Court File and Parties

COURT FILE NO.: 01-2225/16ES DATE: 20220322

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: RITA ANGELA HARISON, Applicant AND: RITA LISA PIPITO and tirrell michael gordon, Respondents

BEFORE: S.F. Dunphy J.

COUNSEL: Rita Harrison, self-represented Applicant Sheldon Tenenbaum, for the Respondents

HEARD at Toronto: in-writing

REASONS FOR DECISION - COSTS

[1] I issued my judgment in this Estates matter on December 23, 2021, following a three day trial that ended on December 8, 2021. In my judgment, I dismissed the applicant’s claim and awarded the respondents their costs. The parties were directed by me to file their outlines of costs after the close of the trial (i.e. prior to the release of my decision on the merits). My judgment awarding the successful party its costs provided a timetable for the filing of submissions by both parties.

[2] Unfortunately, my directions were not followed very precisely by either side.

[3] The successful respondent filed a document entitled “Costs Submissions” on December 15, 2021, as I directed. Unfortunately, this document was more in the nature of a document dump than an actual outline of costs – fifty-two un-indexed pages of receipts, invoices, two offers to settle and various other documents. A one page submission filed contained little more in the way of helpful information beyond noting the existence of an offer to settle as the basis for a claim for substantial indemnity costs. In short, the successful respondent simply dumped the proverbial shoe box on my virtual desk and asked the me to figure it out.

[4] Ms. Harrison managed to do still less. She ignored my deadline for uploading her own outline of costs and she ignored my deadline for filing her submissions as to costs. This past week she filed an outline of costs consisting of some invoices that she had in hand from professionals who had provided her with partial assistance along the way in prosecuting a case that she otherwise handled on her own as a self-represented litigant.

[5] Three basic observations guide my approach to fixing costs in this case.

[6] First, I have rarely seen a litigant as clearly driven by spite, venom and antipathy to the opposing party as I observed in the case of Ms. Harrison. Her animus against her niece – the principal respondent in this case – was palpable and clearly influenced almost every phase of the litigation including the decision to launch it. The vicious but entirely unproved personal attacks made by her on her opponents deserve sanction.

[7] Second, it is fair to observe that costs of a represented party responding to a self-represented litigant are generally going to be somewhat higher due to the inherent difficulties of efficiently prosecuting litigation with a party who has no familiarity with the process, Ms. Harrison’s conduct of this litigation tended to place it on the outer edge of that continuum. Significantly more legal time and money was required to respond to this case by the respondents by reason of Ms. Harrison’s conduct throughout which lacked focus and coherence. Ms. Harrison’s claim pumped forth a vast quantity of smoke but at its core contained very little substance and suffered from very considerable defects that are highlighted in my reasons for judgment.

[8] Last, the respondents made two offers to settle, both of which would have resolved this case on better terms for Ms. Harrison and at substantial savings to both in terms of time and aggravation.

[9] The first of these – dated July 29, 2016 – offered Ms. Harrison only a nominal sum of money ($100) and a waiver of costs claims. The nominal amount offered does preclude such an offer being taken into account in assessing costs (scale and amount) at the end of the case, but it does not carry more weight than the nominal amount offered suggests it ought. It is a factor, but by itself would not likely move an assessing judge to go beyond the partial indemnity costs to which the successful party would presumptively be entitled in the usual course. The offer did come early in the process and is entitled to some consideration on that score.

[10] The second offer was on its face a more substantive one. It was dated May 15, 2019 and offered Mr. Harrison a substantial sum of money ($30,000) in return for a consent dismissal without costs. On the other hand, the amount was “payable” in the form of an interest-free mortgage to be registered against the subject home to be paid only on sale or refinancing of the property. Given the ages of the two owners of the home relative to Ms. Harrison, the time for payment could well be considered as the 10th of never. On the other hand, Ms. Harrison’s claim was quite incoherent on its face and the costs she was facing from having pursued it as long as she did were not insignificant. This was a meaningful offer taking into account the very limited means of the offerors who were bearing the costs of litigation that they did not instigate but were obliged to defend despite their own limited means.

[11] I don’t consider either offer as amounting to a clear case entitling the offeror respondents to substantive indemnity costs for that reason alone. They are both factors to be taken into account but receive only a comparatively small amount of weight. The respondents’ case is not aided by the failure to provide a meaningful breakdown of costs prior to and post the relevant offer date.

[12] In my view, the two settlement offers assessed in the context of the first two factors mentioned above do persuade me that substantial indemnity costs ought appropriately to be awarded here and I so find. The respondents claimed $66,081.28 in substantial indemnity costs including disbursements and HST. By reason of the “document dump” nature of the back-up for this sum provided, I cannot reasonably verify the fairness or accuracy of the claimed sum. I am rounding the claim down to $60,000 all inclusive which figure is, in my view, a fair and reasonable estimate of substantial indemnity costs for defending this claim.

[13] Judgment shall issue discharging the CPL, dismissing the application and awarding the respondents their costs fixed at $60,000.

S.F. Dunphy J.

Date: March 22, 2022