Court File and Parties

COURT FILE NO.: CV-21-00659943-0000

DATE: 2022-07-13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ALEXANDER SHAULOV

AND:

LAW SOCIETY OF ONTARIO, PERFORMANCE ASSESSMENT GROUP INC., JOHN BRAHAM and MICHAEL WILLIAMS

BEFORE: VERMETTE J.

COUNSEL: Alexander Shaulov, self-represented Nader Hasan and Karen Bernofsky, for the Defendants

HEARD: In writing.

ENDORSEMENT

[1] On May 6, 2022, I released an endorsement granting the Defendants' motion to strike in part (2022 ONSC 2732).

[2] The parties were not able to agree on costs and have delivered costs submissions.

Positions of the parties

a. Position of the Defendants

[3] The Defendants submit that they are entitled to costs as they were substantially successful on the motion. Although the Defendants' total partial indemnity costs of the motion exceed $22,000, they are only seeking a portion of their costs of the motion in the amount of $12,500, i.e. approximately 56% of their total partial indemnity costs. According to the Defendants, the discount from their total partial indemnity costs is intended to reflect the facts that the Court held that both parties relied on inadmissible evidence, that the Plaintiff was partly successful on a single issue, and that the Plaintiff is self-represented.

[4] The Defendants' position is that the quantum of costs is reasonable in light of the steps taken and the complexity of the issues. They point to the length and complexity of the Statement of Claim and state that it contained insufficient material facts to support the alleged causes of action. They argue that the Plaintiff's arguments were confusing and difficult to understand and continuously evolved in response to the motion, which required additional time on the part of the Defendants' counsel. They also argue that they were required to prepare a reply factum to address the new issues raised in the Plaintiff's factum about "perceived disability" and the striking of claims based on the Canadian Charter of Rights and Freedoms ("Charter").

b. Position of the Plaintiff

[5] The Plaintiff also seeks a portion of his costs in the amount of $12,500. According to the Plaintiff, his real costs of the motion exceed $95,000. His costs outline reflects that he spent 328 hours working on the Statement of Claim and 215 hours working on the motion to strike. Even though the Plaintiff is not a lawyer, he uses a partial indemnity rate of $175 in his costs outline.

[6] The Plaintiff argues that, overall, he was largely successful on the motion. He points out that he was successful in defeating the main relief sought by the Defendants on this motion, i.e. to strike the entire Statement of Claim without leave to amend. He notes that the Defendants only succeeded in striking certain paragraphs without leave to amend and were unsuccessful in arguing the applicability of section 15(2) of the Charter. The Plaintiff submits that while he was not successful in having the entire motion to strike dismissed, he was successful in obtaining the relief that he sought in the alternative, i.e. leave to amend certain paragraphs of the Statement of Claim "that the court considered to not be concise and precise".

[7] The Plaintiff also argues that "other claims were maintained in full". He states the following in his costs submissions:

The Plaintiff was granted a relief to amend certain paragraphs related to his claim under section 15(1) of the Charter and then proceed to trial. The arguments in the Statement of Claim with respect to illegal exercise of discretionary powers (that is ultra vires to the Law Society Act) by the LSO Defendant were maintained in full and will proceed to trial.

The arguments in the Statement of Claim with respect to the fact that the Examination is not merit-based test and thus unreasonable was also maintained and will proceed to trial. The unlawful delegation of the LSO Defendant to develop the structure, process and scoring method of the Licensing Examination to PAG Defendant was also maintained and will proceed to trial.

[8] In the alternative, the Plaintiff submits that there should be no order as to costs as there was divided success on the motion.

[9] With respect to the issue of quantum, the Plaintiff argues that the costs sought by the Defendants are unreasonable, unjust and grossly exaggerated. He points to the fact that the Defendants had three lawyers working on a Rule 21 motion. The Plaintiff also submits that the Defendants Performance Assessment Group Inc., John Braham and Michael Williams ("Non-LSO Defendants") should not be entitled to any costs order as they "piggybacked on the motion and [their] arguments consisted of only four (4) paragraphs in the Defendants' factum." I note that the Defendants have asked for a global costs award and have not made a separate claim for costs for the Non-LSO Defendants.

Discussion

a. Entitlement to costs

[10] The Defendants were largely successful on the motion and are entitled to costs.

[11] The Defendants were:

a. entirely successful in having all claims against the Non-LSO Defendants struck out;

b. entirely successful in having the following claims struck out without leave to amend: the claims against the Law Society of Ontario ("LSO") under section 7 of the Charter and under both section 15 of the Charter and the Human Rights Code, R.S.O. 1990, c. H. 19 ("Code") with respect to alleged discrimination based on mental/cognitive disability or perceived mental/cognitive disability;

c. partially successful in having the following claims struck out, but with leave to amend: the claims against the LSO under both section 15 of the Charter and the Code with respect to alleged discrimination based on racial, ethnic and cultural background.

[12] While leave to amend was granted in relation to the claims described in (c) above, the motion to strike was necessary with respect to these claims because the Plaintiff failed to plead material facts in support of all the elements of the causes of action and, therefore, the LSO could not adequately defend these claims.

[13] As for the remaining claims, I found that this Court did not have jurisdiction over them. These claims fall within the jurisdiction of the Divisional Court. Thus, it is incorrect for the Plaintiff to state that these claims "will proceed to trial". Whether these claims will ultimately proceed to a hearing before the Divisional Court in the context of an application for judicial review is for the Divisional Court to decide.

[14] It is also incorrect for the Plaintiff to state that he obtained relief on this motion that will allow him to proceed to trial in this Court. The only claims that may proceed in this Court – after the Plaintiff delivers an Amended Statement of Claim – are the Plaintiff's claims as against the LSO under both section 15 of the Charter and the Code with respect to alleged discrimination based on racial, ethnic and cultural background. However, the Plaintiff has not amended his pleading yet, and it is open to the LSO to bring a further motion to strike if, in its view, the Plaintiff's amendments do not disclose a reasonable cause of action under section 15 of the Charter and/or the Code. The LSO may also seek to bring a motion for summary judgment. Thus, the Plaintiff is jumping to conclusions when he states that the claims for which he was granted leave to amend will "proceed to trial".

[15] The Plaintiff failed to plead properly any cause of action. He also failed to comply with Justice Corbett's direction that he "serve and file a Statement of Claim asserting claims properly in the jurisdiction of the Superior Court of Justice". In these circumstances, the Defendants were entirely justified in bringing this motion to strike, and the Plaintiff is not entitled to any costs.

[16] In any event, 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, 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

[17] I find that the amount of costs sought by the Defendants is fair and reasonable. While I agree with the Plaintiff that there was some "overlawyering" on the part of the Defendants for this motion to strike – the costs outline includes the time of three lawyers – I am of the view that the significant discount applied by the Defendants to their total partial indemnity costs (approximately 44%) accounts for this issue. I note that the time of the third lawyer, i.e. the lawyer who did not appear on the motion and appears to have been less involved, only represents approximately 13% of the fees set out in the costs outline (i.e. $2,289.60 not including HST).

[18] I accept the Defendants' submission that more time would have been required on the part of the Defendants' counsel on this motion compared to many other motions to strike given that the Plaintiff's arguments were often confusing and difficult to understand and evolved/shifted in response to the motion. Further, I note that one full day was booked for this motion and numerous legal issues had to be addressed.

[19] While, for the reasons stated above, the Plaintiff's costs outline could not be relied upon to grant costs to the Plaintiff, I find that the amount sought in his costs outline is a relevant factor when considering what he would have reasonably expected to pay in the event that he was unsuccessful on the motion. Given that the Plaintiff was also seeking costs in the amount of $12,500 and his costs outline reflects costs on a partial indemnity basis of approximately $95,000, I conclude that the amount of costs sought by the Defendants is consistent with the expectations of the parties.

Conclusion

[20] Taking the foregoing into account, as well as 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 costs in favour of the Defendants is on a partial indemnity in the all-inclusive amount of $12,500.00. The costs are to be paid by the Plaintiff to the Defendants within 30 days.

Vermette J.

Date: July 13, 2022