COURT FILE NO.: CV-19-80192 (Ottawa)

DATE: 20211112

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: National Bank of Canada, Plaintiff/Defendant by Counterclaim

AND:

Marcel Guibord, Defendant/Plaintiff by Counterclaim

BEFORE: Mr. Justice Graeme Mew

COUNSEL: Justin Papazian, for National Bank of Canada

Marcel Guibord, litigant in person

HEARD: In Writing

ENDORSEMENT on costs

[1] National Bank was wholly successful in its motion for summary judgment to obtain possession of the defendant’s property located at 3213 Old Highway 17, Rockland, Ontario. The Bank also obtained a summary dismissal of Mr. Guibord’s counterclaim. However, the Bank’s claim for a vexatious litigant order against Mr. Guibord was denied. See my endorsement reported at 2021 ONSC 6549.

[2] I was presumptively of the view that the plaintiff is entitled to its costs of the motion and of the action and invited submissions on costs if the parties were unable to agree them. They were not able to agree and I have, accordingly, now received and reviewed their submissions.

[3] The Bank seeks costs on a full indemnity basis, relying on the standard charge terms of its mortgage agreements with the defendant. Aside and apart from its contractual right to full indemnity costs, the Bank argues that the application of the factors listed in Rule 57.01 strongly favours the conclusion that the circumstances of this case warrant an award of substantial indemnity costs. In particular, the history of this litigation includes numerous frivolous and unnecessary motions and appeals, to which the Bank was forced to respond, at a great expense.

[4] Other jurists have commented on Mr. Guibord’s conduct of litigation. They include Harvison-Young J.A. (in unreported reasons for decision dated 6 August 2020, CA docket M51674 (C68496)), who found Mr. Guibord to have “behaved unreasonably”, as well as a full panel of the Court of Appeal (reported at 2020 ONCA 677, at para. 5), which found an appeal by him to be “frivolous because it is completely devoid of merit” and awarded costs of $5,000 against him. Roger J. declined to award Mr. Guibord any costs of a motion in which the plaintiff unsuccessfully attempted to strike out his statement of defence and counterclaim, commenting, in reasons reported at 2021 ONSC 1162, para. 5, that:

The conduct of the defendant unnecessarily lengthened the motion. Notably, the defendant filed countless materials for the motion, none of which were helpful to the Court (except for the Statement of Defence and Counterclaim). As well, the defendant unsuccessfully and unnecessarily repeatedly appealed the procedural order of Justice Gomery, which simply provided how the motion was to proceed. Moreover, the defendant’s costs submissions are similarly unhelpful to the Court’s determination of costs.

[5] While the costs of these other interlocutory proceedings do not form part of the costs of the action now claimed by the Bank, it is argued that the earlier judicial pronouncements support an enhanced award of costs because of Mr. Guibord’s conduct. In short, the Bank says that he has not learned anything from these previous costs decisions and that an enhanced award is appropriate.

[6] The costs summary provided by the plaintiff details fees on a full indemnity basis totalling $88,182.50. A partial indemnity figure of $52,909.50 representing 60% of the fees actually incurred is included in the costs summary, as is a substantial indemnity amount of $79,306.00, which is a little under 1.5 times the partial indemnity amount. The base rates used for counsel were appropriate to their seniority and experience and although the hours engaged were unusually high for a case of this type, I am satisfied that the time claimed for accurately reflects time necessarily spent conducting this litigation.

[7] For his part, Mr. Guibord repeats many of his submissions on the substantive motion, agreeing that the matter should have been straightforward, and would have been if the Bank had acted “honourably”. He strongly challenges the number of hours spent which he describes as “unacceptable in [their] entirety”. He says he has been “pushed relentlessly to the wall by circumstances and by the National Bank doing my best to find a way to survive with my integrity, my self-esteem and my self-confidence intact”.

[8] The manner in which the Mr. Guibord has conducted this litigation has, undoubtedly, exacerbated the complexity, and hence the time and resources devoted to the case. In particular, his misguided and misplaced attempts to use this case as a vehicle to raise what I acknowledged in my decision on the motion to be many serious issues of indigenous title that exist and the enduring effects of colonialism, have driven the costs up substantially.

[9] As Orkin on the Law of Costs, 2nd ed., loose-leaf (Aurora, Ont.: Canada Law Book, 2020) reminds us (at 201) awarding costs is an exercise in balancing two principles:

The Canadian practice in awarding costs has been characterized as an attempt to balance two conflicting principles: one, that a successful party to litigation who is free of blame should not be required to bear the costs of either prosecuting or defending the action, and two, that citizens will be unduly hesitant to assert or defend their rights in court if an unsuccessful party is required to bear all the costs of a successful one. Costs are an appropriate deterrent to advancing questionable claims, or for dealing with the unreasonable conduct of a case, it has been said, but should never reach a level where they bar access to the courts.

[10] In particular, it is well-recognised that modern costs awards may encourage settlement, prevent (or at least discourage) frivolous or vexatious litigation, or sanction behaviour that increases the expense of litigation: Chandra v. CBC, 2015 ONSC 6519, at para. 17.

[11] I have concluded that a balanced approach is called for in this rather unusual case. One that recognises that the plaintiff has incurred expenses that it should not have had to, and that the defendant must bear some responsibility for that. But an approach that is also proportionate, respectful of the principle of access to justice, and mindful of the possibility that Mr. Guibord’s resources are limited.

[12] Costs will therefore be fixed in the amount of $25,000, inclusive of disbursements and applicable taxes.

Mew J.

Date: 12 November 2021