Court File and Parties

Court File No.: CV-14-518093 Date: 2022-10-21 Superior Court of Justice - Ontario

Re: Diana Michelle Daniella Hordo, Plaintiff And: State Farm Mutual Automobile Insurance Company, Defendant

Before: Vermette J.

Counsel: Diana Michelle Daniella Hordo, self-represented Kendall Andjelkovic, for the Defendant

Heard: In writing

Endorsement

[1] On June 20, 2022, I released an endorsement (2022 ONSC 3678) granting the Defendant’s motion in part, ordering the Plaintiff to attend an examination for discovery in person, and adjourning the Defendant’s motion to dismiss the action for delay to a case conference to be held before me after September 30, 2022. My endorsement stated that if costs could not be agreed upon, the parties were to make written submissions with respect to the costs of both the motion heard by me on February 23, 2022 and the motion before Master Short (as the title then was) in March 2020.

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

Positions of the parties

a. Position of the Defendant

[3] The Defendant’s position is that it is entitled to the costs of its motions returnable on March 2, 2020 and February 23, 2022 on a substantial indemnity basis. The Defendant states that it was largely successful on the motion that was ultimately heard on February 23, 2022, and that the Plaintiff engaged in vexatious and frivolous conduct that ought to attract a costs award on a substantial indemnity basis. The Defendant seeks costs on a substantial indemnity basis in the amount of $9,290.97, which, it submits, are reasonable given the circumstances.

[4] The Defendant points out that thirteen years after the motor vehicle accident that is the subject of this action and more than seven years after the commencement of this action, examinations for discovery have not been completed. The Defendant states that it has exhausted significant efforts and resources in attempting to move this matter forward despite the refusal of the Plaintiff to cooperate.

[5] The Defendant argues that the Plaintiff is responsible for the motion being delayed from March 2, 2020 to February 23, 2022. It refers to the inappropriate communications from the Plaintiff’s father to the Court prior to the March 2, 2020 motion, the Plaintiff’s refusal to consent to the removal of her lawyer of record despite clearly indicating that she no longer wanted to be represented by him, and the Plaintiff’s voluminous, irrelevant and frivolous motion materials that had to be reviewed and addressed by the Defendant.

[6] In support of its request for costs on a substantial indemnity basis, the Defendant argues that the Plaintiff has unnecessarily run up the costs in the litigation, has engaged in abusive conduct and has advanced unfounded allegations of improper conduct by the Defendant and its counsel. In addition, the Defendant points out that the Plaintiff has been aware since 2018 that the Defendant required an in-person examination, or further documentation supporting the need for it to proceed in writing.

b. Position of the Plaintiff

[7] For the most part, the Plaintiff’s costs submissions are not submissions on costs. They contain a series of comments on my reasons and on the merits of the action, as well as allegations of bias on the part of the Court and allegations of fraud as against the Defendant and its counsel. The Plaintiff indicates her intention to appeal to the Court of Appeal and the Supreme Court of Canada.

[8] The last section of the Plaintiff’s costs submissions reads as follows:

COST CLAIM:

Cost for this motion $ 10,750.00

Punitive and Exemplary Damages $5,000,000.00

Non-Earner Benefits $1,335,318.35 (July 15 2020 + INT & Penalty)

Housekeeping Benefits $ 382,729.12 (July 15 2020 + INT)

Payable by: [Counsel for the Defendant], [former lawyer of record of the Plaintiff] and in the alternative Certas/Desjardins and State Farm Mutual Automobile Insurance Company

[9] No support is offered with respect to any of the numbers set out above or the Plaintiff’s entitlement to costs in light of the outcome of the motion.

Discussion

a. Recusal request

[10] In her costs submissions, the Plaintiff asks that I recuse myself for bias. Costs submissions are not the proper forum to ask for a judge’s recusal. A motion must be brought. I also note that I have recently dealt with and rejected allegations of bias raised by the Plaintiff: see 2021 ONSC 6193.

b. Entitlement to costs

[11] The Defendant was largely successful on its motion. There are no factors in this case that militate against the general principle that costs should follow the event.

c. Scale of costs

[12] As has been observed in many cases, costs on an elevated scale are exceptional and are reserved for those situations when a party has displayed reprehensible, scandalous or outrageous conduct: see Quickie Convenience Stores Corp. v. Parkland Fuel Corporation, 2021 ONCA 287 at para. 4.

[13] In my view, this is a case where substantial indemnity costs are warranted. The Plaintiff filed voluminous responding materials that were largely irrelevant to the issues raised on the motion. I found that the Plaintiff’s materials contained numerous misleading and inaccurate statements, and some outright falsehoods: 2022 ONSC 3678 at para. 62. In addition, the Plaintiff’s materials contained disparaging and vexatious statements and serious allegations against her former lawyer of record and the Defendant’s lawyers, including allegations of criminal conduct.

[14] Among other things, I rely on the following statement of the Court of Appeal in Unisys Canada Inc. v. York Three Associates Inc., 2001 CanLII 7276 at para. 15 (Ont. C.A.):

On the issue of costs we agree with the respondent that the appellant’s conduct in making unsubstantiated allegations of fraud, misconduct, or dishonesty, (or other conduct analogous to the foregoing), is sufficiently reprehensible to warrant awarding solicitor-and-client costs in favour of the aggrieved party [citations omitted]. Conduct of this nature is particularly blameworthy when aimed at the integrity of a lawyer [citation omitted].

[15] I also find that the Plaintiff’s conduct has unnecessarily lengthened the proceeding (Rule 57.01(1)(e)) and that her response to the motion was improper, vexatious and unnecessary (Rule 57.01(1)(f)). As pointed out in my reasons (at para. 78), the Plaintiff has been aware since at least July 2018 that the Defendant’s position was that the Plaintiff had to attend an examination for discovery in person, and that the medical evidence relied upon by the Plaintiff was insufficient to justify conducting the Plaintiff’s examination for discovery in writing. Numerous communications have been exchanged on this point over the years, and the issue was raised in the March 2, 2020 motion before Master Short and at least one case conference. Despite this, the Plaintiff chose not to include any current evidence of her ability to attend an examination for discovery in person in her motion materials which, as stated above, were largely irrelevant.

[16] Further, I agree with the Defendant that the Plaintiff is responsible for the motion being delayed from March 2, 2020 to February 23, 2022. As stated in my reasons (para. 100), the adjournment on March 2, 2020 was in large part due to the conduct of the Plaintiff’s father prior to the motion, and the delay in having the motion heard after that date was due to the fact that the Plaintiff’s representation by her counsel had to be dealt with first. As I found in a prior motion, the Plaintiff had no basis to object to the motion to remove her lawyer of record, and her conduct with respect to that motion unnecessarily lengthened the proceeding and was improper and vexatious: see 2021 ONSC 7229 at paras. 5, 7, 9.

d. Quantum

[17] The Plaintiff did not make any submissions with respect to the quantum of costs sought by the Defendant. However, I note that the costs that she seeks for the motion are higher than the costs sought by the Defendant. While the amount of costs requested by the Plaintiff could not be relied upon to grant costs to the Plaintiff as, among other things, it is unsupported, I find that the amount sought by the Plaintiff is a relevant factor when considering what she would have reasonably expected to pay in the event that she was unsuccessful on the motion.

[18] I have reviewed the Defendant’s costs outline and, in light of the circumstances of this motion, I find the time spent and the amount sought by the Defendant for the March 2, 2020 and the February 23, 2022 motions to be reasonable.

Conclusion

[19] 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 Defendant is on a substantial indemnity basis in the all-inclusive amount of $9,290.97. In my view, this is an amount that the Plaintiff should reasonably have expected to pay in the event that she was unsuccessful on the motion. The costs are to be paid by the Plaintiff to the Defendant within 30 days.

Vermette J.

Date: October 21, 2022