COURT FILE NO.: CV-20-634131 and CV-19-632646
DATE: 20220124
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JUSTICE FOR CHILDREN AND YOUTH, JESSE MARK, MARY BIRDSELL and EMILY CHAN
-and-
ROBERT GLEGG
APPLICATION UNDER s. 140 of the Courts of Justice Act, R.S.O. 1990 c. C.43
RE: HAZEL FLORES and ARMANDO FLORES
-and-
ROBERT GLEGG
APPLICATION UNDER section 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, and rr. 14.05(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended.
BEFORE: S. F. Dunphy J.
COUNSEL: Linda Plumpton and Tosh Weyman for the Applicants JFCY et al.
Adam J. Wygodny, for the Applicants Hazel and Armando Flores
P. James Zibarras, for the Respondent
HEARD: In Writing
Reasons For Decision - costs
[1] On December 29, 2021, I released my reasons for decision in two parallel applications declaring the respondent Mr. Glegg to be a vexatious litigant pursuant to s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43. My original reasons for decision were amended on January 24, 2022 to correct certain clerical errors brought to my attention. In my reasons, I directed the parties to make written submissions as to the scale and quantum of costs. I have now received and reviewed those submissions and this is my decision on costs applicable to both proceedings.
[2] My reasons for decision (Justice for Children and Youth v. Glegg, 2021 ONSC 8515 contains an extensive review of the facts which I shall not repeat here.
Issues to be decided
[3] Having reviewed the written submissions of the parties, there are certain common issues that must be decided before a dollars and cents determination can be made. I summarize these issues as follows:
a. Is my costs award to be limited to the two applications or does it also encompass the two underlying civil claims of Mr. Glegg against both groups of applicants?
b. If so, are there any amounts to be excluded from the calculation of costs?
c. On what scale ought costs be awarded on these two applications and, if applicable, on the underlying actions that were stayed? And
d. What amount of costs is fair and reasonable in the light of my findings on the foregoing matters and any other matters that ought to be considered pursuant to s. 131 of the COJA and Rule 57 of the Rules of Civil Procedure?
Analysis and discussion
(a) Is my costs award to be limited to the two applications or does it also encompass the two underlying civil claims of Mr. Glegg against both groups of applicants?
[4] Mr Glegg takes the position that the two underlying civil claims against the Flores applicants and the JFCY applicants respectively have not been finally dealt with on their merits and that it would thus be inappropriate for me to award costs to any party in relation to those two proceedings. Such proceedings, he submits, are separate and distinct from the two s., 140 COJA applications that were brought before me. This submission rests on an unduly technical reading of the last part of my reasons which Mr. Glegg submits leaves open the prospect of a future application by him for leave to continue the two proceedings notwithstanding my ruling.
[5] The respondents reading of my reasons ignores my explicit finding (at paragraph 98) that an order must go staying the existing proceedings as well as the very explicit oral ruling given by me at the conclusion of the hearing of this matter that both proceedings would be stayed and I was only taking under reserve the question of what other orders might be appropriate pursuant to s. 140 of the COJA. There should be no doubt whatsoever in Mr. Glegg’s mind that my decision is a final decision that both of the underlying civil claims are vexatious and an abuse of process. It is that determination that necessarily underlies my vexatious litigant finding. The idea that a claim found to be vexatious and an abuse of process might nevertheless be granted leave at a future time to proceed is absurd. There was nothing interim about my ruling which is in no way subject to any further hearing or proceeding.
[6] In view of the foregoing, my ruling is a final decision in relation to those two underlying actions. They have been permanently stayed as an abuse of process. They are not waiting on any future step to be taken. It is only fair and reasonable that costs of those two proceedings should be determined at the same time as costs of the s. 140 COJA proceeding that arose as a consequence of each. The whole pith and substance of my ruling was that the ordeal of the applicants is at an end – the interests of justice are not served by strewing the path to their resumption of life free of Mr. Glegg with further needless and technical obstacles.
[7] The dividing line between the application and the civil claim is at all events largely meaningless in the case of the Flores’ claim at least. The s. 140 application was the defence offered by the Flores’ to Mr. Glegg’s claim. Almost none of the time, entries in the Flores’ bill of costs relates to the civil claim alone.
[8] Accordingly, it is my intention to make a global award of costs to the applicants in each proceeding that accounts for costs of the relevant application and costs of the action that gave rise to it.
(b) If so, are there any amounts to be excluded from the calculation of costs?
[9] Mr. Glegg has challenged aspects of the Flores’ claim for costs of the underlying civil proceeding on the basis that he was awarded costs from the Flores’ for certain steps in that proceeding. No such claim was made by him in relation to costs arising from the JFCY proceeding.
[10] Costs of a motion once awarded are final as to that motion and those costs. They cannot be re-claimed through the back door. The Bill of Costs of the Flores applicants contains an entry claiming $6,328.00 in respect of a refusals motion on a full indemnity basis and corresponding amount calculated on a substantial or partial indemnity scale ($5,695.20 and $3,796.80 respectively). Mr. Glegg was awarded his costs of that motion (in an amount significantly higher than that claimed by the Flores’) by Master Graham. That decision is a final one and cannot be collaterally attacked here.
[11] The costs to be awarded to the applicants shall not include costs of any step in the proceeding for which costs have already been determined. The JFCY parties have already removed any such claims from their bill of costs. A corresponding deduction shall be made from the Flores’ claim.
(c) On what scale ought costs be awarded on these two applications and, if applicable, on the underlying actions that were stayed?
[12] Both applicants have submitted claims for an enhanced scale of costs to be awarded. Both seek full indemnity costs or, in the alternative substantial indemnity costs. Mr. Glegg for his part submits that partial indemnity costs is the norm and ought not to be departed from here.
[13] In relation to the Flores litigation, Mr. Glegg notes that he commenced but the one proceeding against the Flores’ – they were not implicated in the numerous other strands of the litigation that followed the decision of O.G. to liberate herself from her father’s custody. Further, the Flores’ conduct of this litigation, Mr. Glegg submits, has resulted in delays and pointless additional appearances. He points to a delay in the conduct of the long-scheduled cross-examinations at the instance of the Flores’, the refusals motion arising from that as well as unsuccessful attempts by the Flores’ to strike a hearsay solicitor’s affidavit and to seek the production of the entire client file of Mr. Glegg’s counsel. Each of these steps added time and costs to the proceeding.
[14] I am not inclined to attach much weight to these objections advanced by Mr. Glegg. The unsuccessful refusals motion gave rise to an award of costs in his favour which is not being revisited here. The settlement offer made by Mr. Glegg early on in the proceeding (that both parties stipulated I might consider as part of the application) made clear that discovery from the Flores’ of evidence and documents that might be used in the Florida action against O.G.’s mother and step-father was a prime if not the main driving cause of the claim advanced by Mr. Glegg against them. The suspicion that Mr. Glegg was seeking to secure his litigation goals indirectly through tactical use of the pre-hearing phase of the Flores’ application was a natural one even if the means chosen to deal with that fear might have been relatively inefficient given the implied undertaking rule applicable in this jurisdiction in particular. Mr. Glegg made almost no use of any of the materials arising from the extensive cross-examination process he undertook in response to the application – an application that relied almost entirely upon the record of prior proceedings in this jurisdiction.
[15] I fully recognize that an award of costs beyond the partial indemnity scale must be viewed as exceptional and circumstances justifying a departure from the normal rule must be clearly spelled out. Further, an award of enhanced costs is by no means an automatic or default outcome of s. 140 applications. It is appropriate in this case to undertake a review of the circumstances that might justify a departure from the “normal rule” separately for each of the two groups of applicants.
[16] In the case of the JFCY applicants, I find that an award of full indemnity costs is fully justified. The nature of the claims advanced against the JFCY applicants combined with a review of the factors listed in Rule 57.01 of the Rules of Civil Procedure fully supports such an exceptional order.
[17] The claims made by Mr. Glegg against the JFCY applicants were extreme and entirely without justification. He has continued to advance them quite undaunted by the numerous adverse decisions and warnings about the lines he was approaching if not crossing that he received from other judges along the way. He accused these applicants of conspiring to implement an “unlawful scheme” whose details included knowingly procuring perjured testimony to be used in court proceedings. These claims were as baseless as they were outrageous. He attempted to pursue those theories in administrative proceedings before the Law Society that fortunately were nipped in the bud. I shall not repeat my extensive review of the procedural history of Mr. Glegg’s obsessive pursuit of these claims as outlined in my reasons for decision. Among the conclusions that arose from that review was that Mr. Glegg has sought to use his financial means to bleed his opponents white and that he has been very substantially motivated by a desire to exact revenge on those he blames for his daughter’s decision. Such conclusions readily justify an exemplary award of costs.
[18] A review of the factors listed in Rule 57.01 of the Rules of Civil Procedure adds further support to this conclusion.
[19] Mr. Glegg’s admissions as to the rates charged by his own counsel and the amounts he has lavished on his various legal battles are relevant to establish the reasonable expectations of the unsuccessful party as to the costs being incurred. Those rates and amounts far exceed even the full indemnity claim made by JFCY here. Claims previously advanced by him for exceptionally high amounts of costs arising from relatively routine steps establish that his own expectations as to costs were pegged at or beyond any amounts sought by the successful parties here.
[20] JFCY retained counsel of its choice who agreed to provide services at rates considerably below the rates normally charged by the law firm and lawyers in question. I make this observation not from the perspective of implying that JFCY is entitled to a higher award of costs because its own lawyers discounted their rates – that would be a clearly irrational and inappropriate conclusion to reach. The observation is relevant to the reasonableness of the fees charged. Given the experience and skill of counsel involved, the actual rates charged appear to me to be eminently fair and reasonable in all of the circumstances, regardless of the scale of costs applied to such rates (be it full, substantial or partial indemnity – always recognizing that time and rates alone are not the sole drivers of a costs award).
[21] JFCY had no stake in Mr. Glegg’s on-going battle against his former spouse and his own daughter. JFCY is a legal aid clinic whose mission is to provide legal assistance to minors in need such as O.G. when her legal battles with her father began. There was nothing at all improper about any step in the proceeding taken by JFCY and its counsel. Their role ended relatively soon after it began when O.G. elected to abandon her claim for further support from her father after she turned eighteen. Nevertheless, JFCY has found itself dragged back into a fight in which it has no financial or other stake and required to incur very considerable expenses.
[22] The damages claimed by Mr. Glegg were enormous and the resources he was clearly willing to devote to pursuing them were considerable. This required a full-throated response by JFCY. While it is true that some s. 140 cases have not resulted in an enhanced scale of costs, there is a difference to be drawn between two types of vexatious litigants. Voluminous claims advanced on a scatter-gun basis by vexatious litigants with neither the resources nor the skills necessary to be more than a persistent nuisance – at times an expensive nuisance but nuisance nonetheless – stand in stark contrast to the harm able to be inflicted by a vexatious litigant able to marshal a concentrated, multi-front attack with nearly unlimited legal resources at his beck and call. The scale of the required response is entirely different. JFCY’s response was measured and reasonable in the circumstances.
[23] Mr. Glegg’s actions contributed to the time and expense needed to have these proceedings dealt with. His cross-examinations were lengthy yet resulted in little to no actual relevant evidence at the end of the day. He delivered an avalanche of material in his undertakings brief, little of which ended up being used. His bizarre attempt to separate these two clearly related applications (despite their being ordered to be heard together from almost the first day) further contributed to additional expenses being incurred. He persisted in using highly charged and pejorative language in his affidavits (including routine but hearsay solicitor’s affidavits) despite the numerous admonitions that these same tactics gave rise to in prior hearings.
[24] In light of the forgoing, I find that an award of full indemnity costs in favour of the JFCY applicants is fully justified.
[25] I apply a similar analysis to the Flores’ claim and reach a similar conclusion.
[26] The claims made against the Flores’ were similarly outrageous and baseless. They too stood accused of being active participants in a scheme to defraud the court and to procure perjured testimony. These baseless claims attacked their integrity as well as their pocketbooks.
[27] Similarly, my review of the criteria listed in Rule 57.01 of the Rules of Civil Procedure leads to similar conclusions in relation to the Flores’ and the proceedings undertaken by and against them.
[28] The comments made above regarding the reasonable expectations of the parties apply with added force to the costs claim of the Flores’. The hourly rates sought by their counsel are significantly lower than those disclosed by JFCY or Mr. Glegg’s counsel. Mr. Glegg received an award of costs on the refusals motion that exceeds the full indemnity claim of the Flores’ arising from that same motion. Mr. Glegg’s full-indemnity costs outline on that motion alone claimed $60,244 and 111 hours of lawyer and clerk time for a motion involving just 9 refusals. The average hourly rate claimed from timekeepers at all levels was thus over $540 per hour compared to the highest rate claimed by counsel for the Flores’ of $350 per hour. Hourly rates alone do not tell the full story of course, but there can be no doubt that the costs claims advanced by the Flores’, regardless of the scale applied, lie well within the bounds of the reasonable expectations of the unsuccessful party.
[29] The Flores’ had no financial stake in any of this – they simply offered to house a young woman in need for a few months. They were not paid for their assistance. They were not in the business of persuading young woman to leave their custodial parents and seek emancipation. They had no stake in Mr. Glegg’s vendetta beyond extricating themselves from it. In effect, JFCY and the Flores’ were both “collateral damage” in Mr. Glegg’s quest for revenge and personal vindication.
[30] Conversely, the damages claims faced by them were enormous and potentially catastrophic. As with JFCY, a serious response was required. The Flores formed the view that Mr. Glegg’s claim was a vexatious abuse of process from the outset. They were correct in their response.
[31] I cannot find that the Flores’ took steps that materially lengthened or added expense to the process. They might have risen to some of the bait planted by Mr. Glegg less vigorously – such as refraining from launching attacks on needlessly and improperly provocative language contained in what ought to have been a routine but neutral solicitor’s affidavit from an affiant who obviously had no first-hand information to impart. The overall arc of this proceeding was the result of a bitter dispute that had long-since decayed into an abuse of process on Mr. Glegg’s part. Undue second-guessing of the path taken to get out from underneath the weight of abusive litigation is not called for.
[32] In my view, the Flores’ are also entitled to their full indemnity costs after adjusting for the costs ordered against them by Master Graham.
(d) What amount of costs is fair and reasonable in the light of my findings on the foregoing matters and any other matters that ought to be considered pursuant to s. 131 of the COJA and Rule 57 of the Rules of Civil Procedure?
[33] My decision to award costs of both the underlying civil claim and the s. 140 COJA applications to each of the successful groups of applicants on a full indemnity scale does not end the matter. Even on a full indemnity scale, the court’s role is not that of a rubber stamp of costs claimed nor is my role confined to a mechanical application of hourly rates to docketed hours. Any award of costs must be fair and reasonable in all the circumstances regardless of the scale applied.
[34] Overall, I am quite satisfied that the scale of time commitments made by the successful applicant groups were eminently fair and reasonable in these circumstances. Among the circumstances to be borne in mind:
a. Mr. Glegg was engaged in an obsessively-pursued litigation campaign that had placed these parties in its cross-hairs. I have found this litigation campaign was vexatious and an abuse of process. Responding to such litigation from a party as well-funded and committed as Mr. Glegg was showing himself to be is complex and potentially difficult. Care must be taken to avoid the undue application of hindsight or hair-splitting to the conduct of such litigation.
b. The case involved an enormous volume of paper – even if in electronic format. Mr. Glegg’s insistence on duplicate application records, facta etc. all added additional complexity and volume to the file this court was required to assimilate. I have not tried to segregate who filed how many pages in which file – suffice it to say that kitchen sinks have been filed in other proceedings with considerably greater economy. There was a great deal of information to be absorbed and considerable effort was required to wring some semblance of order out of the potentially chaotic jumble of information. Such organization requires time and thus money.
c. The two applicant groups very reasonably and appropriately avoided duplication of effort. The division of labour ended up with JFCY bearing a somewhat greater share of the organizational work and their counsel rose to the challenge admirably with a well-hyperlinked factum and an easily navigated compendium. It all looks easy when the end result works and works smoothly – no judge should ever fail to appreciate the herculean task that is sometimes needed to get there. This was such a case.
[35] The Flores applicants claimed $57,045.23 in full indemnity costs plus $2,458.15 in disbursements, both amounts including HST for a combined total of $59,503.37. From this claimed amount, I must deduct $6,328.00 in full indemnity costs (including HST) claimed in respect of the refusals motion for the reasons given above. The net claim advanced by the Flores on a full-indemnity basis is thus $53,175.37.
[36] Each of these amounts is less than the full-indemnity claim made by Mr. Glegg for the one single motion on refusals (for which he was awarded $7,500). I have no difficulty in concluding that the full indemnity claim advanced by the Flores’, adjusted as I have done to remove the costs already dealt with by Master Graham, passes the overall “reality check” part of the assessment process. Each of the building blocks of the claim - hours, rates and tasks – passes the reasonableness test as does the overall result.
[37] The costs of the Flores’ for both the application and the underlying civil action are therefore assessed in the amount of $53,175.37 all inclusive.
[38] The JFCY applicants prepared a separate bill of costs for each of the application and the underlying civil claim. I have found that these applicants are entitled to have both bills of costs assessed and paid on a full indemnity basis. The amount claimed for the s. 140 COJA application is $173,021.65 for fees plus $3,694.90 for disbursements for a total of $176,716.55 including HST where applicable. For the civil action, the amounts claimed are $18,038.19 in fees and $1,215.72 in disbursements for a total of $19,253.91. The total claimed amount including disbursements and HST is thus $195,970.46.
[39] I have reviewed both bills of costs from the ground up – examining the hours docketed, the level of the docketing professional and the rates sought – on a task-by-task basis as set forth in both bills of costs. I have also examined the end result as part of a global “reality check” for reasonableness. I am satisfied that both bills of costs are fair and reasonable after subjecting them to this ground-up and top-down scrutiny.
[40] I have already commented on the rates charged in relation to the reasonable expectations of the unsuccessful party and in relation to the skill and expertise of counsel reasonably selected. I have no qualms whatsoever regarding the reasonableness of the rates claimed in both bills of costs. I have examined the hours expended and the relative allocation of those hours between senior counsel and professionals with a lower hourly rate. The bills of costs both provide a detailed breakdown of those hours by the tasks undertaken. I have reviewed those claimed hours in light of the comments I have made above regarding complexity of the proceedings and in particular the factual complexity arising from the interconnecting strands of litigation that had to be untangled and analyzed as part of the process of building the case for a vexatious litigant finding. The hours appear to me to be quite reasonably allocated between timekeepers and are in the aggregate fair and reasonable.
[41] The overall claim of just under $200,000 appears to me to be fair and reasonable when viewed on a global basis as well. This amount must be viewed in the context of a party that was able to successfully navigate the defence and final disposition of a claim that sought millions in damages, risked placing the careers and professional reputations of the respondents in significant jeopardy and would otherwise have chewed up many multiples of that amount in litigation costs.
[42] The costs of the JFCY applicants are therefore assessed in the amount of $195,970.46 all inclusive.
Disposition
[43] In the result I make the following orders:
a. the costs of the Flores applicants in both the application and the underlying civil proceeding to which the application was directed are fixed at $53,175.37 all inclusive; and
b. the costs of the JFCY applicants in both the application and the underlying civil proceeding to which the application was directed are fixed at $195,970.46 all inclusive.
[44] Orders accordingly.
S. F. Dunphy J.
Date: January 24, 2022