KINGSTON COURT FILE NO.: 112/97

DATE: 2021-10-21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Joanne Percy, Applicant

AND

John William Thorne Shaver, Respondent

BEFORE: Madam Justice Deborah Swartz

COUNSEL: James Splane, Counsel for the Applicant Mark LaFrance, Counsel for the Respondent

HEARD: In Chambers (Written Submissions)

COSTS ENDORSEMENT

[1] This is the decision on costs following the dismissal of the Application in this matter.

[2] The Respondent commenced a Summary Judgment Motion (SJM) by notice of motion dated March 25, 2021. At the first return date on April 14, 2021 the Applicant appeared unrepresented and requested more time to get a new lawyer and prepare responding materials. The matter was adjourned to May 12, 2021 peremptory on her to find counsel and for the setting of a date for argument and submissions. The Respondent opposed the adjournment. Costs of this date were reserved to the final hearing.

[3] When the parties appeared on May 12, 2021 the Applicant again asked for an adjournment and appeared without counsel. She advised that she was working on finding a lawyer and was unprepared to set the date for argument of the SJM. No responding materials had been served and filed. The Respondent asked that a date be set and a litigation schedule ordered. The court set the date for the SJM to August 31, 2021 and ordered a litigation schedule that included providing the Applicant with a further 4 weeks to serve and file her responding materials to the SJM. Reply material and facta were also ordered on a timeline. The timeline was reviewed with both parties and counsel. Costs were reserved to the final hearing.

[4] In the meanwhile, in the main proceeding, the Trial Scheduling Court date proceeded on June 30, 2021, at which time the Applicant appeared without counsel once more. That date was adjourned to a date to be fixed once the SJM was heard, if necessary. The Applicant had still not filed any responding materials to the SJM and was past the timelines set out in the litigation schedule at that point. Costs are not referenced in the endorsement on this date.

[5] The parties next appeared at the return of the SJM on August 31, 2021. The Applicant appeared with her new counsel. She had not filed responding materials although she had apparently served some materials on Respondent’s counsel. The court had no responding materials or factum from the Applicant in preparation for the motion. Attempts to file materials were late and well beyond the timelines set out in the court ordered litigation schedule (2.5 months late). The Respondent had no ability or time to serve and file Reply material as a result of the Applicant’s failure to heed the court’s order.

[6] The Rules provide many avenues to remedy omissions or errors in order to access the courts and present your case. Mistakes and oversights happen. The failure to obtain permission from the court to file late – perhaps by way of a 14B motion on consent - is unfortunate and left the Respondent again at court with the Applicant unprepared and incurring further cost. It is noted that 2.5 months to bring a motion for leave to late file is more than adequate time.

[7] This endorsement follows my endorsement of August 31, 2021 which adjourned the hearing of the motion, to provide time for the Applicant to pay the outstanding costs orders, pay the costs of that day and to allow her time to post security for costs and formally respond in a comprehensive manner to the motion for summary judgment should she wish to oppose it. She did none of these things.

[8] The Respondent is asking for partial recovery of $7,500.00 inclusive (out of approximately $13,000.00 in total fees and a portion of fees written off), for fees and expenses not already subject to previous costs orders. At the time of these submissions, the Applicant has not paid the previous costs of $1,900.00 and $1,500.00.

[9] For reasons noted below, costs are payable by the Applicant to the Respondent in the amount of $6,500.00 inclusive.

[10] The Application has been dismissed by operation of the previous endorsement of this court. It is noteworthy that this Application involved numerous and varied claims made against the Respondent that were many decades old, subject to various limitation periods, impediments and some without jurisdiction. In any event, the Applicant did not formally defend the motion seeking to have her Application dismissed.

[11] It was made clear to the Applicant at the last return date, that on the face of the affidavit evidence before the court, the Summary Judgment Motion appeared well grounded and would, if unopposed by persuasive contradictory evidence, be granted. A litigation schedule was set for responding materials which were to follow the payment of the cost and security for costs orders, if counsel could not agree. A procedure for filing of a brief 14B motion with an affidavit confirming payments and any consent litigation schedule for responding and reply material was detailed in the last endorsement as well. An order for costs of $1,500.00 was made against the Applicant for this appearance.

[12] On balance, the Applicant was given more than a fair amount of time and options, to defend the Summary Judgment Motion and bring herself and her Application squarely before the court.

[13] The Applicant now asserts that she should pay no costs. She says that she struggles with finances and health issues. She says that she received bad legal advice earlier in the proceeding and then, when acting on her own behalf, she did an ineffective job of addressing the litigation she had started, because she did not understand the process, was unwell, had an accident and was financially struggling. It is noteworthy that earlier in litigation the Applicant was asked to provide some evidence of her accident/injuries but declined to do so. There is no evidence before the court in this regard.

[14] It is Rule 24 of the Family Law Rules that sets out the structure to be followed in determining costs. The Mattina v. Mattina case of 2018 ONCA 867 explains Rule 24 and sets out the purposes of the cost rules which are:

1. To partially indemnify successful litigants;

2. Encourage settlement; and

3. To discourage and sanction inappropriate behavior by litigants.

[15] There is a fourth fundamental purpose noted by the Court of Appeal in Mattina and that is a reference to Rule 2 (2) of the Rules which notes that cases are to be dealt with justly. Mattina also refers to the factors detailed in Rule 24 that are to be considered and particularly draws attention to the goal of achieving proportionality and reasonableness in any cost award.

[16] The Court of Appeal in the 2005 case of Murray v. Murray (2005 46626 (ON CA), 79 OR (3d) 147) addressed the impact on a party ordered to pay costs. The court notes in that case that in order to determine what is just, fair, reasonable and proportional, the court may consider this impact.

[17] This is what the Applicant is asking the court to do in the case before this court today.

[18] The Applicant had served a financial statement noting, and her costs submissions confirm, that she has approximately $30,000 in annual income. Rather than address her plan for paying the existing costs orders, perhaps on a monthly basis and in accordance with her budgetary constraints, the Applicant notes in her submissions that she “voluntarily elected to not pay the amounts ordered” and asks that the court now relieve her of a further obligation to pay for the costs of the proceeding she started and which has now been dismissed.

[19] The court is unclear how it is that the Applicant believes that she can just “voluntarily elect” to not pay costs orders. Perhaps she is referring to the order giving her further time to pay the previously ordered $1,900 or the $1,500 ordered on August 31, 2021 for that appearance. If that is the case, then that statement appears to demonstrate little more than an attitude of active contempt toward this court.

[20] At best, perhaps she did not understand that there can be serious financial repercussions and obligations that flow alongside a court process. The damage may not be limited to the Applicant but extends to the other litigant and other users of the court system. Especially in this era of Covid-19 when the court system is stretched to its limits, the consideration and assessment of costs is doubly important.

[21] It is completely unacceptable and unreasonable to expect that one can, as has happened in this case:

a) sue someone unreasonably and on tenuous grounds;

b) refuse to hear or ignore the concerns of the court expressed through costs orders, procedural orders and directions;

c) delay matters repeatedly, substantially ignore the Rules and then expect there to be no financial obligations when you decide that you no longer wish to continue with the mess you have created.

[22] At the risk of perhaps framing that too bluntly, it is important in this case and especially at this time in our court system, to emphasize clearly the relevance of the objectives of modern cost rules (as detailed in the Mattina case) and in particular the objective of discouraging and sanctioning bad litigation behavior. The courts simply have no time to waste.

[23] Perhaps the Applicant is referring only to the order to post $1500.00 in security for costs as a precondition to continued participation in court? If that is the case, then the court accepts that submission as her choice to elect to proceed no further with the Application. That does not however relieve her of the previous orders to pay costs or shield her from liability for costs today.

[24] It is also not credible for the Applicant to say that, despite the fact that she has had two lawyers, she did not understand the process.

[25] This is not an access to justice issue but rather an ill-conceived piece of litigation that should not have been commenced and should have ended at least when the $5,000.00 offer to settle was made by the Respondent on September 20, 2019.

[26] This nuisance offer was left open for acceptance by the Applicant until late February 2020 when it was withdrawn. The counter-offer from the Applicant, that followed a short while later, was for $6,000,000.00 (six million) and coupled with a threat to involve the criminal court should the offer be refused. The court does not accept that this reference to a criminal process was a “reminder” to the Respondent.

[27] It is difficult to reconcile the request of the Applicant that the court exercise its discretion in her favour, on these facts. I have not been asked to make a finding of bad faith and will therefore not do so. I have not been asked to make a more fulsome costs order that might more completely recompense the Respondent for the costs he has been put to in this unfortunate case.

[28] As this court has noted in previous cases, it is a tough argument to make that the court should hear and accept the position of a litigant who repeatedly does not hear the orders of that very court.

[29] While the court has considered the submission of the Applicant that a costs order would have too big an impact on her to be reasonable, the court declines to accept that suggestion. In addition, the court does not accept that it is proportional or reasonable to expect the successful Respondent to be denied costs.

[30] There is a presumption in the Rules that a successful party is entitled to costs. The Respondent has done nothing to disentitle himself to costs and the Applicant has an ability to pay a reasonable cost award. It may take her some time to do so and the court will give her time to pay the costs order made today, in an effort to reach a fair, just and proportional result.

[31] The court has looked to all the factors set out in Rule 24. In this case it is most helpful to look to the reasonableness factor when determining costs. The Applicant’s litigation choices and conduct have created, increased and sustained expenses from the moment the litigation was commenced.

[32] The Applicant has not followed the Rules, including on prompt and thorough disclosure and failed to post a modest security for costs order. It was only at this point when directly ordered by the court to front some of the risk and expense of the litigation that she had started, that the process came to an end.

[33] A number of adjournments were granted at her request to allow her to respond and obtain new counsel who might assist in responding fully to the Summary Judgment Motion.

[34] The Applicant has not paid the existing costs orders. There has been no attempt to do so. Yet she hired a second lawyer and continued with the litigation. One wonders how she paid for second counsel and how she expected to continue her case when she was in active breach of costs orders. Given that she has had experience with two counsel in this matter, I find that the Applicant knew or ought to have known the costs and risks of continued litigation.

[35] Unfortunately, the court was not provided with a Bill of Costs on behalf of the Applicant so that a comparison of the expenses and fees paid by each litigant could be made. In any event, I find that the hourly rate and total fees of Respondent’s counsel are reasonable and in line with comparable fees for senior counsel in this region and in this type of case.

[36] On balance and in consideration of all of the above and in the exercise of the discretion afforded this court under the Courts of Justice Act, costs are payable by the Applicant to the Respondent as noted in the amount of $6,500 inclusive. As noted by the Court of Appeal in the 2004 case of Boucher v. Public Accountants Council for the Province of Ontario, the assessment of costs is not to be a mathematical exercise. It is noted in any event that with this cost award, the Applicant will have a total responsibility for costs of just under $10,000.00. I find that this is a fair and reasonable sum in all the circumstances, including the financial means of the Applicant.

[37] The Applicant has 60 days within which to pay this costs order. She is of course free to propose a payment schedule to the Respondent for his consideration but he is not obligated to accept any such proposal.

[38] The Respondent is free to commence available enforcement proceedings on all previous costs orders.

[39] Enforcement proceedings on this costs order shall not be commenced until the 60 days for payment have elapsed.

Date: October 21, 2021 Madam Justice Deborah Swartz