Court File and Parties

Court File No.: FC-17-361 and FC-12-912-5 Date: 2023/03/15 Superior Court of Justice - Ontario

Re: EDITH MARIE MARIELLE BERNARD and KIMBERLY MELISSA STEWART, Applicants -and- WILLIAM NDZE FUHGEH, Respondent

AND RE: MARIE-HELENE GODBOUT and MARC CODERRE, Intervenors

Before: Justice D. Summers

Counsel: Applicants are self-represented Respondent is self-represented Susan Sack and Andrea Acri, for the Intervenors

Heard: In Writing

Costs Endorsement

[1] My endorsement dated January 13, 2023 dealt with the Intervenors’ motion to dismiss Mr. Fuhgeh’s motions to set aside two orders made in 2017 or, in the alternative, to stay the proceedings until outstanding costs awards against him were paid in full. The alternative relief was granted.

[2] Mr. Fuhgeh also had a cross-motion before the court. He sought an order providing him with additional time to respond to the Intervenors’ motion, an order requiring them to provide a responsive and particularized Response to his Request to Admit, and an order striking portions of the opposing materials. My endorsement explained why I would strike one of thirty-one paragraphs in the Intervenors’ affidavit, as well as the non-factual parts of Ms. Bernard’s supporting affidavit. I did not grant Mr. Fuhgeh’s request for additional time to respond to the Intervenors’ motion and dismissed his claim in relation to the Request to Admit.

[3] The Intervenors were undoubtedly successful. The fact that they succeeded on their claim for alternative relief rather than the primary relief sought does not alter the fact that they were the successful party and presumptively entitled to costs. The lack of success on their primary head of relief neither disentitles them to costs nor does it entitle Mr. Fuhgeh to costs.

[4] Both parties submit that their opponent was unreasonable in seeking certain relief without prior leave from the case management judge who had granted leave to the Intervenors to bring a motion to stay, but not leave to pursue an order dismissing Mr. Fuhgeh’s proceedings. Nor had the case management judge granted Mr. Fuhgeh leave to bring a motion at all. These submissions offset each other.

[5] The Intervenors seek $15,090.02 as costs, the amount being the actual fees to the client. In support of their claim for full recovery, they argue that Mr. Fuhgeh’s failure to respond to the substance of their motion and then request more time to do so, was unreasonable considering the motion schedule had been established with the case management judge. As I noted in my endorsement, Mr. Fuhgeh’s approach was not prudent and did not benefit him in the result, however, I do not agree that it increased the Intervenors’ costs.

[6] In my view, the Intervenors are entitled to partial indemnity costs for both motions and the related case management conference, with some reduction for time spent on the unsuccessful dismissal argument, and for some time spent in preparation for what was scheduled as a one-hour motion.

[7] I do not agree with Mr. Fuhgeh that he is entitled to any costs due to his success in having the above-noted portions of the affidavits struck. This success is nominal in comparison to his request for additional time to respond to the Intervenors’ motion, and for an order requiring them to provide a responsive and particularized Response to his Request to Admit. More importantly, it did not achieve a result and was of no assistance to him in defending the Intervenors’ motion.

[8] I decline to accept the lengthy affidavit tendered by Mr. Fuhgeh, “to adduce evidence of financial hardship and to discharge the duty of each party to correct material factual errors in a Decision”. Financial hardship is not a shield against awards of costs. Mr. Fuhgeh commenced proceedings in 2018 to set aside orders made in 2017. The litigation he started has been lengthy and expensive for all concerned, and his case is not yet ready for final determination. In these circumstances he ought not to expect the court to exercise its’ discretion to reduce his responsibility for costs incurred by other participants in the case.

[9] For these reasons, I award costs to the Intervenors in the amount of $6,500 inclusive of HST, payable by Mr. Fuhgeh forthwith.

Justice D. Summers Date: March 15, 2023 Released: March 15, 2023