Mitchell v. Provan, 2021 ONSC 3293

COURT FILE NO.: CV-19-1124-00

DATE: 2021 05 03

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

RICHARD STEVE MITCHELL, aka REV. RICHARD STEVE MITCHELL, DR. RICHARD S. MITCHEL, RICHARD MITCHELL, AND STEVE MITCHELL

Richard Steve Mitchell, the Plaintiff, on his own behalf

Plaintiff

• and -

DR. DAVID CALDWELL PROVAN (CPSO #89125 Family Medicine Emergency Medicine) and THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Pino J Cianfarani and Alec Yarascavitch, for the Defendant. Dr. David Caldwell

Monica Tessier, for the Defendant, The College of Physicians and Surgeons of Ontario

Defendant

HEARD: in writing

REASONS FOR DECISION ON COSTS

P.A. DALEY J.

1The defendants moved to strike the plaintiff's statement of claim and they were successful for the reasons set out in my decision in Mitchell v. Provan, 2021 ONSC 1985.

2Having been successful on their motions, the defendants are presumptively entitled to the payment of reasonable costs by the plaintiff.

3The parties were ordered to file submissions as to costs, with the plaintiff’s submissions to follow those filed by the defendants, however he chose to file his submissions in advance of the defendants' submissions and as a result he has not addressed the positions advanced by the defendants. In his submissions the plaintiff outlines a critique of my reasons for decision and re-argues the issues raised by him in his oral submissions on the motion. The time for the delivery of the plaintiff's cost submissions has now passed and so I will consider the defendants cost submissions standing on their own.

4Both the defendants, David Caldwell Provan and The College of Physicians and Surgeons of Ontario, seek their costs payable on a substantial indemnity basis in the amounts of $24,215.38 and $20,052.28, respectively.

5Although the defendants urged that they are entitled to costs of the action and on their motion on a substantial indemnity basis, they have not identified any conduct on the part of the plaintiff that would property ground a costs award at that punitive level.

6Rule 57.01 of the Rules of Civil Procedure sets out the factors to be considered in determining the appropriate level and amount of costs payable.

7Fortunately, as the outcome of the plaintiff's action was determined at an early stage in the proceeding, the parties have not incurred significant costs.

8In the Ontario Court of Appeal decision of Pinder Estate v. Farmers Mutual Insurance Company (Lindsey), 2020 ONCA 413, van Rensburg JA addressed the considerations to be examined when the court is asked to award substantial indemnity costs, as opposed to the standard award of costs on a partial indemnity basis.

9At para. 146 the court states that an award of substantial indemnity costs is exceptional and should only be ordered where the court deems the party's conduct was reprehensible, scandalous, or outrageous: Clarington (Municipality) v. Blue Circle Canada Inc., 2009 ONCA 722, 100 O.R. (3d) 66, at para. 29.

10The fact that proceedings have little merit is no basis for awarding costs on an elevated scale: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 SCR 3, at p. 134.

11It has also been held that substantial costs is an elevated scale of cost normally resorted to when the court wishes to express its disapproval of the conduct of a party to the litigation: Net Contact Installation Inc. v. Mobile Zone Inc., 2017 ONCA 766, 140 OR (3d) 77, at para. 8.

12While the plaintiff has made serious assertions as to the conduct of both defendants, which were not actionable, the plaintiff's conduct did not rise to a level that would warrant sanctioning by an award of substantial indemnity costs.

13The unfounded allegations against the defendants impugned their integrity, however, on the whole of the pleading, and based on the submissions of the plaintiff, I have concluded that his prosecution of the action, while very ill-conceived from the outset, in part resulted from the fact that the plaintiff was self-represented and unfamiliar with the applicable law.

14That is not to say that self-represented parties, who are unfamiliar with the law and who institute groundless and untenable actions will always avoid an award of substantial indemnity costs.

15As noted by van Rensburg JA in Pinder at para. 149, while there are cases where substantial indemnity costs have been awarded where a plaintiff made "empty" or "unsubstantiated" bad faith claims, typically there is specific conduct on the part of the unsuccessful party that extends beyond simply challenging the conduct of the party opposite.

16Apart from asserting ill-conceived, untenable, and groundless claims against the defendants, I can find no other conduct on the part of the plaintiff that would be deserving of sanctions by an award of substantial indemnity costs.

17Thus, I have concluded that the defendants are entitled to the payment of reasonable partial indemnity costs.

18As to the costs sought by the defendants, in the absence of any submissions from the plaintiff as to the quantum of the costs claimed, I am left to examine whether the partial indemnity costs claimed in the alternative by the defendants are fair, reasonable, proportionate and in keeping with costs that the plaintiff would reasonably have expected to pay if unsuccessful in his action and on this motion.

19Having considered all the submissions filed and the detail costs outlines I am satisfied that all the listed criteria have been met and as such I award the partial indemnity costs as claimed by the defendants.

20An order shall therefore issue requiring the plaintiff to pay to the defendants their partial indemnity costs as follows: (a) to the defendant David Caldwell Provan – $16,403.58; (b) to the defendant The College of Physicians and Surgeons of Ontario – $13,624.16.

21An order shall issue accordingly and approval of the order as to form and content is hereby dispensed with.

Daley, J.