Court File and Parties
COURT FILE NO.: CV-20-2010
DATE: 2021-06-28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: OUSSAMA HAMZA o/a HAMZA LAW, Applicant
AND:
LAW SOCIETY OF ONTARIO, ISMAIL ADERONMU, JESSICA SOUBAS, YEVGENIYA HUGGINS and VINCENT ROCHELEAU, Respondents
BEFORE: Heeney J.
COUNSEL: The Applicant, self-represented
Katherine Hensel, for the Respondent Law Society of Ontario (“LSO”)
Solomon McKenzie and Atrisha Lewis, for the Respondent Ismail Aderonmu
Stephen Moore, for the Respondent Vincent Rocheleau
The Respondent Yevgeniya Huggins, self-represented
The Respondent Jessica Soubas, self-represented
HEARD: March 17, 2021 by videoconference; written reasons released April 28, 2021
ENDORSEMENT (AMENDED)
[1] In my Reasons for Judgment dated April 28, 2021, cited as 2021 ONSC 2023, I dismissed this application, and invited the respondents to make written submissions as to costs within 15 days. The applicant was directed to file his responding submissions within 15 days thereafter, and any reply was due within 10 days thereafter.
[2] The only respondents who filed submissions seeking costs were the respondent LSO and the respondent Ismail Aderonmu, both of whom served and filed their material on May 12, 2021. The applicant did not serve and file any responding submissions, and the time for so doing has now expired. I will, therefore, decide the issue of costs based upon the materials that have been filed.
[3] I will deal with the claim of LSO first, although most of my comments apply to the claim of Mr. Aderonmu as well.
[4] LSO seeks substantial indemnity costs in the amount of $33,000, inclusive of disbursements and HST. For the reasons that follow, I agree with both the quantum claimed and the arguments put forward by LSO in support of that claim.
[5] Rule 57.01(1) sets out a number of factors to be considered by the court in exercising its discretion as to costs, in addition to the result, which was entirely in favour of the respondents. Those factors, and my comments thereon, are as follows:
The amount claimed and the amount recovered in the proceeding: Although the claims made by the applicant continuously evolved, seemingly with each document he filed, he ended up claiming consequential damages of $55,000, a further $100,000 for tuition and expenses, and $60,000 in general damages. The amount sought in costs is proportionate to the monetary claims made, which represent only a small part of the total relief that the applicant was claiming.
The complexity of the proceeding: The proceeding was made unduly complex by the applicant due to the extraordinary volume of materials he filed (amounting to well over 1,000 pages), and because he imbedded those materials with macro restrictions that prevented them from being printed, which hampered the respondents’ ability to respond. It was further complicated by the sheer number of claims made by the applicant, most of which were found to be untenable at law with no chance of success, but which had to be considered by the respondents and responded to.
The importance of the issues: Given my finding that the application was scandalous, frivolous and vexatious, it follows that that the issues were not important and did not merit the considerable judicial resources that were expended in dealing with it, nor the considerable legal resources expended in responding to it.
The conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding: Aside from the elongation of the proceeding that arose from the volume of the materials filed, the applicant also lengthened unnecessarily the duration of the proceeding by repeatedly flouting the Rules of Civil Procedure, including bringing an application when there was no legal authority for doing so; failing to properly serve the respondents; failing to indicate in his Notice of Application the evidentiary material to be relied upon, and instead demanding that the respondents provide their material first, to which he would then respond; failing to comply with filing deadlines prescribed by the Rules; failing to abide by the directions of the court regarding the filing of materials; introducing new claims in his additional materials, without seeking leave to amend; and, filing various versions of certain documents, which included material already in earlier versions along with new material, necessitating counsel to go through every one in order to respond.
Whether any step in the proceeding was improper, vexatious or unnecessary or taken through negligence, mistake or excessive caution: I have already found that the entire application was frivolous, vexatious and an abuse of process. Quite simply, it should never have been brought.
The experience of the party’s lawyer, hourly rates and hours spent: Ms. Hensel bills her time out at $325 per hour, which is appropriate for counsel with 18 years at the bar. Her associate Ms. Thoms bills out at the reasonable rate of $315 per hour, and is a 2009 call, while junior counsel, Kaelan Unrau, bills out at $165 per hour, which is appropriate for a 2019 call. The total number of hours expended on this file are 127.6. While this is more time than would normally be expected to be spent responding to an application, it was, in my view, necessary due to the conduct of the applicant as already outlined.
[6] I previously found that the applicant was attempting to use this proceeding as a forum for his racist, misogynist and bizarre views. In his materials, he repeatedly engaged in personal attacks on the respondents and their counsel. Among other things, he referred to Mr. Aderonmu as an “Uncle Tom” who did not adhere to standards of conduct that the applicant considered appropriate for Muslims. He characterized Ms. Hensel, counsel for LSO, as one of the “white Indians”, “rape-children of colonial empires” and “creatures of colonialism and imperialism” who “feign to champion indigeneity or anti-colonialism” on behalf of the LSO, but whose “historical and present complicity with colonizers, as well as their faces and DNA, give them away”. The applicant branded the respondents, their counsel and judges of European ancestry as being “colonizers”, and therefore inherently “biased”, “racist” and in a “conflict of interest”.
[7] Costs on a substantial indemnity scale can be imposed as an expression of the court’s disapproval as a form of chastisement and as a mark of the court’s disapproval of a litigant’s conduct: Manning v. Herb Epp, 2006 CanLII 35631 (Ont. S.C.J.) at para. 7.
[8] In Lewis v. Lewis, 2019 ONCA 690 at para. 17, the Court of Appeal for Ontario said the following:
It is well established that the extraordinary award of substantial indemnity costs is reserved for exceptional cases, for example, involving egregious misconduct by a party or its counsel, or where the proceedings are clearly vexatious, frivolous, or an abuse of process: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3 at p. 134.
[9] In my view, this is one of those exceptional cases where substantial indemnity costs are warranted. His misconduct was egregious in the extreme. While the applicant is self-represented, he is not a lay litigant. He is a lawyer, and he should have known better. In particular, he knew or should have known that bringing frivolous and vexatious proceedings is likely to attract a substantial order of costs against him.
[10] Furthermore, as a lawyer the applicant is in the unique position of being able to commence a lawsuit without having to retain a lawyer to represent him. He is free to indulge himself in this frivolous litigation at virtually no cost to himself, other than filing fees, while causing the responding parties to expend substantial costs defending themselves. In my view, the applicant has abused his privileged ability to access the court in bringing this proceeding. Since he has incurred no costs of his own in so doing, he is well-positioned to pay the full amount of the costs incurred by the responding parties.
[11] An order will go that the applicant shall pay costs to LSO on a substantial indemnity scale, fixed at $33,000 all inclusive.
[12] As to the costs of the respondent Ismail Aderonmu, he asks for an award of $12,742.86 on a substantial indemnity basis, or alternatively the sum of $10,157.99 on a partial indemnity basis.
[13] Mr. Aderonmu is a first year law student at Ryerson Law School. He was represented on a pro bono basis by McCarthy Tétrault. The law is well settled that pro bono representation is no bar to an award of costs: 1465778 Ontario Inc.; Ontario (Human Rights Commission) v. Brockie (2004), 2004 CanLII 16323 (ON CA), 185 O.A.C. 366 (Ont. C.A.); Reynolds v. Smith, 2007 ONCA 375, 86 O.R. (3d) 43 (Ont. C.A.).
[14] In his written submissions, the respondent Aderonmu makes many of the same points already dealt with, which are unnecessary to repeat. I am in complete agreement with his submission that this application “was more than inadvisable – it represented a bigoted, legally incoherent and pernicious use of the justice system, that incurred a significant waste of judicial resources, and should never have been brought against the Respondents”.
[15] I also agree with his submission that an award of costs on a substantial indemnity basis is in line with the policy goal of using costs to safeguard the integrity of the justice system by sanctioning inappropriate conduct.
[16] I have already referred to the vicious attacks on Mr. Aderonmu’s character made in the applicant’s materials, both above and in my Reasons for Judgment. The applicant has also attacked counsel for Mr. Aderonmu, in his materials and on his website. He refers to counsel Solomon McKenzie as a “British black gay Ashkenazi” who “supports the inquisition of Mr. Hamza and genocide of Muslims in Palestine”, an “anti-Semite”, “anti-African” and “an Islamophobe”.
[17] I am satisfied that an award of substantial indemnity costs to Mr. Aderonmu is appropriate, for the reasons already given. The only question is quantum.
[18] Mr. Aderonmu was represented by both Mr. McKenzie and his co-counsel and colleague at McCarthy Tétrault, Atrisha Lewis. Mr. McKenzie was called in 2020 and Ms. Lewis in 2013, and their substantial indemnity hourly rates are $315 and $400 respectively. While Mr. McKenzie’s rate is somewhat high for a 2020 call, it is not unusual for a major national firm.
[19] Counsel were, however, very efficient with their use of time, and docketed only 33.5 hours on this case. I am satisfied that total costs of $12,742.86 (which includes disbursements of $290.26) represents a fair and reasonable amount for the unsuccessful applicant to pay in costs to Mr. Aderonmu.
[20] Accordingly, an order will go that the applicant shall pay to the respondent Mr. Aderonmu his costs on a substantial indemnity scale, fixed at $12,742.86 all inclusive.
[21] Since the other respondents did not claim costs, there will be no order as to costs with regard to them.
Mr. Justice T. A. Heeney
Date: June 28, 2021