Court File and Parties

Court File No.: CV-13-20063 Date: 2023-10-05 Superior Court of Justice – Ontario

Re: Sunsource Grids Inc., Plaintiff/Defendant by Counterclaim And: University of Windsor, Defendant/Plaintiff by Counterclaim

Before: Howard J.

Counsel: Yan David Payne and Hashim Syed, for the Plaintiff Tom Serafimovski and Josephine Stark, for the Defendant

Heard: Written submissions

COSTS ENDORSEMENT

Overview

[1] The plaintiff, Sunsource Grids Inc. (“Sunsource”) brought an action for damages against the defendant, University of Windsor (the “University”), in the amount of $40 million for breach of contract, misrepresentation, and intentional unlawful interference with economic relations, seeking $14.5 to $15.6 million in compensatory damages and $25 million in punitive damages.

[2] Following a lengthy trial, which spanned over three years, and for comprehensive written reasons for judgment released October 28, 2022,[^1] the trial judge in this matter, Verbeem J., dismissed Sunsource’s action in its entirety and allowed the University’s counterclaim in part, ordering the plaintiff to pay the defendant $21,800 plus prejudgment interest.

[3] In para. 1331 of his Trial Decision, Verbeem J. fixed a schedule for delivery of the parties’ costs submissions. The University and Sunsource delivered their various submissions in accordance with the prescribed schedule.[^2]

[4] Mr. Justice Verbeem retired from the court, for medical reasons, effective December 15, 2022.

[5] Pursuant to the endorsement of then Regional Senior Justice Thomas dated December 15, 2022,[^3] made under clause 123(7)(a) of the Courts of Justice Act,[^4] I was directed to determine the outstanding issue of costs.

[6] The parties have been unable to agree on costs.

[7] I have read and considered all the submissions, bill of costs, offers to settle, and other materials received, as well as the Trial Decision in its entirety.

[8] The position of the University is that, inter alia, it is entitled to its costs of the proceeding on a substantial indemnity basis, totalling $640,589.62 all-inclusive, and that the cost award should be made, on a joint and severable basis, against Sunsource and its principal, Mr. Marlon Hurst, personally.

[9] The position of Sunsource is that any costs awarded to the University should be calculated on a partial indemnity basis and no costs should be made against Mr. Hurst.

Governing Legal Principles

[10] In Ontario, cost awards in civil law matters are governed by s. 131 of the Courts of Justice Act and, in most cases, rule 57.01 of the Rules of Civil Procedure.[^5]

[11] Subsection 131(1) of the Courts of Justice Act confers upon the court a general discretion to determine costs, in the following terms:

Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[12] It has been said that making an award of costs is inherently an exercise of judicial discretion. Indeed, the Supreme Court of Canada and our Court of Appeal have held that, “costs awards are ‘quintessentially discretionary.’”[^6]

[13] That said, the discretion conferred by s. 131(1) of the Courts of Justice Act is expressly made subject to the “rules of court.” Rule 57 of the Rules of Civil Procedure deals with the awarding and fixing of costs in civil proceedings and provides guidance in the exercise of the court’s discretion by enumerating circumstances and factors that the court may consider when determining costs. In this regard, subrule 57.01(1) provides that:

57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer;

(h.1) whether a party unreasonably objected to proceeding by telephone conference or video conference under rule 1.08; and

(i) any other matter relevant to the question of costs.

[14] The indemnification of the successful party is a paramount objective – but not the only one – to be served by a costs order.[^7] Our Court of Appeal has recognized that: “[m]odern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants.”[^8]

[15] In DUCA Financial Services Credit Union Ltd. v. Bozzo, Cumming J. described the “normative approach” to costs awards in Ontario as follows:

… first, that costs follow the event, premised upon a two-way, or loser pay, costs approach; second, that costs are awarded on a partial indemnity basis; and third, that costs are payable forthwith, i.e., within 30 days. Discretion can, of course, be exercised in exceptional circumstances to depart from any one or more of these norms.[^9]

[16] In fixing the amount of costs to be awarded, the court’s objective is not to reimburse a litigant for every dollar spent on legal fees. “The fixing of costs is not a bookkeeping exercise.”[^10] Rather, in exercising its discretion, a court must produce a result that is fair and reasonable in all the circumstances.[^11] The “overriding principle is reasonableness.”[^12]

[17] As the Ontario Court of Appeal observed in its leading decision in Boucher v. Public Accountants Council (Ontario): “[o]verall, as this court has said, the objective is 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.”[^13]

[18] The court should also consider the totality of the costs award to ensure that it is not disproportionate to the amount recovered.[^14] That is consistent with the directive of subrule 1.04(1.1) of the Rules of Civil Procedure that in applying the rules, “the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.” That said, while the consideration of proportionality “is necessary to the soundness of any costs award and to ensure the health of the justice system,” the overarching principle remains that the order for costs must be fair and reasonable.[^15]

[19] I am guided by these governing principles here.

Analysis

Presumptive entitlement

[20] As I have reviewed above, the indemnification of the successful party is a paramount objective in making costs awards, and the “normative approach” in Ontario is that costs should follow the event.

[21] There is no reason to depart from the presumptive rule here. The University was clearly the successful party here; the action against it was dismissed in its entirety, and its counterclaim was allowed in part, albeit in a relatively modest amount. The University did not engage in any conduct that would disentitle it from costs. The University is entitled to its costs of the action and its counterclaim.

The scale of the costs award

[22] One of the central disputes between the parties is the question of the scale of the award. The University submits that it should be awarded costs on an elevated scale. Sunsource maintains that the award of costs should be made on the partial indemnity scale.

[23] More particularly, the University seeks its costs of the proceeding on a substantial indemnity basis in the all-inclusive amount of $640,589.62, being the total of $393,540 claimed for fees, $51,160.20 for HST on those fees, $173,353.47 for disbursements, and $22,535.95 for HST on the taxable disbursements. In the alternative, the University claims that it should recover its costs from the commencement of the proceeding up to September 29, 2017 (the date of its first Rule 49 offer) on a partial indemnity basis, and thereafter on a substantial indemnity basis.

[24] There is no real disagreement between the parties as to the legal principles that apply to claims for an award of costs on an elevated scale. An award of costs on an elevated scale is justified in only very narrow circumstances. As our Court of Appeal said in Net Connect Installation Inc. v. Mobile Zone Inc.:

An award of costs on an elevated scale is justified in only very narrow circumstances – where an offer to settle is engaged or where the losing party has engaged in behaviour worthy of sanction: Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (Ont. C.A.) at para. 28. Substantial indemnity costs is the elevated scale of costs normally resorted to when the court wishes to express its disapproval of the conduct of a party to the litigation. It follows that conduct worthy of sanction would have to be especially egregious to justify the highest scale of full indemnity costs.[^16]

[25] On the latter point, I note that the University does not claim costs on a full indemnity basis.

[26] The University’s claim for substantial indemnity costs is based on both grounds identified in Net Connect. The University argues that its offers to settle were more favourable to Sunsource than the result at trial and also the losing party plaintiff engaged in behaviour that is worthy of sanction by the court.

The University’s offers to settle

[27] The University served an offer to settle upon the plaintiff by letter dated September 29, 2017, offering to settle all claims of the plaintiff on the basis of the University withdrawing its counterclaim and paying Sunsource the all-inclusive amount of $25,000. The offer was expressed to remain open until one minute after the commencement of trial.

[28] I note that Rule 49 offer, made in September 2017, was extended to Sunsource some eight months before the first day of trial commenced. However, the offer was rejected by Sunsource.

[29] It goes without saying that the University’s offer to settle of September 2017 represented a significantly more favourable result for Sunsource than the outcome of the trial, where its action was dismissed in its entirety. Had Sunsource accepted the offer back in September 2017, it would have at least had some positive recovery[^17] and would have almost certainly avoided liability for payment of the defendant’s costs and, for its part, the University would not have had cause to incur the very significant legal costs that attend a lengthy trial spanning three years.

[30] I also note that, although the University concedes it was not a written Rule 49 offer, the University did make a further settlement offer during a mid-trial settlement conference that was conducted before me, at which point the University offered to pay the plaintiff the all‑inclusive sum of $100,000 to resolve the proceeding and avoid further trial costs, including the fees of the experts that were retained by the University to testify at trial. Again, Sunsource dismissed the offer. Indeed, to my mind, it is not unfair to say that, with a rather dismissive countenance, Mr. Hurst rejected the offer out-of-hand at the mid-trial conference before me.

[31] Subrule 49.10(2) of the Rules of Civil Procedure provides for certain cost consequences when a plaintiff dismisses a defendant’s offer to settle, as follows:

Where an offer to settle,

(a) is made by a defendant at least seven days before the commencement of the hearing;

(b) is not withdrawn and does not expire before the commencement of the hearing; and

(c) is not accepted by the plaintiff,

and the plaintiff obtains a judgment as favourable as or less favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer was served and the defendant is entitled to partial indemnity costs from that date, unless the court orders otherwise.

[32] However, appellate courts have repeated held that the language of subrule 49.10(2) makes it “clear that the rule has no application where the plaintiff fails to recover any judgment.”[^18]

[33] Many courts have noted that in Strasser, where the defendant made an offer of $30,000 in a case where the plaintiff’s action was ultimately dismissed at trial, the Court of Appeal went on to endorse an award of partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter, based on the principles enunciated in rule 57.01, reasoning that the defendant was entitled to “a bonus” for making an offer in the face of a claim that was dismissed.[^19]

[34] That said, the case law has continued to develop since the Court of Appeal’s 1990 decision in Strasser. More recently, the Court of Appeal explained in Iannarella v. Corbett that:

The development of this court’s approach to awards of substantial indemnity costs has evolved since Strasser, as this court noted in Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66 (Ont. C.A.). Outside of rule 49.10, to make such an award as a matter of judicial discretion the court must find that the party has been guilty of egregious misconduct in the proceeding. See St. Elizabeth Home Society v. Hamilton (City), 2010 ONCA 280 (Ont. C.A.), at para. 92 and McBride Metal Fabricating Corp. v. H & W Sales Co. (2002), 2002 41899 (ON CA), 59 O.R. (3d) 97 (Ont. C.A.), at para. 39. I can see no basis in this case on which the trial judge could have found such misconduct on the appellants’ part.[^20]

[35] Thus, the question then becomes whether there is egregious conduct on the part of the plaintiff. And that, in turn, takes us to the second ground on which the University submits that it should have its costs on a substantial indemnity basis.

Misconduct worthy of court sanction

[36] It is well settled that allegations of fraud or other similarly serious misconduct that are placed on the record by a plaintiff and pursued at trial may expose that plaintiff to costs on a substantial indemnity basis if such allegations are ultimately found to be totally without merit by the trial judge.

[37] Some of the earlier case law was canvassed by Blair J. (as he then was) in his 1992 decision in 131843 Canada Inc. v. Double “R” (Toronto) Ltd., where the court held that:

The real question at issue is whether the defendants, or some of them, should be awarded costs on a solicitor-and-client scale, as opposed to the normal party-and-party scale.

The power to make such an award is clearly within the discretion of the court. It is equally clear, however, that such a power is only exercised in special and rare cases. See, for example, Foulis v. Robinson (1978), 1978 1307 (ON CA), 8 C.P.C. 198, 21 O.R. (2d) 769, 92 D.L.R. (3d) 134 (C.A.) and S & A Strasser Ltd. v. Richmond Hill (Town), supra.

Cases where allegations of fraud are made and found to be totally unfounded fall into this latter category. So, too, do cases involving “other allegations of improper conduct seriously prejudicial to the character or reputation of a party”, which are found in the result to be totally unfounded: Re Bisyk (No. 2) (1980), 1980 1843 (ON SC), 32 O.R. (2d) 281 (H.C.), per Robins J. at p. 287 [O.R.].

In my opinion this matter is one of those special and rare cases where solicitor-and-client costs are warranted. The action was pleaded and pursued throughout on the basis that the defendants had “wrongfully and maliciously conspired ... to injure the plaintiff by appropriating the transaction and its attendant benefits for the benefit of Vasa, McGorman, Cowper and [518092 Ontario Limited]”. The statement of claim alleged as well that Mr. Elliott and Mr. Boys had “made false statements to the plaintiff ... and failed to disclose material information to the plaintiff for the purpose of misleading the plaintiff “.

Mr. Pozhke was unrelenting in pressing this theme during the trial. In cross‑examination, he readily accepted and adopted the suggestion that the defendants had “stolen” his interest in the property. Counsel for the plaintiff continued to advance the conspiracy and misconduct arguments in closing, although, in addition, he did draw upon the claims of inducing breach of contract and intentional interference with economic relations (neither of which claim was pleaded).

Allegations of “appropriating” a transaction, and of “stealing” an interest in property are serious allegations, as is the allegation that one has made “false statements” for the “purpose of misleading”. They go to the heart of a person’s integrity, and to my mind, are analogous to allegations of fraud. They are “allegations of improper conduct seriously prejudicial to the character or reputation of a party”. In this case, I have held them to be quite unfounded.

As Mr. Justice Rosenberg said in Procor Ltd. v. U.S.W.A. (1990), 1990 6637 (ON SC), 71 O.R. (2d) 410, 65 D.L.R. (4th) 287 (H.C.) at p. 437 [O.R.]:

Solicitor-and-client costs may be justified where a defendant unjustly accuses a plaintiff of fraudulent and dishonest conduct, (and) persists in those assertions through to and including trial without being able to substantiate them.

So, too, where a plaintiff unjustly asserts such allegations against a defendant, with the same unsubstantiated results.[^21]

[38] The decision of Blair J. in 131843 Canada was cited with approval by the Ontario Court of Appeal in Twaits v. Monk, where the court simply held that: “[s]olicitor-client costs may be ordered in cases where allegations of fraud are shown to be totally unfounded.”[^22]

[39] More recently, in Pichelli v. Vuletic, LeMay J. of this court took note of the decision in 131843 Canada and subsequent authorities and applied them to the circumstances before the court there. His discussion, as follows, is instructive for present purposes:

All of the [defendant] Adair parties advance essentially the same argument on this point. In essence, that argument is that the costs of this case should be on a substantial indemnity basis because the allegations of fraud and other malfeasance made against them were unsubstantiated. In this regard, my attention was directed to an unreported decision of Jennings J. in Rasmussen v. H.R. Trucking Inc., where he stated:

[6] These Defendants request costs on a substantial indemnity basis. My jurisdiction to make such an award rests in part on Section 131(1) of the Courts of Justice Act, R.S.O. 1990 c. C43. Nothing in the provisions of Rule 57.01 affects my power under Section 131(1) of the Courts of Justice Act to award costs on a substantial indemnity basis.

[7] In Murano v. Bank of Montreal, (1998), 41 O.R. (3rd) (222), the Court of Appeal approved the finding of R.A. Blair J. (as he then was) in 131843 Canada Inc. v. Double “R” (Toronto) Ltd., (1992) 7 C.P.C (3rd)(15), that there are two classes of cases which may result in an award of solicitor and client costs, viz:

(a) cases where allegations of fraud are made, and these allegations are determined to be totally unfounded;

(b) cases involving “other allegations of improper conduct seriously prejudicial to the character or reputation of a party”, and these allegations are determined to be wholly unfounded.

[8] In Unisys Canada Inc. v. York Three Associates Inc., 2001 7276 (ON CA), [2001] O.J. No. 3777, the Court of Appeal cited Murano in support of the proposition that unsubstantiated allegations of fraud, misconduct or dishonesty or other conduct analogous thereto, is sufficiently reprehensible to warrant awarding costs on a substantial indemnity basis.

Similar findings were made in Manning v. Epp (2006 35631 (ONSC) at paragraphs 7-8) and Baryluk v. Campbell (2009 34041 (ONSC) at para. 10).

In addition, Mr. Adair points [to] Hamilton Cab Company Inc. v. Gill (2017 ONSC 4545 (Ont. S.C.J.)), where Reid J. stated (at paras. 32 to 34):

The claims by the Gill defendants that Mr. Dean fabricated diary entries after the fact to support his defence of the counterclaim were equivalent to allegations of fraud. They were unsupported and ultimately failed. It is one thing to allege that a lawyer failed to meet a required standard of care in the provision of legal advice. It is another and much more serious attack on a lawyer’s reputation to submit that the lawyer was guilty of fraud. Mr. Dean is a solicitor with 43 years’ experience. The majority of his practice is in the area of real estate. It is no surprise that he needed to fully and vigorously defend the claims made against him which I found were unjustified.

The complexity created in this case by the variety of defences raised by the Gill defendants and the counterclaim by them against Mr. Dean, the need for cross examinations on affidavits and ultimately case management by me required the joint involvement of both Hamilton cab and Mr. Dean.

Based on the foregoing, and a consideration of all the factors set out in Rule 57.01, I am satisfied that there should be an award of substantial indemnity costs payable by the Gill defendants to Hamilton Cab and Mr. Dean.

When these factors are considered, the Adair parties argue that they should be entitled to substantial indemnity costs. The Pichelli parties advanced claims of, inter alia, fraudulent misrepresentation, deceit, conversion and breach of fiduciary duty. The Adair parties argue that these causes of action were an attack on their integrity. I agree. In both cases, the pleadings of the Pichelli parties were a claim that the Adair parties had behaved in a fraudulent manner. …[^23]

[40] In the result in Pichelli, LeMay J. went on to find that “substantial indemnity costs are appropriate for all of the Adair Defendants.”[^24]

[41] In the instant case, the wide-ranging allegations of serious misconduct, fraudulent behaviour, and other allegations of improper conduct seriously prejudicial to the character or reputation of the defendant’s personnel, as advanced by Sunsource, were generally described by the trial judge in his Trial Decision in the following terms:

The plaintiff’s action is premised, in part, on allegations that the University engaged in misconduct in the formation of the research agreement contract, its performance of the contract, and false representations it made to the plaintiff concerning its contractual performance. The plaintiff also alleges that the University engaged in intentional tortious conduct during the term of the contract and after its conclusion that was intended to and did, in fact, unlawfully interfere with the plaintiff’s economic relations. Specifically, Sunsource alleges that the University:

a) unduly and unfairly pressured it to execute the research agreement even though the plaintiff was not satisfied with the contract’s terms;

b) counselled it to falsely exaggerate the value of its proposed contributions in the parties’ grant proposal for funding through the FedDev ARC initiative, despite the plaintiff’s objections;

c) engaged in little, if any, of the research and development activities that the University was obligated to perform under the terms of the research agreement;

d) misallocated the federal grant proceeds that it received from the FedDev for the research agreement, to other unrelated University projects, in which the plaintiff was not involved;

e) falsified documents that it filed with the FedDev administrator concerning the identities of students who contributed to the project;

f) wrongfully denied the existence of the parties’ oral agreement and falsely asserted that the plaintiff’s failure to deliver its in-kind contributions during the term of the research agreement constituted a breach of the contract by the plaintiff;

g) consistently lied to the plaintiff about the status and results of the research project;

h) had an obligation under the research agreement to support the plaintiff’s application for a utility patent with respect to IP related to the switch concept that was developed before the parties entered into the research agreement and failed to do so;

i) had an obligation under the research agreement to support Sunsource’s efforts to obtain private sector investors and investments during the term of and after the research agreement and failed to do so;

j) failed to provide its contractually prescribed deliverables at the end of the research agreement’s term, including a functional control algorithm and hardware-based prototype of the switch technology.[^25]

[42] Later in his Trial Decision, Verbeem J. described the plaintiff’s claim for breach of the University’s duty of honest performance in the following terms:

Sunsource posits that the University repeatedly breached its duty of honest performance of the research agreement, throughout and after the FedDev project period because:

1. The University mispresented the extent of Sunsource’s alleged non‑performance of its contractual obligations, both to Sunsource and the FedDev administrator.

2. The University lied about or misrepresented the extent of its own contractual performance, both to Sunsource and the FedDev administrator, and mislead the plaintiff to believe that it engaged in significant efforts and substantial progress was being made.

3. The University unjustifiably refused to acknowledge its contractual obligation to support Sunsource’s utility patent “upgrade” and feigned ignorance with respect to the nature and requirements of a novelty report.

4. The University withheld disclosure of technical information required by Sunsource, in furtherance of its scheme to usurp the switch technology for itself and to leverage more favourable terms for itself in the parties’ post Fed-Dev Development Agreement negotiations.[^26]

[43] Commenting on Sunsource’s pleading as a whole, the trial judge observed that, “[here,] the amended statement of claim alleges bad faith conduct by members of the University and particularizes the alleged fraudulent and misleading conduct of the University; the University’s alleged efforts to usurp the technology; and the University’s alleged effort to deal exclusively with VPI [a third-party investor, Vengeance Power Incorporated].”[^27]

[44] In particular, Sunsource and/or Mr. Hurst made serious allegations of impropriety against, especially, Dr. Narayan Kar, a professional electrical engineer and an esteemed professor in the University’s electrical engineering department (whom the trial judge found to be “exceptionally qualified”[^28] and a “credible and believable witness”[^29]), Ms. Heather Pratt, the University’s Executive Director of Research and Innovation Services (whom the trial judge found to be a “highly knowledgeable and informative witness” whose evidence was “credible” and “highly reliable”[^30]), and Mr. Horst Schmidt, who worked under Ms. Pratt in the University’s Office of Research Services (whom the trial judge found to be a “credible witness”[^31]).

[45] I note that the Trial Decision is replete with a multitude of references by the trial judge to the allegations of fraud and other egregious conduct that the plaintiff made against the University and its personnel.

[46] For example, the trial judge expressly noted the plaintiff’s allegations of “fraudulent misrepresentation,”[^32] of how the University “denies that it engaged in fraud … or that it falsified records,” [^33] that the University’s Dr. Kar “coached him [Mr. Hurst] to submit values … that were fraudulently inflated,”[^34] that Dr. Kar “unfairly pressured him [Mr. Hurst] to proceed with … fraudulently inflated in-kind contribution values,”[^35] (and yet) Mr. Hurst “did not express any concerns about fraudulently inflated in-kind contribution values,”[^36] that Mr. Hurst “maintains that during the meeting, he said that he was concerned about defrauding the federal government,”[^37] that “there is no contemporaneous documentation supporting Mr. Hurst’s evidence that he believed that the value of Sunsource’s in-kind contributions were inflated or that he believed the parties were actively defrauding the FedDev,”[^38] that “Mr. Hurst posits, in his evidence, that the content of the attestation form is fraudulent,”[^39] that “Mr. Hurst testifies that every student and research associate, apart from Dr. Iyer and Dr. Lu who received funds through the FedDev grant, did so fraudulently,”[^40] that Mr. Hurst’s “evidence in that regard founds his assertion that the University engaged in fraud and it created falsified documents,”[^41] that the issues raised by the plaintiff included “whether the University breached the contract, whether the University lied about its contractual performance, and the merits of the plaintiff’s fraud and falsified document allegations,”[^42] that Mr. Hurst’s “assertions of fraud made against the University, … which is linked to its claim that the University breached its duty of honest performance of the contract,”[^43] that the “plaintiff characterizes Mr. Schmidt’s statement during the phone call as a fraudulent or negligent misrepresentation,”[^44] that “the plaintiff has asserted several instances of what may, in common parlance, be referred to as fraud, deceit, and conspiracy,”[^45] that “Sunsource submits that the University engaged in fraudulent conduct,”[^46] “all of the students who are the subject of the fraud allegations,”[^47] that the “plaintiff appears to posit that … through Mr. Schmidt’s conduct, the University engaged in the tort of fraudulent misrepresentation,”[^48] etc.

[47] The trial judge also expressly noted a number of other very serious allegations advanced by Sunsource and/or Mr. Hurst that were akin to fraudulent or other disreputable conduct. For example – and just to canvass a much smaller sample of Mr. Hurst’s allegations than the multitude of his express allegations of fraud on the part of the University – the trial judge expressly noted that “Sunsource submits that Dr. Kar is incredible, in part, because he engaged in dishonest conduct by reporting …, when he knew that his representations in that regard were untrue,”[^49] that “I do not share the plaintiff’s view that Mr. Schmidt was intentionally deceitful in his testimony,”[^50] that “the plaintiff posits that the University intentionally misrepresented that Sunsource did not perform the contract,”[^51] and that the “plaintiff submits that the University’s conduct is so high-handed, malicious, and reprehensible that it justifies a non-compensatory award of punitive damages.”[^52]

[48] Tellingly, the trial judge himself noted the seriousness of a plaintiff making allegations of fraud, as follows:

Fraud is an exceptionally serious allegation and ought not to be advance lightly. The onus rests on the party alleging fraud to prove the allegations, on a balance of probabilities: see Carrington v. Thom, [1977] O.J. No. 1099 (C.A.). Sunsource has failed to meet its onus.[^53]

[49] In keeping with the latter statement of the trial judge, I note that Verbeem J. found that all of the allegations of fraud, dishonesty, or other disreputable conduct made by Sunsource and/or Mr. Hurst against the University and its personnel were completely without foundation.

[50] In particular, and only by way of illustration of some limited examples, I note that the trial judge found that:

a. “the allegations of fraud and falsified documents made by Sunsource are without merit”;[^54]

b. “Here, Mr. Hurst’s inaccurate and untrue evidence went to a matter of substance. Specifically, the basis for his assertions of fraud made against the University, in relation to its reporting to the FedDev and its allocation of the FedDev grant proceeds, which is linked to its claim that the University breached its duty of honest performance of the contract.”[^55]

c. “Rather, he [Mr. Hurst] asserted, without reservation or knowledge of any confirmatory evidence, that Dr. Kar engaged in serious fiscal malfeasance. The totality of the evidence does not persuasively support his testimonial assertions, rather it negates them. No FedDev proceeds were allocated to fund travel to France. This aspect of Mr. Hurst’s evidence demonstrates a testimonial reckless disregard for the truth, and a willingness to assert speculation as fact. It undermines Mr. Hurst’s credibility and the reliability of his evidence.”[^56] [Emphasis supplied.]

d. “However, the evidence does not persuade me that Dr. Kar engaged in the dishonest conduct alleged by the plaintiff.”[^57]

e. “I find that Dr. Kar did not engage in dishonest conduct, nor did he make false or fraudulent misrepresentations of fact …”[^58]

f. “In my view, the evidence as a whole does not establish that Dr. Kar falsified records related to the FedDev project or otherwise engaged in fraudulent activity in completing the FedDev attestation form.”[^59]

g. “I accept all aspects of Ms. Pratt’s evidence, including … Mr. Hurst never contemporaneously expressed any concerns that he or Sunsource were involved in defrauding the federal government through inflated ‘in-kind’ values set out in the FedDev grant application.”[^60]

h. “there is no merit to the plaintiff’s allegations that the University ‘defrauded’ the FedDev program.”[^61]

i. “Sunsource has failed to meet its onus. Apart from Mr. Hurst’s conclusory allegations offered in his testimony, the totality of the evidence supports that there were no false or materially misleading statements made by the University to the FedDev, or fraud in the allocation of the proceeds of the ARC grant.”[^62]

j. “The evidence that the University engaged in fraud, in respect of the foregoing, is slight. … Although he [Mr. Hurst] acknowledges in his evidence that he did not have the opportunity to observe the students who were contributing to the project … because he did not attend the lab frequently, Mr. Hurst continued to insist that only Dr. Lu and Dr. Iyer worked on the project.”[^63]

k. “… I find that the plaintiff has failed to establish that the University’s allocation of the proceeds … resulted from fraudulent or deceitful conduct by the University. The University did not lie or knowingly mispresent the parties’ respective performances under the contract in its reporting to the FedDev administrator.”[^64]

l. “The plaintiff has not established, on a balance of probabilities, that Mr. Schmidt, or any other member of the University, fraudulently or negligently misrepresented the University’s ownership and interest in any of the IP associated with the switch technology, … [etc.].”[^65]

m. “I conclude that Mr. Schmidt did not make any untrue, inaccurate, or misleading statements to them during their telephone conversation, or at any other time, whether negligently, recklessly, or fraudulently.”[^66]

n. “The University’s actions, viewed in their totality, are not consistent with an attempt to interfere, unlawfully or otherwise, with Sunsource’s economic interests. Rather, I am persuaded, on a balance of probabilities, that the University’s actions were designed to further both the economic interest of Sunsource and its own economic and non-economic interests.”[^67]

o. “Sunsource has failed to prove, on a balance of probabilities, that the University: engaged in an actionable breach of the research agreement; committed the tort of unlawful interference with its economic relations; engaged in fraud; made misrepresentations; or breached its duty of honest performance of the research agreement. Those were the only causes of action asserted against it.”[^68]

[51] Moreover, as the trial judge himself expressly noted, the multitude of allegations of fraudulent and other dishonest conduct made by Sunsource and/or Mr. Hurst against the University and its personnel had the effect of prolonging and/or extending the trial itself. There were a number of instances where the trial judge expressly noted that the impact of the plaintiff’s groundless allegations was to increase the length or complicate the conduct of the trial proceedings, where, for example, the trial judge noted the following:

a. “Mr. Hurst’s assertions of ‘fraud’ resulted in extensive and detailed evidence from Dr. Kar concerning the role each of the identified students, professors, and research associates performed in relation to the Sunsource project during the FedDev project period, the manner in which he determined the value of that respective work and the nature of academic research in general.”[^69]

b. “In addition, the University called evidence from almost every student, and research associate, including Dr. Iyer and Dr. Lu, who either received some portion of the FedDev grant proceeds, or who were identified as providing additional project-related work or contribution in the subsequent attestation form.”[^70]

c. “His [Mr. Hurst’s] adamant testimony that Dr. Lu and Dr. Iyer were the only students that worked on the project during the FedDev project period conflicts with other documentation that Mr. Hurst or Sunsource created. … In my view, Mr. Hurst’s correspondence evidences that he was aware that students other than Dr. Lu and Dr. Iyer contributed to the switch project and that the project benefited from their contributions. I find his evidence that only Dr. Lu and Dr. Iyer worked on the FedDev project to be both inaccurate and knowingly untrue. … Here, Mr. Hurst’s inaccurate and untrue evidence went to a matter of substance. Specifically, the basis for his assertions of fraud made against the University, in relation to its reporting to the FedDev and its allocation of the FedDev grant proceeds, which is linked to its claim that the University breached its duty of honest performance of the contract.”[^71] [Emphasis added.]

[52] In sum, the various allegations of fraud and other misconduct made by Sunsource and/or Mr. Hurst against the University and its personnel, especially, Dr. Kar, Ms. Pratt, and Mr. Schmidt, were found to be completely without merit by the trial judge.

[53] Those type of allegations go to the heart of a person’s integrity. They are allegations of improper conduct and personal impropriety that are seriously prejudicial to the character or reputation of an individual. Sunsource and Mr. Hurst pursued these allegations to full extent at trial; they were the subject of extensive cross-examination and full argument. And in the end, the trial judge found them to be completely unfounded.

[54] In my view, such egregious conduct by Sunsource and Mr. Hurst requires severe sanction by the court.

[55] For all of these reasons, but subject to my consideration of the relevant factors under subrule 57.01(1) of the Rules of Civil Procedure, I presumptively find that the University is entitled to its costs of the proceeding on a substantial indemnity basis.

Quantum of the University’s claim for costs

[56] I have considered all of the factors enumerated in subrule 57.01(1) of the Rules of Civil Procedure, not all of which are equally relevant in the instant circumstances (or at all). As such, I do not propose to specifically address each of the factors below.

[57] However, I would note at the outset that the responding cost submissions of Sunsource do not address any of the factors under subrule 57.01(1) directly, nor do they specifically challenge the quantum sought by the University in its bill of costs. In particular, I note that the submissions of Sunsource take no issue with the hourly rates claimed by counsel for the University, with the number of hours spent, or with the amount of disbursements.

[58] That said, I have conducted my own review of the University’s bill of costs.

[59] This was a lengthy and complex proceeding that required 49 days of trial; the parties’ closing argument consumed six days. The issues were dense. At its core, the plaintiff’s case challenged the University’s alleged non-performance of a research agreement between the parties, pursuant to which the University “agreed to carry out specified pre-commercialization, highly experimental, scientific research and development activities with respect to a project entitled ‘Power Point Tracking Based Smart Switch Development for Seamless Transfer Between Solar PV and Grid,’ … based on a seamless power switching concept.”[^72] The hearing of the case required expert evidence of electrical engineers and other professionals in order to inform the court’s determination of the factual and legal issues in dispute.

[60] In addition to the electrical engineering and other technological issues, the quantification of damages and the economic issues raised further issues and necessitated the calling of other expert witnesses.

[61] It was the type of trial where, in my view, it was certainly reasonable to have two counsel attend on behalf of the defendant University. I note that, again, the submissions of Sunsource express no issue with the defendant’s need for two lawyers, nor do they allege any duplication of effort, which, to be clear, is not evident on my review of the material.

[62] Nor is there any challenge by the plaintiff, as I have said, to the hourly rates claimed by defendant’s counsel. The bulk of the work on the file was performed by Mr. Serafimovski. All of the work in respect of steps in the proceeding prior to trial were performed by Mr. Serafimovski. Ms. Stark was engaged in the trial process only. Mr. Serafimovski was called to the Bar in 1990 and has 33 years of experience. Ms. Stark was called to the Bar in 1985 and has 38 years of experience. They both claim the same substantial indemnity rate of $300 per hour (and a partial indemnity hourly rate of $225). Those rates are beyond challenge, in my view. They are certainly fair and reasonable for counsel of Mr. Serafimovski’s and Ms. Stark’s considerable experience. Again, Sunsource raised no objection to the hourly rates sought by counsel.

[63] It is clear that the issues were of considerable importance to both parties. To Mr. Hurst’s mind, he was pursuing what he believed to be a $40 million claim. At the same time, I also accept the University’s submissions that:

The issues were of extremely great importance to the University as the action put into question the professional reputation and integrity of the University and its professor and employees. Essentially, allegations of impropriety, conspiracy and misappropriation of government funds were made against Heather Pratt, the Executive Director, Research and Innovation of the University and Dr. Kar, an esteemed professor at the University holding numerous degrees and positions of authority. The dismissal of the action against the University vindicated and restored the reputation of the University, Heather Pratt and Dr. Kar.[^73]

[64] Sunsource did not provide me with its bill of costs for the action, which would have been helpful for comparative purposes in trying to determine the reasonable expectations of the unsuccessful party respecting costs. In such circumstances, the case law has held that the court may draw an adverse inference against the party who chose or failed to provide the information and assume that its costs would have matched or exceeded the costs of the successful party. I make that inference here.[^74]

[65] Having considered, inter alia, the submissions of the parties and the bill of costs of the University, the offers to settle that were made by the University that were more favourable to the plaintiff than the result at trial, the egregious conduct of Sunsource and Mr. Hurst that requires the court’s stern sanction, the relevant factors enumerated in subrule 57.01(1) of the Rules of Civil Procedure, and the principles that should guide the court’s exercise of its discretion under s. 131 of the Courts of Justice Act to award costs, I find that the all‑inclusive amount of $640,589.62 represents a fair, reasonable, and proportionate award of costs for the successful defendant in the circumstances of this case.

[66] Accordingly, I fix the University’s costs of the proceeding, on a substantial indemnity basis, in the all-inclusive amount of $640,589.62, being the total of $393,540 claimed for fees, $51,160.20 for HST on those fees, $173,353.47 for disbursements, and $22,535.95 for HST on the taxable disbursements.

Award against Mr. Hurst Personally

[67] The University seeks an order that Mr. Hurst be made personally responsible, on a joint and several basis with Sunsource, for payment of the entire cost award.

[68] On behalf of Mr. Hurst, Sunsource’s Responding Submissions take exception to the University’s request. They raise a preliminary objection and argue that Mr. Hurst was never notified or advised at any stage of the proceeding that the University intended to seek costs against him personally. They submit that it would be procedurally unfair to Mr. Hurst to award costs against him personally.[^75]

[69] I disagree. I am satisfied there has been no procedural unfairness. There is no merit to the objection that insufficient notice has been given. The very same objection was made by the non-party who was ordered to pay costs personally – which objection was dismissed by the Divisional Court – in Marcos Building Design v. Lad.[^76]

[70] On this preliminary point, I agree completely with the reply of the University, which I accept and adopt as my own reasons, as follows:

Until such time as the decision was released and the findings of this Honourable Court were made, the University had no basis to give notice to Mr. Hurst of an intention to seek costs against him personally. Mr. Hurst was given ample notice of the intention of the University upon service of the Submissions on Costs of the University within 20 days of the date of the decision. In the circumstances of this case, this was ample notice to Mr. Hurst, further supported by the fact that the majority of the Submissions of Costs of Sunsource relate to the issue of awarding of costs against a non-party.[^77]

[71] On behalf of Mr. Hurst, Sunsource submits, relying on the Divisional Court’s decision in Middlesex Condominium Corp. No. 232 v. Bodkin,[^78] that a court may order costs against a non-party only if the three-part “man of straw” test is satisfied, i.e., that the non-party has status to bring the action, that the named plaintiff is not the true plaintiff, and that the named plaintiff is a “man of straw” put forward to protect the true plaintiff from liability for costs.[^79]

[72] I agree with the submissions of Sunsource that the “man of straw” test is not met in the instant case and that, for the reasons set out in Sunsource’s Responding Submissions, each prong of the three-part test fails when applied to the circumstances here.[^80]

[73] However, I also agree with the reply submissions of the University that the “man of straw” test has no application here. The University has not alleged or argued that Sunsource is a “man of straw.” That is not the basis of its claim that costs ought to be awarded against Mr. Hurst personally.[^81]

[74] It is not the case, as Sunsource asserts, that a court may order costs against a non-party only if the “man of straw” test is satisfied. That is certainly one basis for liability, but it is not the only one.

[75] The Ontario Court of Appeal has confirmed that the court has inherent jurisdiction to award costs against a non-party in appropriate circumstances. As the Court of Appeal said in OZ Merchandising, the court “has inherent jurisdiction to award costs against a non-party. That discretion is exercised sparingly in cases involving ‘gross misconduct, vexatious conduct, or conduct that undermines the fair administration of justice,’”[^82]

[76] The trial court in OZ Merchandising described the court’s authority in the following terms:

Superior courts have the inherent jurisdiction to order non-party costs in situations where the non-party has initiated or conducted litigation in a manner that amounts to an abuse of process: “[s]ituations of gross misconduct, vexatious conduct, or conduct that undermines the fair administration of justice . . . can be envisioned” (1318847 Ontario Ltd. v. Laval Tool & Mould Ltd., 2017 ONCA 184, 134 O.R. (3d) 641 (Ont. C.A.), at paras. 66, 76). Strathy C.J.O. described the policy rationale for such an award as follows:

[S]afeguarding public confidence in the fair administration of justice depends on preserving the availability of court facilities for justifiable proceedings and not permitting the costs of proceedings to be needlessly inflated, particularly at a time when delays and costs of litigation are so concerning from the perspective of access to justice (1318847 Ontario Ltd., at para. 87).[^83]

[77] Above all else, what is pre-eminently clear from the authorities is that, while the court does have the inherent jurisdiction to award costs against a non-party in the appropriate circumstances, that discretion is to be exercised sparingly and with caution.[^84]

[78] Against this legal background, I would note the factual circumstances of the instant case. Sunsource is not a publicly traded company. Sunsource does not have a large board of directors with numerous individuals who make decisions by consensus.[^85] Rather, it is a closely held company. I am advised that Mr. Hurst is the sole officer and director of Sunsource.[^86] I am advised that the only directing mind of Sunsource is Mr. Hurst.[^87] In this regard, I note the following submissions of the University:

The Plaintiff and Marlon Hurst throughout this proceeding continued to advance allegations of conspiracy, fraud, misappropriation of funds and attempts to usurp the technology of a research partner against the University and its employees and professors, particularly, Dr. Kar. The allegations continued throughout the closing arguments and were endorsed and pursued by Marlon Hurst personally. These were serious and reprehensible allegations, none of which were found to be supported by the evidence. Although the Plaintiff is a corporation, its only directing mind is Marlon Hurst. The allegations of fraud, misappropriation of funds, conspiracy and the attempts to usurp the technology were made by Marlon Hurst, personally, and as the directing mind of the Plaintiff corporation. As such, Mr. Hurst should be responsible for the reprehensible allegations attempting to tarnish the reputations of the University, Heather Pratt and Dr. Kar by way of an Order for costs against him personally.[^88] [Emphasis added.]

[79] I also note that in Sunsource’s Responding Submissions, Sunsource took no issue with and voiced no opposition to the factual submissions of the University as emphasized in the quoted passage above.

[80] I also note that, tellingly, throughout his Trial Decision, there were a number of instances where Verbeem J. referred to Sunsource and Mr. Hurst as being essentially interchangeable. In this regard, I note, for example, the following passages from the reasons for judgment of the trial judge, where he made the following statements [emphasis added throughout]:

a. “The totality of the evidence establishes that in the last few weeks of the 11-month FedDev project period, and specifically at the behest of Sunsource (Mr. Hurst), Dr. Kar and Mr. Schmidt began to work on a draft budget and …”[^89]

b. “Sunsource/Mr. Hurst never expressed a concern or objection to any member of the University that the stated values of its in-kind contributions were inflated.”[^90]

c. “Dr. Kar and the students in his lab were never prohibited by the University from communicating with Mr. Hurst/Sunsource at any time.”[^91]

d. “Dr. Kar engaged in good faith efforts to produce a novelty report in a form and with content that was acceptable to Mr. Hurst/Sunsource.”[^92]

e. “Third, Sunsource’s position, as disclosed by Mr. Hurst’s evidence, presumes that …”[^93]

f. “Pursuant to the research agreement, the plaintiff through Mr. Hurst, was obligated to expend 400 hours interacting with the University’s research and development team …”[^94]

g. “I also reject Sunsource’s position (and Mr. Hurst’s evidence) that the software-based prototype delivered by the University did not function …”[^95]

h. “Mr. Dorweiler’s understanding of the relevant contextual background and related interactions between Sunsource (Mr. Hurst) …”[^96]

[81] These references of the trial judge provide insight into the close identity of Sunsource with Mr. Hurst. Requests of the personnel of Sunsource’s contracting party were made “at the bequest of Sunsource (Mr. Hurst).” The “concerns or objections” of Sunsource were “expressed” by Mr. Hurst. University staff and students “communicated” with Sunsource by communicating with Mr. Hurst. Efforts to meet the contractual demands of Sunsource, the contracting party with the University, had to be “acceptable” to Mr. Hurst. The “position” of Sunsource as a party to the contract and the litigation was disclosed through the evidence of Mr. Hurst. The contractual obligations of Sunsource to “expend 400 hours” was to be performed by Mr. Hurst personally expending those hours. The trial judge’s rejection of a position taken by Sunsource as plaintiff was a function of the trial judge’s rejection of the evidence of Mr. Hurst. The expert retained by Sunsource to give opinion evidence as to business valuation and quantification of damages, i.e., Mr. Dorweiler,[^97] had “interactions” with Sunsource by having interactions with Mr. Hurst.

[82] Consistent with the observations and reasons for judgment of the trial judge, I note that at the mid-trial settlement conference before me, Mr. Hurst alone spoke for Sunsource (apart from legal counsel). Mr. Hurst alone presented as having sole decision-making responsibility for the positions of Sunsource on any settlement proposals. Mr. Hurst did not have to contact anyone to obtain authority. Mr. Hurst had the authority to reject the University’s settlement overtures. Mr. Hurst was the person – and the only person – directing the litigation on behalf of Sunsource.

[83] The insights of the trial judge, his comprehensive reasons for judgment, the material before me, and my own direct experience with Mr. Hurst at the mid-trial settlement conference all satisfy me that Mr. Hurst personally was in full control of the instant litigation commenced by Sunsource. Mr. Hurst personally controlled Sunsource’s conduct throughout the litigation. Mr. Hurst bears responsibility for Sunsource’s litigation, including its settlement positions, litigation choices, and conduct at trial.

[84] I would add three more examples that demonstrate Mr. Hurst’s personal and integral control of the litigation conduct of Sunsource at trial.

[85] The first example involves the so-called “oral agreement” that Mr. Hurst pursued at length in his evidence at trial. As referenced above, one of the allegations advanced by Sunsource was that the University failed to deliver a “hardware-based prototype of the switch technology.”[^98] Mr. Hurst testified at trial that at the parties’ “close-out” meeting of April 5, 2013, he was told that the University did not do so because Sunsource did not provide the solar panel array required under the terms of the FedDev research agreement.[^99] Dr. Kar testified that the University could not deliver a hardware-based prototype to Sunsource because Sunsource did not provide the necessary components to build one.[^100] In his evidence, Mr. Hurst reaffirmed that he believed that the parties had previously orally agreed to defer the solar array upgrade until after the FedDev was completed.[^101] Dr. Kar testified that there never was an oral agreement to defer Sunsource’s obligation to provide the solar array upgrade, which was necessary to develop a more reliable hardware-based prototype.[^102]

[86] As such, the existence of the so-called “oral agreement,” as posited by Mr. Hurst was a critical piece at trial for Sunsource’s position as to the parties’ respective obligations of performance of the research agreement.

[87] Understandably, the trial judge spent some considerable time considering the existence of the alleged oral agreement to defer Sunsource’s performance of its contractual obligations under the research agreement. Ultimately, the trial judge rejected the suggestion that the parties ever entered into such an oral agreement.[^103]

[88] Moreover, it was on account of Mr. Hurst’s assertion of the existence of this alleged “oral agreement” deferring Sunsource’s performance of its contractual obligations under the research agreement that caused the trial judge to make serious findings of credibility against Mr. Hurst personally. In this regard, I note, in particular, the following passages from the trial judge’s Trial Decision:

One of the most troubling aspects of Mr. Hurst’s evidence concerns his testimonial assertion that sometime during summer 2012, the parties entered into an “oral agreement” that amended the research agreement. Specifically, he asserts that the parties agreed to defer Sunsource’s obligation to provide and install solar panels and racking that were identified as part of Sunsource’s in-kind contributions in the terms of the research agreement and required to be supplied during the research agreement period. He asserts the parties agreed that the solar upgrade would be supplied sometime after the end of the research agreement/FedDev project. Mr. Hurst relies on the alleged oral agreement to answer the University’s claim that Sunsource breached the research agreement by failing to provide its in-kind contributions, before the end of the research agreement’s term. After considering this aspect of Mr. Hurst’s evidence in the context of the totality of the evidence, I do not accept that the parties made the alleged oral agreement.

Mr. Hurst’s testimony with respect to the making of the alleged oral agreement is not corroborated or confirmed by any other cogent evidence. Instead, the balance of the evidence overwhelmingly contradicts Mr. Hurst’s evidence on the point. I not only reject this aspect of Mr. Hurst’s evidence as untrue, but based on his persistent and adamant testimonial instance that the oral agreement was made, I conclude that this aspect of Mr. Hurst’s evidence was a deliberate attempt to create an innocuous explanation for Sunsource’s failure to fulfill its contractual obligation to provide its requisite in-kind contributions during the term of the research agreement. …[^104]

[89] As I have referenced, the trial judge made fairly damning (and repeated) findings of credibility against Mr. Hurst. The trial judge held as follows:

When Mr. Hurst’s evidence is considered in the context of the evidence as a whole, it leaves me with significant concerns over his credibility, as well as the reliability of aspects of his evidence. As a result, I am generally not persuaded by Mr. Hurst’s evidence. When his evidence conflicts with the evidence of other witnesses, unless I expressly state otherwise, I prefer the evidence of other witnesses over the evidence of Mr. Hurst. I will explain.

I had the opportunity to listen to and observe Mr. Hurst testify over the course of several days. Although he is exceptionably personable and passionate, when considered in the context of the evidence as a whole, I find that aspects of his evidence amount to incredible after the fact re-characterizations of narrative events, that are designed to place Sunsource (and himself) in the best possible position and the University, in general, and Dr. Kar, Ms. Pratt and Mr. Schmidt, in particular, in the worst possible position.[^105] [Emphasis added.]

This area of his [Mr. Hurst’s] testimony relates to a material matter in this proceeding, namely, whether Sunsource breached the research agreement and to what extent. It is a matter about which an honest witness is unlikely to be mistaken. Given the nature and extent of the untrue assertions that underwrote this aspect of Mr. Hurst’s evidence, I am left to conclude that it was an attempt to manufacture a justification for Sunsource’s failure to perform its contractual obligations prescribed by the FedDev research agreement. As a result, I do not find Mr. Hurst to be a credible witness and I generally reject his evidence when it conflicts with the evidence of other witnesses, including Dr. Kar, Mr. Schmidt, Ms. Pratt, and Ms. Kaps, except in instances where I expressly accept his evidence over that of another witness.[^106] [Emphasis added.]

[90] The second example that demonstrates Mr. Hurst’s personal control over the litigation conducted by Sunsource at trial involves the personal allegations that Mr. Hurst made against Mr. Schmidt over allegedly race-based comments that, Mr. Hurst says, were made by Mr. Schmidt during a telephone conversation that occurred on April 16, 2013. The trial judge dealt with the issue as follows:

Finally, I reject Mr. Hurst’s evidence that Mr. Schmidt advised him during an April 16, 2013 telephone conversation that any future development agreement would be between VPI and the University, and that Sunsource’s role would be greatly diminished in any further development efforts, or that the University would be the only party to any future patents. I reach that conclusion for the following reasons.

First, as I have previously explained, I have determined that Mr. Hurst is not a credible witness. There is no confirmatory evidence to support his assertions concerning Mr. Schmidt’s alleged statements. Although he sent an email to Ms. Pratt alluding to a disturbing conversation with Mr. Schmidt, he does not disclose specifics in the email.

Mr. Schmidt attributes Mr. Hurst’s email to a call in which he and Mr. Hurst engaged in an argument after Mr. Hurst asked him for a letter stating the University did not own any switch-related IP, and he refused, which was part of Mr. Hurst’s ongoing telephone calls, badgering him for such a letter. Mr. Schmidt refused to accede to Sunsource’s request that it relinquish its joint rights to IP developed under the FedDev. They argued. I accept that evidence, and find the content of that conversation is consistent with Mr. Hurst’s reference to a disturbing call.

I do not accept that Mr. Schmidt made racial comments. He has explained that he did not do so, at any time, and I accept his evidence. I also accept Mr. Schmidt did not make the comments that Mr. Hurst attributes to him about Sunsource’s role in future projects, and IP and patent ownership. I do not find that he ever made those types of assertions including before the March 25, 2013 budget was released.

Second, there is no credible evidence that during their subsequent call, Mr. Hurst advised Ms. Pratt about Mr. Schmidt’s alleged utterances concerning the University’s plan to exclude Sunsource from further development and patent activities, or race-based comments.[^107] [Emphasis added.]

[91] These passages and their references to the evidence at trial provide further support for my conclusion that it was Mr. Hurst who personally controlled the direction of the plaintiff at trial. The evidence of the alleged race-based comments, the making of which the trial judge rejected (again rejecting the evidence of Mr. Hurst), go to issues that involve Mr. Hurst only. As a corporation, Sunsource has no socially-constructed “race.” The so-called “race-based comments” were not directed at Sunsource, the corporate plaintiff, at all; they were directed (allegedly) at Mr. Hurst, personally. And they became an issue at the trial involving Sunsource, the corporate plaintiff, only because Mr. Hurst personally placed them in issue, because (he believed) they had been directed at him personally. In short, on this point, the trial about Sunsource became a trial about Mr. Hurst.

[92] The third example that demonstrate Mr. Hurst’s personal control of the litigation conduct of Sunsource at trial involves the repeated evidence that Mr. Hurst personally gave about the alleged fraudulent activity of the University during his testimony at trial, all of which was rejected by the trial judge.

[93] But even though the trial judge rejected the evidence of Mr. Hurst, for present purposes, I would note, by way of example only, the trial judge’s treatment of the following evidence of Mr. Hurst:

Although I am satisfied that Mr. Hurst is not a credible witness based on the foregoing, there are also other aspects of Mr. Hurst’s evidence that impair his credibility and the reliability of his testimony:

b) His adamant testimony that Dr. Lu and Dr. Iyer were the only students that worked on the project during the FedDev project period conflicts with other documentation that Mr. Hurst or Sunsource created. Specifically, following the January 2013 GE meeting, Mr. Hurst wrote to Dr. Kar, and among other things, specifically stated, “Thank you Dr. Kar for your brilliant dedication to your students, Xiaomin [Dr. Lu] and Iyer and other students who have worked on my project to date. [Underlined emphasis in the original.]

In my view, Mr. Hurst’s correspondence evidences that he was aware that students other than Dr. Lu and Dr. Iyer contributed to the switch project and that the project benefited from their contributions. I find his evidence that only Dr. Lu and Dr. Iyer worked on the FedDev project to be both inaccurate and knowingly untrue.

In arriving at that conclusion, I am mindful of Mr. Hurst’s evidence that his reference to “other students” was simply an error in his email. However, in the context of the correspondence as a whole, it is difficult to accept that the reference to other students who worked on the project, apart from Dr. Lu and Dr. Iyer, was an accidental slip. Contextually, that reference appears to be a deliberate acknowledgement that other students did, in fact, work on the project, which is entirely consistent with the balance of the evidence from informed witnesses, other than Mr. Hurst, that was adduced on that issue at trial.

Mr. Hurst was also adamant that Matthew Hurajt, one of Dr. Kar’s other graduate students at the time of the FedDev project, never worked on it. In cross-examination, Mr. Hurst acknowledged that in its “Confidential Business Plan” and other documentation that it produced, Sunsource expressly identified Dr. Hurajt as “one of the top students at the University of Windsor” and further represented that Dr. Hurajt contributed to Sunsource’s switch project.

In my view, the contradiction between documentation prepared by the plaintiff that identifies Dr. Hurajt as a contributor to the project and Mr. Hurst’s subsequent evidence to the contrary, undermines the truthfulness of the evidence. I have considered Mr. Hurst’s explanation that Dr. Hurajt was erroneously included in the business plan based on information provided by the University and I am not persuaded by it. His evidence establishes that the University contemporaneously advised Sunsource that Dr. Hurajt was contributing to its research efforts and development efforts. The balance of the evidence at trial overwhelmingly supports a finding that Dr. Hurajt contributed value to the project.

Here, Mr. Hurst’s inaccurate and untrue evidence went to a matter of substance. Specifically, the basis for his assertions of fraud made against the University, in relation to its reporting to the FedDev and its allocation of the FedDev grant proceeds, which is linked to its claim that the University breached its duty of honest performance of the contract.

c) In the absence of direct knowledge on the point, Mr. Hurst unequivocally testifies that Dr. Kar misallocated a portion of the FedDev grant proceeds and falsified records of the students that worked on the switch project, in order to fund his students’ attendance at an unrelated academic conference in France. His evidence in that regard may have been the product of speculation, but he did not qualify it as such when he gave it. Rather, he asserted, without reservation or knowledge of any confirmatory evidence, that Dr. Kar engaged in serious fiscal malfeasance. The totality of the evidence does not persuasively support his testimonial assertions, rather it negates them. No FedDev proceeds were allocated to fund travel to France. This aspect of Mr. Hurst’s evidence demonstrates a testimonial reckless disregard for the truth, and a willingness to assert speculation as fact. It undermines Mr. Hurst’s credibility and the reliability of his evidence.[^108] [Italicized emphasis added.]

[94] The trial judge also noted that the allegations of fraud that the plaintiff Sunsource pursued even up to closing argument at trial were a function of the evidence and direction of Mr. Hurst, as follows:

During closing submissions, counsel for Sunsource posited that Mr. Hurst’s factual narrative was consistently supported by contemporaneous documentation, which, in turn, bolstered his credibility. Yet several important aspects of this evidence find no contemporaneous documentary support, including: his asserted concern that the University encouraged and directed him to submit allegedly fraudulently inflated values for Sunsource’s proposed in-kind contributions as part of the parties’ FedDev grant application; the University supplied him with the specific inflated values to submit; and the existence of an oral agreement between the parties to defer Sunsource’s contractual obligation to supply and install an additional 1.5 kW solar array until sometime after the term of the research agreement ended. As I will set out below, the contemporaneous documentation explicitly contradicts the latter aspect of his evidence.

In addition, there are material aspects of Mr. Hurst’s evidence on matters of substance that are inconsistent with and contradicted by contemporaneous documentation that he (or Sunsource) created.

For example, Mr. Hurst adamantly testifies that none of Dr. Kar’s students, other than Dr. Lu and Dr. Iyer worked on the Sunsource project during the term of the research agreement. In turn, his evidence in that regard founds his assertion that the University engaged in fraud and it created falsified documents relating to both the distribution of FedDev grant proceeds (to students other than Dr. Lu and Dr. Iyer) and the content of the labour attestation form the University eventually produced to the FedDev.[^109] [Emphasis added.]

The evidence that the University engaged in fraud, in respect of the foregoing, is slight. Mr. Hurst testifies that apart from Dr. Lu and Dr. Iyer, the individuals who received proceeds from the ARC grant had no involvement in the FedDev project. Although he acknowledges in his evidence that he did not have the opportunity to observe the students who were contributing to the project during the FedDev period because he did not attend the lab frequently, Mr. Hurst continued to insist that only Dr. Lu and Dr. Iyer worked on the project.

The University has demonstrated that in addition to Dr. Lu and Dr. Iyer, other students and professors contributed to the Sunsource project during the FedDev period.[^110] [Emphasis added.]

[95] To my mind, it is clear from these and other passages in the Trial Decision that Mr. Hurst personally is responsible for advancing, or causing the plaintiff Sunsource to advance, the unmeritorious allegations of fraud and other misconduct on the part of the University and its personnel. I find that Mr. Hurst caused the court’s process to be the vehicle through which unfounded allegations of fraudulent and other egregious conduct were advanced against the University and some of its senior personnel. As such, I find that Mr. Hurst caused an abuse of the court’s process. It is the decisions made by Mr. Hurst and his conduct in directing Sunsource that has undermined the fair administration of justice.

[96] In other words, as the person directing and controlling the litigation decisions on behalf of the plaintiff Sunsource, Mr. Hurst caused unsubstantiated allegations of fraudulent and other egregious misconduct to be advanced against the University and its personnel. Consequently, the award of substantial indemnity costs that I have found to be payable by the plaintiff Sunsource is a direct result of the choices and decisions made by Mr. Hurst, as the sole person and controlling mind directing the litigation on behalf of Sunsource. In short, Sunsource’s decisions were Mr. Hurst’s decisions.

[97] In such circumstances, and on the evidence before me, I am satisfied that the instant case is one of those rare and exceptional instances where the court should sparingly exercise its discretion to make an award of costs against a non-party. On the material before me, it is clear to me that the non-party Mr. Hurst should bear some responsibility for payment of the cost award against Sunsource.

[98] That having been said, I have turned my mind to the appropriate amount that Mr. Hurst should personally bear or share in the payment of the defendant’s costs. Indeed, I have reflected on this difficult question at some considerable length. It has troubled me.

[99] To my mind, just because I have ordered that the corporate plaintiff must pay the institutional defendant the sum of $640,589.62 for its substantial indemnity costs of the action does not mean that it should automatically follow that Mr. Hurst, personally, should be liable for payment of that same amount.

[100] The purpose of the exceptional cost award I have made in this case is to bring home to the unsuccessful party the court’s expression of condemnation of that party’s conduct in the litigation. In other cases, there may well be other objectives.

[101] In my view, the amount of the cost award necessary to bring that message home to a corporate party is not necessarily the same amount that is required to bring home the court’s condemnation to a personal litigant or non-party.

[102] Moreover, I am guided by the Court of Appeal’s direction that a cost award against a non-party should be made only in sparingly and rare exceptional cases. That direction clearly signals restraint in making such cost awards.

[103] As such, I think it appropriate to consider what (minimal) amount is necessary to achieve the court’s objectives in making the award, and then to fashion an award that achieves the court’s objectives but goes no further.

[104] To be clear, I have no information as to the assets or financial position of either Sunsource or Mr. Hurst personally.

[105] But that said, I have considered what amount should be imposed on the non-party, Mr. Hurst, personally, in order to bring it home to him that, inter alia, the court process must not be abused, and the court’s limited resources must not be expended and wasted through the unnecessary trials of unmeritorious allegations of serious misconduct against public officials. The courtroom is not Mr. Hurst’s speculative playground.

[106] On balance, considering all of the relevant principles, including the primary direction of restraint in such awards, as well as all the material before me, I am satisfied that an award of $150,000 against Mr. Hurst personally will accomplish the court’s objective without any unnecessary overreach.

Conclusion

[107] Therefore, there shall be an order that Sunsource shall pay the University its substantial indemnity costs of the proceeding in the total amount of $640,589.62 within 30 days.

[108] Further, there shall be an order that Mr. Marlon Hurst is jointly and severally liable with Sunsource for payment of $150,000 of the said total $640,589.62 award to the University.

(Electronically signed and released) J. Paul R. Howard

Justice

Date: October 5, 2023

[^1]: Sunsource v. University of Windsor, 2022 ONSC 6047 (S.C.J.) [Trial Decision]. [^2]: See the University’s cost submissions dated November 17, 2022 (the “University’s Main Submissions”); Sunsource’s responding cost submissions dated December 5, 2022 (“Sunsource’s Responding Submissions”); and the University’s reply cost submissions dated December 8, 2022 (the “University’s Reply Submissions”). [^3]: Sunsource Grids Inc. v. University of Windsor, 2022 ONSC 7097 (S.C.J.). [^4]: Courts of Justice Act, R.S.O. 1990, c. C.43. [^5]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194. [^6]: Kerry (Canada) Inc. v. Ontario (Superintendent of Financial Services), 2009 SCC 39, [2009] 2 S.C.R. 678, 102 O.R. (3d) 319, at para. 126. See also Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303 (S.C.C.), at para. 27; Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, 140 O.R. (3d) 81, at para. 43.; and Fielding v. Fielding, 2015 ONCA 901, 129 O.R. (3d) 65, at para. 67. [^7]: Watterson v. Canadian EMU, 2018 ONSC 301 (Div. Ct.), at para. 8. [^8]: Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, at para. 8, citing Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330 (C.A.), at para. 22. See also 1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), 2006 35819 (ON CA), 82 O.R. (3d) 757 (C.A.), at para. 26. Five broad purposes were identified by Perell J. in Sheppard v. McKenzie, [2009] O.J. No. 3677, 2009 46175 (S.C.J.), at para. 17. [^9]: DUCA Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601 (S.C.J.), at para. 5. [^10]: Bondy-Rafael v. Potrebic, 2019 ONCA 1026, 441 D.L.R. (4th) 658, 47 C.P.C. (8th) 245, at para. 64. [^11]: Ibid., at para. 7. See also Kuzev v. Roha Sheet Metal Ltd., 2007 25656 (ON SCDC), 2007 CarswellOnt 4338, 227 O.A.C. 3 (Div. Ct.), at para. 6, citing Murano v. Bank of Montreal (1998), 1998 5633 (ON CA), 41 O.R. (3d) 222, 163 D.L.R. (4th) 21, 22 C.P.C. (4th) 235 (C.A.) [cited to O.R.], at p. 247 per Morden A.C.J.O., and Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495, 21 C.C.E.L. (3d) 161 (C.A.), at para. 4, and quoting Moon v. Sher, 2004 39005 (ON CA), [2004] O.J. No. 4651, 246 D.L.R. (4th) 440 (C.A.), at para. 30 per Borins J.A. [^12]: Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66, 312 D.L.R. (4th), at para. 52. [^13]: Boucher v. Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291, [2004] O.J. No. 2634 (C.A.), at para. 26. See also Bondy-Rafael v. Potrebic, at para. 53. [^14]: R & G Draper Farms (Keswick) Ltd. v. Nature’s Finest Produce Ltd., 2016 ONCA 626, 133 O.R. (3d) 395, at para. 23. [^15]: Bondy-Rafael v. Potrebic, at para. 64. [^16]: Net Connect Installation Inc. v. Mobile Zone Inc., 2017 ONCA 766, 140 O.R. (3d) 77, at para. 8 [Net Connect]. See also Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, 140 O.R. (3d) 81, at paras. 42-44 per Strathy C.J.O. [^17]: There is no evidence before me as to what payment arrangements existed between Sunsource and its counsel, whether contingency fee agreement or otherwise. [^18]: S & A Strasser Ltd. v. Richmond Hill (Town) (1990), 1990 6856 (ON CA) [Strasser], at p. 245 (cited to O.R.). See also Dermann v. Baker, 2019 ONCA 584, 436 D.L.R. (4th) 321, at para. 24; and Brownhall v. Canada (Ministry of National Defence) (2007), 2007 31749 (ON SCDC), 87 O.R. (3d) 130 (Div. Ct.), at para. 70. [^19]: Strasser, at p. 246. [^20]: Iannarella v. Corbett, 2015 ONCA 110, 124 O.R. (3d) 523, 65 C.P.C. (7th) 139, at para. 139. But see OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2021 ONCA 520 [OZ Merchandising], at para. 84. [^21]: 131843 Canada Inc. v. Double “R” (Toronto) Ltd., [1992] O.J. No. 3879, 7 C.P.C. (3d) 15 (Ct. J. (Gen. Div.)) [131843 Canada], at paras. 8-15. [^22]: Twaits v. Monk, 2000 14725 (ON CA), [2000] O.J. No. 1699, 8 C.P.C. (5th) 230 (C.A.), at para. 2 per curiam (Carthy, Rosenberg, O’Connor JJ.A.). “ [^23]: Pichelli v. Vuletic, 2019 ONSC 3178 (S.C.J.) [Pichelli], at paras. 22-25. [^24]: Ibid., at para. 32. I also note that with reference to the unreported decision of Jennings J. in Rasmussen v. H.R. Trucking Inc. that was quoted by LeMay J. in Pichelli, the judgment of Jennings J. awarding costs on a substantially indemnity basis was subsequently upheld by the Court of Appeal: see Rasmussen v. H.R. Trucking Inc., 2008 ONCA 540, at para. 6. [^25]: Trial Decision, at para. 16. [^26]: Ibid., at para. 767. [^27]: Ibid., at para. 1319. [^28]: Ibid., at para. 51. [^29]: Ibid., at para. 445. [^30]: Ibid., at para. 481. [^31]: Ibid., at para. 446. [^32]: Ibid., at para. 20. In the same vein, see also paras. 398, 817, and 846. [^33]: Ibid., at para. 25. [^34]: Ibid., at para. 72. [^35]: Ibid., at para. 73. In the same vein, see also para. 309. [^36]: Ibid., at para. 87. [^37]: Ibid., at para. 91. In the same vein, see also paras. 92 and 94. [^38]: Ibid., at para. 111. [^39]: Ibid., at para. 296. [^40]: Ibid., at para. 297. [^41]: Ibid., at para. 311. [^42]: Ibid., at para. 317. [^43]: Ibid., at para. 371(b). [^44]: Ibid., at para. 518. [^45]: Ibid., at para. 599. [^46]: Ibid., at para. 780. [^47]: Ibid., at para. 781. [^48]: Ibid., at para. 817. In the same vein, see also para. 818. [^49]: Ibid., at para. 385. [^50]: Ibid., at para. 447. [^51]: Ibid., at para. 769. [^52]: Ibid., at para. 1305. [^53]: Ibid., at para. 782. [^54]: Ibid., at para. 300. [^55]: Ibid., at para. 371(b). [^56]: Ibid., at para. 371(c). [^57]: Ibid., at para. 385. [^58]: Ibid., at para. 398. [^59]: Ibid. [^60]: Ibid., at para. 481(b). [^61]: Ibid., at para. 764. [^62]: Ibid., at para. 782. [^63]: Ibid., at para. 787. [^64]: Ibid., at para. 804. [^65]: Ibid., at para. 826. [^66]: Ibid., at para. 830. [^67]: Ibid., at para. 848. [^68]: Ibid., at para. 853. [^69]: Ibid., at para. 298. [^70]: Ibid., at para. 299. [^71]: Ibid., at para. 371(b). [^72]: Ibid., at para. 2. [^73]: University’s Main Submissions, at para. 12. [^74]: Frazer v. Haukioja, 2010 ONCA 249, 101 O.R. (3d) 528, at para. 73; Andersen v. St. Jude Medical Inc., 2006 85158 (ON SCDC), [2006] O.J. No. 508, 264 D.L.R. (4th) 557 (Div. Ct.), at paras. 24-27; Hague v. Liberty Mutual Insurance Co., 2005 13782 (ON SC), [2005] O.J. No. 1660, 13 C.P.C. (6th) 37 (S.C.J. per Nordheimer J. (as he then was)), at para. 16.; Morgan v. Morgan, 2017 ONSC 838, at para. 17; and Pichelli, at para. 34. [^75]: Sunsource’s Responding Submissions, at para. 11. [^76]: Marcos Building Design v. Lad, 2021 ONSC 4900, 75 C.P.C. (8th) 383 (Div. Ct.) [Marcos Building], at paras. 11‑12. [^77]: University’s Reply Submissions, at para. 4. I note that Sunsource’s Responding Submissions total 16 paragraphs in length. Of those 16 paragraphs, the first 12 paragraphs are devoted to the issue of whether costs should be awarded against Mr. Hurst personally. [^78]: Middlesex Condominium Corp. No. 232 v. Bodkin, sub nom. Middlesex Condominium Corp. No. 232 v. Middlesex Condominium Corp. No. 232 (Owners and Mortgagees of), 2014 ONSC 106 (Div. Ct.) [Middlesex Condominium]. I note that the 2014 decision of the Divisional Court in Middlesex Condominium was decided before the 2017 decision of the Court of Appeal in 1318847 Ontario, infra at fn. 82, as well as the 2021 decision of the Court of Appeal in OZ Merchandising. [^79]: Sunsource’s Responding Submissions, at para. 4, citing Middlesex Condominium, at para. 24. [^80]: See Sunsource’s Responding Submissions, at para. 6. [^81]: University’s Reply Submissions, at para. 2. [^82]: OZ Merchandising, at para. 89, quoting 1318847 Ontario Ltd. v. Laval Tool & Mould Ltd., 2017 ONCA 184, 134 O.R. (3d) 411 D.L.R. (4th) 340 [1318847 Ontario], at paras. 66 and 76 per Strathy C.J.O. See also Marcos Building, at para. 10. [^83]: OZ Merchandising Inc. v. Canadian Professional Soccer League, 2020 ONSC 119 (S.C.J.), at para. 53, affirmed 2017 ONCA 184. [^84]: See, for example, 1318847 Ontario, at para. 68; OZ Merchandising, at para. 89; and Marcos Building, at para. 10. [^85]: University’s Reply Submissions, at para. 3. [^86]: Ibid. [^87]: University’s Main Submissions, at para. 13; and University’s Reply Submissions, at para. 3. [^88]: University’s Main Submissions, at para. 13. [^89]: Trial Decision, at para. 488. [^90]: Ibid., at para. 512, p. 110. [^91]: Ibid., at para. 512, p. 112. [^92]: Ibid., at para. 512, p. 113. [^93]: Ibid., at para. 687. [^94]: Ibid., at para. 696. [^95]: Ibid., at para. 748. [^96]: Ibid., at para. 1012. [^97]: Ibid., at para. 1009. [^98]: See ibid., at para. 16(j). [^99]: Ibid, at para. 199. [^100]: Ibid., at para. 196. [^101]: Ibid., at para. 199. [^102]: Ibid., at para. 200. [^103]: See, for example, ibid., at paras. 318, 319, and 365. [^104]: Ibid., at paras. 318-319. [^105]: Ibid., at paras. 307-308. The restrained language of the trial judge on the latter emphasized passage will not be lost on anyone. [^106]: Ibid., at para. 370. See also paras. 371-372. [^107]: Ibid., at paras. 586-590. [^108]: Ibid., at para. 371. [^109]: Ibid., at paras. 309-311. [^110]: Ibid., at paras. 787-788.