Court File and Parties

Court File No.: CV-21-00674538-000 Date: 2023-03-07 Superior Court of Justice - Ontario

Re: TANYA REBELLO, Plaintiff – and – HIS MAJESTY THE KING IN RIGHT OF ONTARIO as represented by the Ministry of Transportation, Ministry of Government and Consumer Services and Service Ontario, Defendant

Before: Justice E.M. Morgan

Counsel: Tanya Rebello, on her own behalf Adam Mortimer and Bhavini Lekhi, for the Defendant

Heard: Costs submissions in writing

Costs Endorsement

[1] After a three-day trial on December 5, 6, and 20, 2022, the Defendant was successful in having the Plaintiff’s action dismissed. The Plaintiff had been seeking $15 million in damages flowing from an incident involving a mistaken transfer of her motor vehicle permit. I found that the mistake was corrected by the Defendant shortly after it occurred, but that the losses claimed by the Plaintiff flowed from her own refusal to pay her outstanding parking tickets: Rebello v. Ontario, 2023 ONSC 601.

[2] Defendant has submitted a Bill of Costs seeking partial indemnity costs from December 31, 2021 to April 14, 2022 in the amount of $9,740.45, and substantial indemnity costs from April 15, 2022 to December 20, 2022 in the amount of $88,880.40. With disbursements and HST, the Defendant’s total cost request comes to $101,846.44.

[3] Having succeeded at trial, the Defendant deserves its costs. The question is which scale is the appropriate one.

[4] Counsel for the Defendant submit that the Defendant served an offer to settle on April 14, 2022 which qualifies for substantial indemnity costs under Rule 49 of the Rules of Civil Procedure (the “Offer”). The Offer was open for acceptance until trial, but was never accepted by the Plaintiff.

[5] The Offer’s terms provided that in return for a dismissal of the action and a full and final release, the Defendant would pay the Plaintiff $809.00 plus her partial indemnity costs and disbursements to the date of the offer (to be agreed or assessed) and HST. The logic of the Offer was that the Plaintiff owed $808.75 in outstanding parking fines, which, under existing regulations, prevented the Defendant from re-attaching her licence plate to her car. The Defendant did not have the authority to waive the fines that the Plaintiff owed to the City of Toronto under the Provincial Offences Act. Instead, the Defendant’s Offer proposed paying the Plaintiff’s parking tickets for her, thereby facilitating the re-attaching of her vehicle license and allowing her to walk away from the action without bearing any costs.

[6] Not only did the Plaintiff not accept the Offer, she continued to refuse to pay the tickets that prevented her from driving her vehicle. Along with that, she proceeded to take a claim to trial that turned out to be barred by the Limitations Act. In the process, she advanced what were found to be patently false arguments that the parking tickets did not exist and that she did not know about them.

[7] In putting forward these arguments, the Plaintiff even claimed not to know that her friend, with whom she has collaborated in previous reported cases – a fact for which she was caught on cross-examination by Defendant’s counsel – had signed in as her agent and representative in court in an attempt to defend against her parking tickets: Ibid., at paras 30-35. Her demeanor at trial was civil, but her positions were manipulative and entirely contrary to the evidence and to reality.

[8] Although self-represented in this action, Defendant’s counsel’s cross-examination and even a cursory search of Ontario show that the Plaintiff is an experienced litigant in Ontario’s courts: see Rebello v. The Bank of Nova Scotia, 2018 ONSC 7127, Rebello v. Paragon Security, 2020 ONSC 2303, Rebello v. Del Property Management, 2021 ONSC 7888, Rebello v. The Bank of Nova Scotia, 2018 ONSC 4776, Rebello v. The Bank of Nova Scotia, 2017 ONSC 658, Rebello v. Attorney General for Ontario, 2021 ONSC 6502, Rebello v. Her Majesty the Queen in Right of Ontario, 2021 ONSC 3752. Despite her experience and the existence of a rather generous Offer, she proceeded to trial in what she should have seen was a futile exercise.

[9] While the principle of indemnity is an important factor to be considered for costs under Rule 57.01, it is to be measured against the requirements of justice under the circumstances. Thus, in exercising its discretion with respect to costs under section 131 of the Courts of Justice Act, it is the court’s task to “fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, 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), 71 OR (3d) 291, 2004 ONCA 14579, at para 26 (Ont CA). I therefore must take into account the entire context of the claim and the trial in deciding whether to accept or to reduce the costs sought by the Defendant.

[10] It is the Plaintiff’s view that, among other things, the amount of costs claimed by the Defendant is unduly high. In her written submissions, she argues:

The plaintiff also requests that this court should not grant any costs and order that all costs requested by the defendant be assessed by an Assessment Officer pursuant to Rule 57.01(3.1), 58.01 and 58.02, because of the extremely excessive and outrageous amount requested by the Crown of $101,846.44 or $88,880.40 substantial costs ($72,219.64 or $59,253 partial costs) which is clearly, a duplication, excessing and unreasonable. The Crown lawyers are salaried government employees which do not charge hourly and should not be granted costs at all. They should have used the lowest level lawyer as the skills of the lowest lawyer greatly exceeds the plaintiff skills who is self-litigating.

The Crown failed to provide the emails, documents, notes etc…, to justify all the docket entries, and if the court is considering costs, the court should refer costs to be assessment to an assessment officer pursuant to Rule 57.01(3.1) because of the outrageous amount requested. The Crown has deliberately inflated costs for matters which did not happen, or hours not spent or not necessary in its bill of costs.

[11] As Defendant’s counsel point out in their costs submissions, the Court of Appeal has instructed that a Bill of Costs should not be discounted just because the party is the Crown: Ontario v. Rothmans Inc., 2012 ONSC 1804, aff’d 2013 ONCA 353, leave to appeal refused 2013 SCCLE 83800. The fact that the Defendant’s lawyers are on salary does not come into play, as the Bill of Costs demonstrates that they kept dockets of their hourly work in precisely the way that courts expect when costs are claimed.

[12] In her written submissions, the Plaintiff in effect continues the approach that she took at the trial itself; that is, she denies (and demands proof) that Defendant’s counsel’s emails were ever sent, or that the Defendant’s litigation documents were ever produced, even though the emails were for the most part sent and the documents were for the most part delivered to the Plaintiff herself. I do not know why the Plaintiff resorts to such arguments, which seem designed to obstruct her opponent rather than to convince anyone of their merit. This is not the first costs award that the Plaintiff has encountered, and she has been told on previous occasions that taking what has been called an “obstructive” approach does not benefit her in arguing costs: Rebello v. Del Property Management, 2021 ONSC 7888, at para 73.

[13] The Plaintiff also argues in her costs submissions that it was the Defendant, and not her as Plaintiff, that insisted on pressing on to trial:

The Crown had the opportunity to bring a motion on limitation right from Day 1 as Justice Black stated in pre-trial, this would have ended the matter in one (1) hour, since they were convinced it was limitation barred. So, any increased costs are for a 3-day trial is for the Crown to incur themselves, as they made no attempts to reduce the hearing, but only to increase cost by extending the hearing.

[14] If I understand the point correctly, it is the Plaintiff’s view that, having brought her suit late and then gone to trial with what turned out to be a time-barred claim, she should not be made to pay costs because the Defendant could have had it dismissed earlier than they did. I do not accept that argument. The Defendant responded to the Plaintiff’s insistence on continuing with her futile action by making a reasonable Offer – in the result, a generous Offer – which the Plaintiff failed to accept.

[15] At some point, she must assume financial responsibility for her decision-making in this regard. Having insisted on taking to trial what anyone – including, it would now seem, the Plaintiff herself – could see was a claim doomed to fail, the Plaintiff has brought on herself a justifiable claim for costs on a substantial indemnity scale.

[16] Trials are time consuming and expensive. The Defendant’s Bill of Costs demonstrates that its counsel were conscientious in their preparation and conduct of the trial, but did not do more than was reasonably necessary to ensure their success.

[17] Moreover, there is nothing in the Plaintiff’s conduct of the action or her costs submissions that would prompt me to discount the amount in her favour. Her failure to accept an eminently reasonable Offer leads me to conclude that the Defendant deserves the costs that it seeks.

[18] Rounding off the Defendant’s request for convenience, the Plaintiff shall pay the Defendant $100,000 in costs, all inclusive.

Released: March 7, 2023 Morgan J.