Court File and Parties

COURT FILE NO.: CV-14-518093

DATE: 20211101

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DIANA MICHELLE DANIELLA HORDO

AND:

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

BEFORE: VERMETTE J.

COUNSEL: Robert Besunder, former lawyer for the Plaintiff

Diana Michelle Daniella Hordo, Plaintiff, self-represented

HEARD: In writing

ENDORSEMENT AS TO COSTS

[1] On September 17, 2021, I released an endorsement granting Robert Besunder’s motion to be removed as lawyer of record for the Plaintiff, Diana Michelle Daniella Hordo. The parties were not able to agree on costs and have delivered costs submissions.

Positions of the parties

[2] Mr. Besunder seeks costs on a substantial indemnity basis in the amount of $8,353.17, inclusive of HST and disbursements. He submits that this motion, which caused delay in the proceeding, should not have been necessary but was required as a result of the Plaintiff’s conduct. He points out that the Court’s directions with respect to the motion were not respected by the Plaintiff, and that further costs had to be unnecessarily incurred as a result of the voluminous and irrelevant materials that she filed. Mr. Besunder also submits that the Plaintiff’s motion materials contained unsubstantiated and scandalous allegations in support of which no evidence was put forward.

[3] The Plaintiff submits that costs should be awarded to her. She filed a costs outline seeking $57,754.42. However, her costs outline does not include any information as to how this amount was arrived at, such as the number of hours spent. In her costs submissions, the Plaintiff attempts to reargue points that she raised on the motion. She also raises new issues, like the allegation that Mr. Besunder has delivered incomplete documents to her following my order. The Plaintiff alleges that Mr. Besunder is acting in bad faith and has been doing so for a long time.

Discussion

[4] The only issue before me is the issue of the costs of Mr. Besunder’s motion. As stated in my Endorsement dated September 17, 2021, if Ms. Hordo has complaints against Mr. Besunder, she is free to pursue remedies against him in other proceedings that she may be advised to bring. It is inappropriate to raise new allegations in the very narrow context of costs submissions.

a. Entitlement to costs

[5] Mr. Besunder was successful on his motion and is entitled to his costs. There are no factors in this case that militate against the general principle that costs should follow the event. Quite the contrary. The Plaintiff was aware that there could be costs consequences should she be unsuccessful on the motion. In my endorsement dated July 29, 2021, I indicated that the Plaintiff “could be ordered to pay costs on the motion in the event her response to Mr. Besunder’s motion raises irrelevant grounds and simply confirms that there has been a breakdown in the lawyer-client relationship making the removal of Mr. Besunder necessary.” This is exactly what happened.

b. Scale of costs

[6] Substantial indemnity costs are only warranted in rare and exceptional cases where a party has engaged in behaviour worthy of sanction, such as where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties: Davies v. Clarington (Municipality), 2009 ONCA 722 at paras. 28-33.

[7] In my view, this is a case where substantial indemnity costs are warranted. As set out in more detail in my Endorsement dated September 17, 2021, the Plaintiff ignored and failed to comply with my order dated July 29, 2021 that her responding materials were to be strictly limited to a response to Mr. Besunder’s motion to be removed as lawyer of record and could not seek any unrelated relief. The Plaintiff filed voluminous and improper responding materials that were largely irrelevant to the issues raised on the motion and asked for numerous orders in her favour. Further, the Plaintiff’s materials contained numerous disparaging and vexatious statements and serious allegations against Mr. Besunder and others, including allegations of criminal conduct and professional misconduct that were unsubstantiated.

[8] Among other things, I rely on the following statement of the Court of Appeal in Unisys Canada Inc. v. York Three Associates Inc., 2001 CanLII 7276 at para. 15 (Ont. C.A.):

On the issue of costs we agree with the respondent that the appellant’s conduct in making unsubstantiated allegations of fraud, misconduct, or dishonesty, (or other conduct analogous to the foregoing), is sufficiently reprehensible to warrant awarding solicitor-and-client costs in favour of the aggrieved party [citations omitted]. Conduct of this nature is particularly blameworthy when aimed at the integrity of a lawyer [citation omitted].

[9] In addition, in reference to Rule 57.01 of the Rules of Civil Procedure, I find that the Plaintiff’s conduct has unnecessarily lengthened the proceeding (Rule 57.01(1)(e)) and that her response to the motion was improper, vexatious and unnecessary (Rule 57.01(1)(f)).

c. Quantum

[10] The Plaintiff did not make any submissions with respect to the quantum of costs sought by Mr. Besunder.

[11] The Plaintiff’s costs outline does not comply with the rules applicable to self-represented litigants when they seek an award of costs. Among other things, the Plaintiff has not adduced any evidence that, in responding to this motion, she incurred an “opportunity cost” because some remunerative activity was forgone: see Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228 at paras. 27, 35. While the Plaintiff’s costs outline could not be relied upon to grant costs to the Plaintiff, I find that the amount sought in her costs outline is a relevant factor when considering what she would have reasonably expected to pay in the event that she was unsuccessful on the motion.

[12] In light of the circumstances of this motion, I find the amount sought by Mr. Besunder and the time spent set out in his costs outline to be reasonable. However, I do not think that it is appropriate to include costs related to the case conference before Justice Pinto on September 14, 2020, which took place more than six months before the motion was brought. Accordingly, I will apply a small deduction to the amount sought by Mr. Besunder.

Conclusion

[13] Taking the foregoing into account, and in light of Mr. Besunder’s costs outline, the factors set out in Rule 57.01(1) of the Rules of Civil Procedure and the reasonable expectations of the parties, I find that the fair and reasonable award of substantial indemnity costs in favour of Mr. Besunder is in the all-inclusive amount of $7,750.00. The costs are to be paid by the Plaintiff within 30 days.

Vermette J.

Date: November 1, 2021