nothing in those disbursements that appears to be at all unreasonable. As a result, the Defendants should recover their disbursements and the HST on them. I have already noted the calculation error that exists in the Defendants’ written submissions.
[20] This brings me to the costs that are sought by the Defendants. I am of the view that these costs are also reasonable. As an example, the trial time that Mr. Boissoneau-Lehner spent was 84 hours. This was an eight-day trial and many of the days were full days. In addition, there would have been preparation time for each day of trial.
[21] The only exception to the costs sought by the Defendants are the costs for the motion on February 26th, 2000. Fifty hours for a motion, even one that is that complex, seems to be high. As a result, I am of the view that a modest reduction in the time spent on this motion is appropriate.
Should Costs Be Reduced Because Mr. Bobel is Self-Represented
[22] No.
[23] The Plaintiff argues that he should not be required to pay the Defendants’ costs because self-represented litigants are only entitled to be compensated at a scale of $100 to $200 per hour. I reject this argument because the mere fact that the Plaintiff decided to proceed without counsel should not affect the Defendants’ rights to be represented by counsel and to recover compensation for their counsel because they were successful.
[24] This brings me to the Plaintiff’s assertion that he has suffered enough financially and should not be required to pay additional costs. In support of this position, the Plaintiff cites Gohm v. Larry York, Corey MacDougall, Lisa Frew 2014 ONSC 4459. In that case, Gunsolus J. found that it is appropriate for the Court to consider a reduction in the costs to take account of the financial circumstances of a party. I accept that statement of the law.
[25] However, in this case there is no evidence that the Plaintiff cannot pay the costs that the Defendants are seeking from him. He has both an engineering degree and an MBA and has, as demonstrated at trial, a significant earning capacity. He also owns his own property. As a result, although I can take into account the Plaintiff’s financial circumstances, I see no reason either why I would do so or how those circumstances would justify a reduction in costs in this case.
Conclusion and Costs
[26] For the foregoing reasons, I am of the view that it is appropriate to assess costs in the sum of $75,000.00 inclusive of HST and disbursements. This amount is to be paid by the Plaintiff to the Defendants. This amount is just above the partial indemnity amount that the Defendants are claiming. I note that the difference between the partial indemnity and substantial indemnity rates of Defendants’ counsel are quite minimal in any event.
[27] This amount reflects a small reduction to address the costs of the motion in February of 2000, while also accounting for the fact that the Plaintiff’s conduct unnecessarily lengthened this trial.
[28] Therefore, I am ordering as follows:
The Plaintiff shall pay the Defendants’ costs in the sum of $75,000.00 inclusive of HST and disbursements within thirty (30) days of today’s date.
The Plaintiff’s approval as to form and content of the Order flowing from these reasons is dispensed with.
LEMAY J
Released: April 21, 2021
COURT FILE NO.: CV-17-4031-00 DATE: 2021-04-21
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Przemyslaw Bobel Plaintiff
- and -
Edyta Maria Humecka and Raymond Alexander Patten Defendants
DECISION ON COSTS
LEMAY J
Released: April 21, 2021