Court File and Parties
COURT FILE NO.: CV-21-86203
DATE: 2022/10/25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Deidre Ann Moore, Plaintiff
AND
Khaldoon Habib-Allah, Lamah El-Rayes, Diego Fernandez-Stoll, Jonathan Kiska, Ottawa Police Service, Defendants
BEFORE: Madam Justice Robyn M. Ryan Bell
COUNSEL: Ms. Moore, self-represented
Christopher A. Moore, for the Defendant Khaldoon Habib-Allah
Michael D. Swindley, for the Defendant Lamah El-Rayes
Kelli Day, for the Defendant Diego Fernandez-Stoll
Charlotte Watson, for the Defendant Jonathan Kiska
Michelle Doody, for the Defendant Ottawa Police Service
HEARD: In writing
COSTS ENDORSEMENT
Overview
[1] On September 16, 2022, I granted the defendants’ motions under r. 21 of the Rules of Civil Procedure[^1]: I dismissed Ms. Moore’s action as against the individual defendants and struck out the claim in its entirety, without leave to amend.[^2] This is my decision on costs of the motions and the action.
[2] The defendants seek their costs of their respective motions and the action on a substantial indemnity basis. The (all inclusive) amounts claimed are:
• on behalf of Mr. Habib-Allah (the “Landlord”) - $9,633.62;
• on behalf of Mr. El-Rayes (the “Real Estate Agent”) - $18,303.32;
• on behalf of Mr. Fernandez-Stoll (the “Paralegal”) - $13,285.72;
• on behalf of Mr. Kiska (the “Former Spouse”) - $12,600.50; and
• on behalf of the Ottawa Police Service (“OPS”) - $4,651.75.
[3] The defendants jointly submit that an award of substantial indemnity costs is warranted because Ms. Moore alleged fraud or the knowing assistance of fraud against each of them. In addition, Ms. Moore alleged dishonesty, and fraudulent and unethical conduct against some of the defendants in their professional capacities. The Landlord and the Paralegal also rely on their r. 49 offers to settle in support of their position that they are entitled to their costs on a substantial indemnity basis.
[4] In response, Ms. Moore argues that “[t]ypically, the court protects the perpetrators when, really, the “Dispose of the Spouse”, taxpayer-funded, criminal syndicate should be exposed and disassembled.” Ms. Moore requests an order for costs in the amount of $25,000 and an order of $5,000, “given the degree of ‘Bad Faith’ exhibited by the other parties.” In the alternative, she requests that any costs award be in the cause or deferred until the action against the defendants has concluded.
[5] The action against the defendants is at an end. The claim has been struck out, without leave to amend. As the successful parties on the motions and the action, the defendants are entitled to their costs.
Scale of Costs
(i) Allegations of fraud and theft
[6] Elevated costs may be warranted where a party has engaged in conduct that is reprehensible, scandalous, or outrageous: Davies v. Clarington (Municipality), at para. 28.[^3] As Lax J. observed in Manning v. Herb Epp, at paras. 7-9[^4]:
Costs on the higher scale can be awarded as a form of chastisement and as a mark of the court’s disapproval of a litigant’s conduct. This is intended to punish as well as to deter others from engaging in similar conduct. Unproved allegations of fraud frequently attract awards on the higher scale. Unproved allegations of breach of trust, conspiracy, misrepresentation, breach of fiduciary duty, and the like, may also attract this kind of award: Beaver Lumber Co. v. 222044 Ontario Ltd. (1997), 5 C.P.C. (4th) 253 (Ont. Gen. Div.) at p. 256.
Cost sanctions are imposed for these kinds of unproved allegations because they are rooted in assertions of dishonesty and deceit and go to the heart of a person’s integrity: Bargman v. Rooney (1999), 30 C.P.C. (4th) 259 (Ont. Gen. Div.) at pp. 268-269; Dyer v. Mekinda Snyder Partnership Inc. (1998), 21 O.R. (3d) 180 (Gen. Div.) and see cases referred to at pp.184-185. Where serious allegations of dishonest or illegal acts are made, but are so inadequately pleaded that they are not permitted to go forward, costs consequences should likewise follow. These allegations have stood in the public record and over the heads of the defendants. The plaintiffs admitted that the allegations were akin to or as serious as fraud. The allegations were made against public officials in the course of carrying out their public duties. To strike recklessly at the integrity of a person occupying a position of public trust is a serious matter.
The task for the court is to punish and deter unwarranted allegations and egregious conduct, but without discouraging the tenacious pursuit and advancement of serious claims of impropriety in a proper case. This was not a serious claim of impropriety. Essentially, the plaintiffs sought to recover damages in respect of a solicitor’s retainer in which they had no prospective economic interest and made unsupported allegations of illegal conduct on the part of the Mayor and his co-defendants. The allegations were designed to harm and embarrass. It is appropriate to award costs to the Epp defendants on a substantial indemnity scale.
[7] The observations of Lax J. in Manning are apposite to this case. Ms. Moore’s allegations against the individual defendants included fraud and theft “following an eviction scam.” Her allegations against the OPS included “the knowing assistance of fraud.” Ms. Moore’s claim was struck out in its entirety, without leave to amend because it was plain and obvious that the claim disclosed no reasonable cause of action against any of the defendants: Moore, at para. 65.
[8] Courts are, typically, more amenable to a substantial indemnity costs award where unfounded claims are alleged that seriously prejudice the character and reputation of professional persons acting in their professional capacity, because of the adverse impact such allegations have on a litigant’s professional ethics and integrity in the public’s view: Millson v. 1156653 Ontario Limited, at para. 35.[^5]
[9] In this case, all the defendants, with the exception of the Former Spouse, were targeted by allegations of dishonesty and fraudulent conduct in their professional capacities. Ms. Moore’s claims against them constituted a serious ethical attack on their integrity and honesty as professionals. Ms. Moore alleged that the “eviction scam” of which the Former Spouse was allegedly a part, was “part of the new-age domestic violence and/or domestic terrorism that is utilized when a loving mother in Ottawa to protect her vulnerable children by divorcing a horrible man connected to a white-collar, blue-collar, no collar crime”: Moore, at para. 24. Her allegations impugned the administration of justice and the impartiality of the judiciary. Ms. Moore persists in making similar allegations in her costs submissions, stating that “[t]h[e] outcome of this Motion may be similar to the outcome of most of Moore’s legal matters in this crime-infested capital of Canada.”
[10] Ms. Moore’s serious allegations of fraud and dishonesty were so inadequately pleaded that they were not permitted to proceed. I have no hesitation in concluding that each of the defendants is entitled to their costs on a substantial indemnity basis.
(ii) Offers to settle
[11] The Landlord and the Paralegal are also entitled to their costs on a substantial indemnity basis because they exceeded their respective offers to settle.
[12] On June 28, 2021, the Landlord offered to settle Ms. Moore’s claims against him for $500. The offer was open until the commencement of trial and complied with the requirements of r. 49.10(2) of the Rules of Civil Procedure. Ms. Moore did not accept this offer.
[13] On June 29, 2021, the Paralegal offered to settle Ms. Moore’s claims against him for $500. This offer, too, complied with the requirements of r. 49.10(2). Ms. Moore did not accept the Paralegal’s offer.
[14] Rule 49.10(2) provides that when a defendant makes an offer to settle and the plaintiff obtains a judgment that is less favourable than the offer, the defendant is entitled to partial indemnity costs from the date of the offer to settle. By contrast, where a plaintiff exceeds their offer to settle, the plaintiff is entitled to substantial indemnity costs from the date of the offer to settle.
[15] The intent of r. 49.10(2) is to award partial indemnity costs to the defendant from the date of its offer to settle, where the plaintiff obtained some relief, but was awarded less that the amount of the defendant’s offer to settle: S. & A. Strasser Ltd. v. Richmond Hill (Town).[^6] However, where a plaintiff is completely unsuccessful and does not recover any damages or other relief, the court may award costs on a substantial indemnity basis from the date of the defendant’s offer to settle: S. & A. Strasser; OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., at paras. 83-86;[^7] Falsetto, at paras. 36-38.
[16] In this case, the claim has been struck out, without leave to amend. The Landlord and the Paralegal exceeded their respective offers to settle. Accordingly, for this additional reason, the Landlord and the Paralegal are entitled to their costs on a substantial indemnity basis from June 28 and June 29, 2021, respectively.
Rule 57.01 factors
[17] The defendants were entirely successful on their respective motions; as a result, the claim is at an end. I agree with the defendants that the proceedings were complex, in large part due to Ms. Moore’s sweeping allegations of wrongful conduct on the part of the defendants. On the motions, the defendants argued that the claim was within the exclusive jurisdiction of the Landlord and Tenant Board and that the claim disclosed no reasonable cause of action against them. Other arguments were advanced: the Real Estate Agent argued that the claims against him were statute barred. The Former Spouse argued that the subject matter of the claim against him was the subject matter of another proceeding pending in Ontario. Both the Former Spouse and the Paralegal argued that the claim was frivolous or vexatious or otherwise an abuse of the court’s process. A number of the defendants sought security for costs in the event their respective motions were unsuccessful.
[18] The claim alleged serious misconduct by the defendants. Despite her action being dismissed and the claim being struck out, Ms. Moore persists in making these allegations in her costs submissions stating, “the court needs to acknowledge the obvious collusion between the co-defendants and recognize the crimes that are being committed while the torts are executed” and “[t]he tortious and criminal behaviour of law enforcement is incredibly important given the power that they have – especially in “Violence against Women” cases where children are involved.” The claim sought significant monetary damages against each of the defendants. The defendants were entitled to take the action seriously and respond accordingly.
[19] The motions were originally scheduled to be heard on March 8, 2022. The original return date was scheduled in consultation with Ms. Moore. The defendants’ motion materials were served in accordance with the timelines under the Rules of Civil Procedure. However, Ms. Moore failed to prepare a response, resulting in an adjournment of the March 8 hearing date. The defendants are entitled to their costs thrown away for this attendance.
[20] Ms. Moore characterizes the hourly rates of counsel as “highway robbery.” I disagree. I find the hourly rates and time spent by counsel for the defendants to be reasonable, based on their experience, and given the complexity and importance of this case. That the costs claimed by the Real Estate Agent are somewhat higher than the costs claimed by the other defendants is to be expected given that counsel for the Real Estate Agent “took the lead” on the r. 21 motions.
[21] Ultimately, the costs fixed by the court “should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant”: Boucher v. Public Accountants Council for the Province of Ontario.[^8] Ms. Moore submits “[i]t has already been deemed by the court that seeking a cost award against Moore who is merely in pursuit of accessing justice would be ‘cold-hearted, meaningless, and just mean.’” I note that in the matter relied on by Ms. Moore, there was divided success between the parties. That matter was not a civil claim for damages.
[22] In any event, each matter must be determined on its own merits. In this case, I have found that the serious allegations of fraud and theft made by Ms. Moore and her unfounded attacks on the defendants’ professional integrity constitute reprehensible conduct that warrants the court’s sanction. Ms. Moore persists in making criminal-type allegations against the defendants in her costs submissions and she continues to impugn the administration of justice. This is not a case of Ms. Moore being “merely in pursuit of accessing justice.” This is not one of those rare cases involving exceptional sympathetic circumstances warranting a reduction in a reasonable award of costs because of impecuniosity: Aguas v. The Estate of Curtis Rivard, deceased, Premier Express Lines and Associates Leasing, at paras. 9-13.[^9] These allegations have stood in the public record and over the heads of the defendants for more than a year. Substantial indemnity costs are appropriate to sanction Ms. Moore’s egregious conduct.
Disposition
[23] Having regard to all the above and the relevant factors in r. 57.01, I find that the costs requested on behalf of each of defendants are fair and reasonable amounts for Ms. Moore to pay to the defendants in respect of the motions and the action. I order Ms. Moore to pay the following amounts to the defendants within 60 days:
• to Mr. Habib-Allah - $9633.62;
• to Mr. El-Rayes - $18,303.32;
• to Mr. Fernandez-Stoll - $13,285.72;
• to Mr. Kiska - $12,600.50; and
• to the OPS - $4,651.75.
Madam Justice Robyn M. Ryan Bell
Date: October 25, 2022
COURT FILE NO.: CV-21-86203
DATE: 2022/10/25
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Deidre Ann Moore, Plaintiff
AND
Khaldoon Habib-Allah, Lamah El-Rayes, Diego Fernandez-Stoll, Jonathan Kiska, Ottawa Police Service, Defendants
BEFORE: Madam Justice Robyn Ryan Bell
COUNSEL: Ms. Moore, self-represented
Christopher A. Moore, for the Defendant Khaldoon Habib-Allah
Michael D. Swindley, for the Defendant Lamah El-Rayes
Kelli Day, for the Defendant Diego Fernandez-Stoll
Charlotte Watson, for the Defendant Jonathan Kiska
Michelle Doody, for the Defendant Ottawa Police Service
ENDORSEMENT
Justice Ryan Bell
Released: October 25, 2022
[^1]: R.R.O. 1990, Reg. 194. [^2]: Moore v. Habib-Allah, 2022 ONSC 5290. [^3]: 2009 ONCA 722, 100 O.R. (3d) 66. [^4]: 2006 35631, cited in Falsetto v. Falsetto et al., 2022 ONSC 5089, at para. 12. [^5]: 2007 48657 (S.C.J.). [^6]: (1990) 1990 6856 (ON CA), 1 O.R. (3d) 243 (C.A.). [^7]: 2021 ONCA 520. [^8]: (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.). [^9]: 2018 ONSC 401.