Court File and Parties

COURT FILE NO.: CV-21-86328 DATE: 2022/08/15

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Kamala Tiwari, also known as Althea Reyes, Plaintiff AND Jennifer Chevalier, Canadian Broadcasting Corporation, Stephen Heckbert, Kyrstin Dumon, Jessica Dumon and Brooke Shaw, Defendants

BEFORE: Justice Heather Williams

COUNSEL: Oussama Hamza, for the Plaintiff Sean Moreman, for Defendants, CBC and Jennifer Chevalier Daniel Kastner, and Shakir Rahim, for the Defendants; Kyrstin Dumon, Jessica Dumon and Brooke Shaw Chris Rutherford and Jonathan Collings for the Defendant Stephen Heckbert

HEARD: In writing

COSTS ENDORSEMENT

[1] Jennifer Chevalier and Canadian Broadcasting Corporation (“the CBC defendants”) brought a motion on behalf of all defendants to dismiss the action on the basis that the name of the plaintiff, Kamala Tiwari, was a pseudonym. The CBC defendants argued that the action was started by Althea Reyes, who had been declared a vexatious litigant under s. 140 of the Courts of Justice Act, R.S.O. 1990, c.C.43, as am, and who was not, therefore, entitled to start an action without leave of the court.

[2] I granted the motion, dismissed the action and ordered that the title of proceeding be amended to refer to the plaintiff as “Kamala Tiwari, also known as Althea Reyes.”

[3] The CBC defendants now request substantial indemnity costs including fees of $7,650 and disbursements of $503.

[4] The defendant Stephen Heckbert requests substantial indemnity fees of $10,963.39 and disbursements of $438.70.

[5] The remaining defendants wrote to the court to say they would not seek costs.

[6] Mr. Hamza filed responding costs submissions. Mr. Hamza focused primarily on the CBC defendants’ stated intention to seek costs against him personally if they could establish that he had knowledge of his client’s real identity. Mr. Hamza requested a waiver of privilege on documents that he said would acquit him. Mr. Hamza said that because of the “conspiracy theory by the Court and CBC” that he had colluded with Ms. Reyes, he could not act for the plaintiff without the court and opposing counsel presuming he was aiding and abetting a criminal. Mr. Hamza said “[t]he Court and CBC cannot make such allegations and threats in public without being put to the strict proof thereof.”

[7] Mr. Hamza also argued that the plaintiff should not be liable for costs. Mr. Hamza said the plaintiff had offered to submit to the judgment of “identification experts” and that the defendants should not have refused this option. Mr. Hamza also argued that the court’s decision and reasons “imply the defendants did not need to do any work for their clients” and that the defendants were not, therefore, entitled to compensation.

[8] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, provides that the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court. Although discretionary, a court must fix costs on a principled basis. (Davies v. Clarington, 2009 ONCA 722, at para. 40.) Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sets out the factors the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing, in exercising its discretion under section 131 of the Courts of Justice Act to award costs. The Court of Appeal has made it clear that the fixing of costs does not begin and end with a calculation of hours times rates. It says the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay rather than an amount fixed by the actual costs incurred by the successful litigant. (Boucher v. Public Accountants Council for the Province of Ontario, (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para. 26.)

[9] Elevated costs, which are costs on a substantial or full indemnity basis, should only be awarded through the operation of rule 49.10, which links costs to certain offers to settle, or if the losing party has engaged in conduct worthy of sanction. (Davies, at paras. 28 and 40.)

[10] I am satisfied that substantial indemnity costs are warranted in this case. I dismissed the action on the basis that it was an abuse of process, having been commenced by a person other than the person whose name appeared as plaintiff in the title of proceeding. I also found that the action was started by a person who had been declared a vexatious litigant and did not have the right to start an action without leave of the court. In my view, these findings constitute conduct on the part of Ms. Reyes that justifies an order of substantial indemnity costs against her.

[11] The CBC defendants’ request for fees is based on notional rates and estimated hours because the CBC’s legal department does not docket its time. I consider the CBC defendants’ request for substantial indemnity fees of $7,650 to be entirely reasonable, given the moderate complexity of the motion, the number of court appearances prior to the hearing before me and that the costs were for both the motion and the action, the motion having disposed of the action.

[12] My impression of the reasonableness of the CBC defendants’ fees is bolstered by the fact that Mr. Heckbert’s request for substantial indemnity fees is higher than that of the CBC defendants, even though the CBC defendants’ counsel prepared the written materials and presented the oral argument on behalf of all defendants. In these circumstances, a costs order in favour of Mr. Heckbert exceeding that of the CBC defendants would not seem right to me.

[13] In all of the circumstances, I consider $7,650 to be a reasonable amount of substantial indemnity fees for the plaintiff to pay to the CBC defendants and to Mr. Heckbert.

[14] It is not necessary for me to comment on the CBC defendants’ suggestion that they may bring a motion in the future to request costs against Mr. Hamza. Such a motion is not before me. I will not, therefore, comment on Mr. Hamza’s request for orders relating to that motion.

[15] Finally, the reference in Mr. Hamza’s costs submissions to the court and CBC sharing a conspiracy theory, Mr. Hamza’s statement that “the Court and CBC cannot make […] allegations and threats in public without being put to the strict proof thereof” and Mr. Hamza’s suggestion that the CBC and the court are both government agencies are inappropriate and demonstrate a fundamental misunderstanding about the role of the court. A concern I expressed about Mr. Hamza’s conduct at the conclusion of my May 27, 2022 endorsement has been highlighted.

Disposition

[16] The plaintiff Kamala Tiwari also known as Althea Reyes shall pay the CBC defendants substantial indemnity fees of $7,650 plus HST, plus disbursements of $503 plus any applicable HST.

[17] The plaintiff Kamala Tiwari also known as Althea Reyes shall also pay the defendant Stephen Heckbert substantial indemnity fees of $7,650 plus HST, plus disbursements of $438.70, inclusive of HST.

Date: August 15, 2022

COURT FILE NO.: CV-21-86328 DATE: 2022/08/15

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Kamala Tiwari, plaintiff AND Jennifer Chevalier, Canadian Broadcasting Corporation, Stephen Heckbert, Kyrstin Dumon, Jessica Dumon and Brooke Shaw, defendants

COUNSEL: Oussama Hamza, for the Plaintiff Sean Moreman, for Defendants, CBC and Jennifer Chevalier Daniel Kastner, and Shakir Rahim, for the Defendants, Kyrstin Dumon, Jessica Dumon and Brooke Shaw Chris Rutherford and Jonathan Collings for the Defendant, Stephen Heckbert

ENDORSEMENT

Williams J.

Released: August 15, 2022