Court File and Parties

COURT FILE NO.: CV-19-00615322-0000 DATE: 2021-11-19 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DIK LEE AND: MAGNA INTERNATIONAL INC., COSMA INTERNATIONAL INC., VENEST INDUSTRIES INC., MIKE ROOKE, GINA AIELLO, JOEL MINOR, JOEL WILLICK and STEVEN THUSUSKA

BEFORE: VERMETTE J.

COUNSEL: Dik Lee, self-represented Laura Freitag, for the Defendants

HEARD: In writing.

COSTS ENDORSEMENT

[1] On October 13, 2021, I released an endorsement dismissing the Plaintiff’s request for recusal. The parties were not able to agree on costs and have delivered costs submissions.

Positions of the parties

[2] The Defendants seek costs on a partial indemnity basis in the amount of $4,000.00, which represents a significant reduction of the actual amount of partial indemnity costs reflected in the Defendants’ costs outline ($7,274.09). The Defendants submit that the Plaintiff’s conduct leading up to the motion appeared “to be aimed at stymieing the case management process and delaying this proceeding”. They also express the view that the Plaintiff’s motion was frivolous and vexatious and that his conduct with respect to the scheduling of the motion further added to the length of the process. The Defendants state that they made a reasonable attempt to avoid the need for the motion by serving a Rule 49 offer to settle the day before the hearing of the motion. The offer to settle provided that if the Plaintiff consented to the dismissal of his motion, the Defendants would not seek any costs against the Plaintiff. The Plaintiff did not accept the Rule 49 offer.

[3] The Plaintiff argues that he did not bring a motion and did not file a Notice of Motion. He further argues that he was “forced into the motion” by my order dated September 9, 2021, he objected to the motion being heard on October 6, 2021, and he had no other choice but to file motion materials and appear at the motion. He submits that the Defendants were not successful on the motion as he did not bring a motion and that, in any event, the Court has the discretion to award costs against the Defendants in an appropriate case. The Plaintiff seeks costs in the amount of $1,131.28, comprised of $243.02 for disbursements and $888.26 for “fees”. He states in his costs outline that he spent in excess of 37.75 hours with respect to the motion, and his claim for fees is based on a multiplication of this number of hours by his hourly rate of pay when he was working for one of the Defendants. The Plaintiff asserts, without any supporting evidence, that he “is impecunious to afford any costs of any proceedings whether the costs are ordered or incurred.”

Discussion

a. Entitlement to costs

[4] I reject the Plaintiff’s position that he cannot be ordered to pay costs as he did not file a Notice of Motion. On September 9, 2021, approximately two months after the Plaintiff first made allegations of bias against me and requested that I be removed as case management judge, I ordered that the Plaintiff’s recusal motion proceed on October 6, 2021. I made this order after the Plaintiff repeatedly failed to abide by my directions and to respond to simple requests about his availability and the time needed to argue his motion. My September 9, 2021 endorsement indicated that the Plaintiff’s allegations of bias needed to be addressed in a timely manner and before I could take further steps in this case as case management judge.

[5] While the Plaintiff refused to file a Notice of Motion, he prepared a Motion Record containing two affidavits and a Factum, and he made oral submissions at the hearing of the motion. At no time did he indicate that he wished to withdraw his allegations of bias or his request that I recuse myself.[^1] To the contrary, his list of allegations against me got longer as the motion date approached.

[6] In these circumstances, the Plaintiff cannot argue that this motion was not his motion. The motion was required as a result of his allegations which he maintained all along and repeated both in his motion materials and at the hearing of the motion.

[7] The Defendants had to respond to the Plaintiff’s request/motion for recusal and his attempt to derail the case management process. They are entitled to their costs of the motion.

[8] While I decline to award costs to the Plaintiff, I note that the Plaintiff’s costs outline does not comply with the rules applicable to self-represented litigants when they seek an award of costs. In particular, the Plaintiff has not adduced any evidence that, in responding to this motion, he incurred an “opportunity cost” because some remunerative activity was forgone: see Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228 at paras. 27, 33.

b. Quantum of costs

[9] As stated above, the Plaintiff alleges impecuniosity. However, there is no evidence supporting his allegation. Even if there was evidence of impecuniosity in this case, I would decline to reduce the quantum of costs awarded on this basis. Impecuniosity, if established, is a factor that may be considered in the court’s exercise of its discretion in determining costs. However, the court should only do so cautiously. A party without means cannot expect to be immune from a cost order. Courts have recognized the importance of avoiding a situation in which litigants without means can ignore the rules of the court with impunity. See Agius v. Home Depot, 2011 ONSC 5272 at paras. 13-18 and Francis v. Leo A. Seydel Limited o/a Canadian Tire Associate Store #126, 2021 ONSC 6874 at para. 32.

[10] Here, the Plaintiff’s actions resulted in delay, increased costs to the Defendants and a waste of judicial resources. The Plaintiff cannot conduct himself in this manner and then expect the court to reduce the Defendants’ entitlement to costs because of impecuniosity. Thus, I do not take into account the Plaintiff’s alleged impecuniosity in assessing the Defendants’ costs. See Francis v. Leo A. Seydel Limited o/a Canadian Tire Associate Store #126, 2021 ONSC 6874 at para. 32.

[11] The Plaintiff did not make any submissions with respect to the quantum of costs sought by the Defendants. In light of the circumstances of this motion, the work done and the fact that the amount sought represents a discount on the time spent and the actual amount of partial indemnity costs incurred by the Defendants, I find the amount sought by the Defendants to be reasonable. In my view, this is an amount that the Plaintiff should reasonably have expected to pay in the event that he was unsuccessful on the motion, especially given the number of communications sent by the Plaintiff to the Defendants and the court in the period leading up to the hearing of the motion, as outlined in my endorsement dated October 13, 2021.

Conclusion

[12] Taking the foregoing into account, as well as the factors set out in Rule 57.01(1) of the Rules of Civil Procedure, I find that the fair and reasonable award of costs in favour of the Defendants for the motion is in the all-inclusive amount of $4,000.00.

[13] Accordingly, I order that the Plaintiff pay to the Defendants their costs of the motion in the all-inclusive amount of $4,000.00 within 30 days.

Vermette J.

Date: November 19, 2021

[^1]: The Defendants’ Rule 49 offer to settle does not have an impact on my analysis regarding entitlement and quantum. Given that it was sent to a self-represented litigant at 3:58 p.m. the day before the hearing of the motion, it cannot be given a lot of weight, in my view. Further, the Defendants are not seeking costs on a substantial indemnity basis. However, I note that the Rule 49 offer was another opportunity for the Plaintiff to withdraw his allegations and request for recusal and he did not do so.