Court File and Parties

COURT FILE NO.: CV-22-00000136-0000 DATE: 2023/10/30 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CASPAR FLORYAN, Plaintiff AND: SEEMA LUKE, HENRYK PIETRUS, KURT KIMPINSKI, KATHY KAYE, MARKO MRKOBRADA, JATINDER TAKHAR, ST JOSEPH’S HEALTH CARE LONDON, LONDON HEALTH SCIENCES CENTRE, THE UNIVERSITY OF WESTERN ONTARIO, NINA A. MCCURDY, M.W.K. PEIRCE, Defendants

BEFORE: Justice I.F. Leach

COUNSEL: The plaintiff self-representing Natasha O’Toole, for the defendant University of Western Ontario No other parties participating

HEARD: In writing

Endorsement Regarding Costs

(Rule 21 motion to strike brought by The University of Western Ontario)

Introduction

[1] On September 11, 2023, I released a substantive decision relating to a motion brought by the defendant University of Western Ontario, (“the university” or “UWO”), pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, seeking an order dismissing the self-represented plaintiff’s claim against it on the suggested ground that the pleaded claim failed to disclose a reasonable cause of action.

[2] This endorsement regarding costs should be read together with that earlier endorsement, now reported as Floryan v. Luke et al., 2023 ONSC 5108.[^1]

[3] For the reasons set forth in that earlier endorsement, I granted the relief sought by the university, and set a timetable for the delivery of written submissions regarding costs if the relevant parties were unable to reach an agreement in that regard.

[4] The relevant parties apparently were unable to reach an agreement in relation to costs, as I now have received the following written cost submissions:

a. initial cost submissions from the university dated September 21, 2023; b. responding cost submissions from Mr Floryan dated October 3, 2023; and c. reply cost submissions from the university dated October 6, 2023.[^2]

[5] Subject to the admissibility limitations noted hereafter, I now have reviewed and considered those filings in their entirety.

Preliminary concerns regarding the plaintiff’s cost submissions

[6] In my view, the responding written cost submissions tendered by Mr Floryan included reference to a number of matters raising concerns about propriety and admissibility.

[7] First, Mr Floryan spent a sizeable portion of those submissions arguing why my substantive decision was incorrect and amenable to being appealed. Such submissions were and are inappropriate at this point in the proceedings and suggest a fundamental misunderstanding on Mr Floryan’s part as to the scope of proper cost submissions in this context. In that regard:

a. A litigant unhappy with a court’s decision is entitled to his or her personal opinion. He or she also is perfectly entitled to pursue appellate review of that decision to the extent such a review is permitted by the provisions of the Courts of Justice Act, R.S.O. 1990, c.C.43, and the Rules of Civil Procedure. b. It nevertheless has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding and conclusive unless and until it is set aside on appeal or lawfully quashed. It is also well settled that such an order may not be attacked collaterally, with a “collateral attack” being described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment.[^3] c. For related reasons, it accordingly is not appropriate for a party to treat cost submissions as an opportunity to re-argue points on which that party failed to prevail during the relevant substantive hearing.[^4] d. In arriving at my determination of an appropriate cost award in the current context, I therefore notionally pay no regard to Mr Floryan’s submissions setting forth his views as to whether or not my relevant substantive decision was correct or amenable to appeal.

[8] Second, Mr Floryan also devoted a portion of his responding written cost submissions to arguing that Justice Garson improperly had ordered Mr Floryan to pay costs to the university in relation to its first Rule 21 motion herein; i.e., the university’s earlier Rule 21 motion -- which succeeded in striking the claim initially pleaded against the university by the plaintiff, albeit with the plaintiff then being granted leave to amend his pleading against the university. It was also argued by Mr Floryan that the university had made inappropriate submissions and claimed excessive costs in that regard. For reasons similar to those set forth in the preceding paragraph, those submissions by Mr Floryan also were inappropriate. In particular, Justice Garson’s earlier cost decision addressed such matters, and that decision also must be treated as binding and conclusive unless and until it is set aside on appeal or lawfully quashed. It accordingly was and is impermissible for Mr Floryan to launch a collateral attack on that order, or the submissions underlying it, in the current context. In arriving at my decision regarding costs, I therefore notionally pay no regard to those particular submissions either.

[9] Third, in support of an assertion that counsel for the university inappropriately “pressured” him to pay costs claimed by the university, Mr Floryan attached correspondence sent to him by the university’s counsel on September 22, 2023; correspondence indicating the university’s willingness to settle costs on the basis of Mr Floryan agreeing to pay, within 30 days, a sum significantly lower than the partial indemnity costs now being formally sought by the university. In doing so, Mr Floryan blatantly disregarded the fact that the letter was headed by the words “WITHOUT PREJUDICE”, (set forth not only in capitals but also in underlined bold print), which was accompanied by substantive content of the letter expressly indicating that: the proposal was an “offer to settle” put forth in “a good faith effort to compromise with respect to the cost issues”; that the correspondence and all of its contents were “entirely without prejudice”; and that the correspondence accordingly “should not be disclosed to the court in the context of cost submissions”. In such circumstances, Mr Floryan’s submissions in that regard, and his corresponding disclosure of the university’s offer to settle, also were entirely inappropriate. In that regard:

a. As I recently had occasion to observe in Baker v. Baker, 2023 ONSC 4082, at paragraph 20: i. It has long been recognized, as a public policy interest worth fostering by the courts, that parties be encouraged to resolve their private disputes without recourse to litigation or be encouraged after the commencement of formal proceedings to effect a compromise of their dispute or disputes without resorting to trial or other forms of court resolution of such disagreements. In furthering those objectives, the courts have protected, from disclosure, written and/or oral communications made with a view to reconciliation or settlement. In the absence of such protection, few parties would initiate or pursue settlement negotiations for fear that any concessions they might be prepared to make could be used to their detriment if no settlement agreement was forthcoming. That principle of exclusion, (applicable to such evidence even if it is otherwise relevant and probative), and a corresponding “without prejudice privilege” in relation to settlement negotiation and offers, have been recognized and enforced in Ontario for more than 150 years.[^5] ii. That principle of exclusion, and corresponding “without prejudice” privilege, apply whenever: 1. a litigious dispute exists or is within contemplation; 2. a communication is made with the express or implied intention that it would not be disclosed to the court in the event negotiations failed, with such intention being inferred when parties are clearly involved in negotiating a settlement or “buying peace”, in the absence of anything to suggest otherwise; and 3. the communication was made for the purpose of attempting to effect a settlement.[^6] b. In my view, the preconditions for application of that principle of exclusion clearly applied in relation to the settlement correspondence sent to Mr Floryan by the university’s counsel on September 22, 2023. Without limiting the generality of the foregoing: i. At the conclusion of my substantive endorsement, I expressly recognized that costs would be in issue upon release of my decision, and set a timetable for the tendering of written cost submissions if the parties were unable to reach an agreement in that regard.[^7] In such circumstances, the university’s subsequent efforts to arrive at a negotiated settlement of that cost issue, through the sending of its correspondence to Mr Floryan, can hardly be regarded as an improper attempt to “pressure” Mr Floryan into paying a portion of the university’s costs. In any event, a litigious dispute certainly existed or was contemplated in relation to the university’s desire that Mr Floryan pay a portion of its costs incurred in relation to this matter. ii. Nor can it reasonably be disputed that the university sent its letter to Mr Floryan with the intention that the correspondence would not be disclosed to the court in the event negotiations regarding the cost issue were unsuccessful. As noted above, the university’s letter not only indicated repeatedly that it was being sent on a “without prejudice” basis, but also included wording expressly indicating that it was not to be disclosed to the court in the context of cost submissions. Again, pursuant to the terms of my earlier endorsement, those submissions inherently would be made only if the parties were unable to reach an agreement in relation to costs; i.e., in the event negotiations in that regard failed. iii. The university’s letter also clearly indicates on its face that it was being sent in an effort to settle those issues relating to costs. c. In the circumstances, Mr Floryan had no obligation to accept the university’s settlement offer, but he also had no right to disclose that offer in the course of his written cost submissions, or advance submissions based upon the making of that offer. To the contrary, Mr Floryan had an obligation to respect the “without prejudice” nature of that settlement offer, and the correspondence through which it was communicated, unless and until the university chose to waive its privilege in that regard. d. I therefore also notionally pay no regard to the letter sent by the university to Mr Floryan on September 22, 2023, or to Mr Floryan’s submissions in that regard.

[10] With those caveats, I turn now to the remainder of the cost submissions I received, starting with an overview of the positions adopted by the university and Mr Floryan.

Overview of party positions

[11] In broad terms, the university says it should receive costs of its latest Rule 21 motion and of the action on a partial indemnity basis, fixed in the all-inclusive amount of $18,682.32, (i.e., an amount covering all of the university’s claims relating to fees, disbursements, and applicable taxes in that regard), to be made payable within 30 days.

[12] Considerations offered in support of the university’s position included the following:

a. It was said that the university was entirely successful in relation to the motion before me, (insofar as the plaintiff’s claims against the university were struck without the plaintiff being granted further leave to amend his pleading in that regard), and that costs of the motion, and the now terminated action against the university, accordingly should “follow the event” on a partial indemnity basis. b. The quantum of costs currently sought by the university was said to be reasonable, insofar as efforts were made to have the relevant work done primarily by a junior lawyer, the partial indemnity hourly rates set forth in the university’s Bill of Costs were still below the maximum rates suggested by the increasingly dated Notice to the Profession effective July 1, 2005, and the university’s current claim for costs purposely excludes any claim relating to the costs of the university’s earlier Rule 21 motion, which already have been addressed by Justice Garson. c. It was emphasized that, although the plaintiff had recovered nothing through his litigation against the university, he had sought its payment of $66.5 million; a suggested financial exposure of the university that was clearly significant and extraordinary. Moreover, the motion and action also were important to the university for other reasons, insofar as the plaintiff’s novel claim had other potentially wide-ranging risk implications for the university, as noted in my substantive decision. d. It was emphasized that the university has been put to additional expense by the plaintiff’s “improper and unnecessary” attempt to file evidence in relation to the Rule 21 motion before me, even though the plaintiff knew or ought to have known that such evidence was inadmissible. e. It was said that the plaintiff’s “bald allegations of impecuniosity” should not shield him from an adverse costs award, not only because the plaintiff has filed no evidence to support his claims regarding inability to pay any adverse cost award, but also because granting effective immunity from adverse cost awards would undermine other policy objectives underlying the cost rules; e.g., indemnification of successful litigants, encouragement of settlement, and the sanctioning of inappropriate behaviour.

[13] In similarly broad terms, the plaintiff Mr Floryan says the university should be awarded no costs whatsoever in relation to the Rule 21 motion I decided, or his now terminated claims against the university. Considerations he offers in support of his position in that regard, (apart from those I have disregarded for the reasons outlined above), include the following:

a. It was suggested that the university “took advantage of the plaintiff’s health difficulties” by moving to strike his claim against it “based on technicalities”, rather than discussing the claim on its merits. b. It was said that the costs claimed by the university were excessive or “inflated” for various reasons, including the following: i. It was emphasized that counsel for the university “specializes in the representation of universities”; i.e., with Mr Floryan suggesting implicitly, if not explicitly, that counsel for the university correspondingly should not have required much time to research or otherwise deal with this matter. ii. It was said that counsel for the university essentially “re-used” the same factum as that prepared in relation to the university’s original Rule 21 motion to strike Mr Floryan’s initial pleading against the university; i.e., such that the time claimed in relation to preparation for the university’s second Rule 21 motion was duplicative and therefore excessive. iii. It was said that the university inappropriately was claiming costs associated with Mr Floryan’s successful motion to amend his pleading so as to make Dr McCurdy and Dr Peirce additional defendants to the proceeding; a motion in respect of which the university expressly had indicated it was taking no position, provided no costs were sought from the university in that regard. iv. It was said that the university should receive no costs or disbursements associated with its counsel travelling to London for hearings or waiting to be heard. c. It was emphasized that, in attempting to file evidence in relation to the Rule 21 motion before me, Mr Floryan was guided by Justice Garson’s earlier endorsement and its repeated references to evidence; i.e., as to the suggested need for evidence to support Mr Floryan’s contemplated claim against the university, and/or the lack of evidence provided by Mr Floryan in that regard. In relation to such matters, it was said that Mr Floryan, as a self-representing lay litigant, “interpreted Justice Garson’s statements on evidence in the common English meaning of the term and proceeded accordingly. It also was suggested that, when the matter was before Justice Tranquilli on November 19, 2022, (for the scheduling of a special appointment hearing), she too had condoned Mr Floryan’s presentation of evidence. d. Perhaps most importantly, from Mr Floryan’s perspective, it was emphasized that no costs should be awarded against him for reasons associated with his impecuniosity. In that regard: i. It was said that Mr Floryan’s payment of any adverse cost award was “impossible” because his “negligent doctors ruined his health”, leaving him without assets, income or the ability to earn any income. ii. It was emphasized that the court already has waived payment of court fees by Mr Floryan, which I construe as a reference to the Fee Waiver Certificate arrangements available to certain litigants pursuant to the Administration of Justice Act, R.S.O. 1990, c.A.6, and O.Reg.2/05 dealing with “Fee Waiver”. In that regard, I note in particular that, pursuant to ss.4.2(1) and 4.2(4) of the former, and s.2(1)(a) of the latter, a person whose primary source of gross annual household income is income support under the Ontario Disability Support Program Act, 1997, S.O. 1997, c.25, may obtain, from the court clerk or registrar, a certificate excusing that person from paying any court fees that otherwise would be payable on or after the date of the certificate, which relate to the court proceeding described in the certificate. iii. It was said that courts “do not customarily order costs against parties who are unable to pay in tragic medical malpractice cases”, with a number of reported decisions being cited as examples. iv. It was said that the Supreme Court of Canada, in Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470, had endorsed the Canadian Judicial Council’s “Statement of Principles on Self-represented Litigants and Accused Persons”, thereby emphasizing that courts should not order costs against self-represented litigants for their “mistakes”, especially on motions to strike the pleadings of such litigants. v. It was said that support from the Ontario Disability Support Program (ODSP) represents Mr Floryan’s only source of income, and that such income is immune from garnishment, seizure and/or other forms of execution; i.e., such that there was little or no point to making any adverse cost awards against Mr Floryan.

Analysis

[14] By way of legislative provisions and general principles applicable to such cost determinations, I note the following:

a. Pursuant to section 131 of the Courts of Justice Act, R.S.O. 1990, c.C.43, (“the CJA”), as amended, and 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”. b. That confirmation of the court’s broad jurisdiction and discretion regarding costs is supplemented by the provisions of Rule 57.01(1) of the Rules of Civil Procedure, which lists a broad range of factors the court may consider when exercising its discretion to award costs pursuant to section 131 of the CJA. c. Our courts repeatedly have emphasized that cost awards must not be a simple mechanical or mathematical calculation; e.g., focused merely on details of time spent multiplied by hourly rates, or a tabulation of disbursements actually incurred. Rather, all cost claims are subject to the “overriding principle of reasonableness”, as applied to the factual matrix of the case, pursuant to the ultimate “cross check” required by such authorities as Boucher, Moon and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 75 O.R. (3d) 638 (C.A.), and Anderson v. St Jude Medical Inc. (2006), 264 D.L.R. (4th) 557 (Ont.Div.Ct.). d. The overall goal is to award costs in an amount that is “fair and reasonable for the unsuccessful party to pay in a particular proceeding”, rather than a sum tailored to an exact measure of the actual costs of a successful litigant.[^8]

[15] In arriving at a global determination of a cost award that is “fair and reasonable” in this particular case, having regard to all the circumstances, my considerations therefore include but are not limited to those outlined below.

PRINCIPLE OF INDEMNITY – RULE 57.01(1)(0.a)

[16] Rule 57.01(0.a) permits the court to consider, in exercising its cost discretion, “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”.

[17] As noted by the university, the basic or normative approach to awarding costs in Ontario is that costs follow the event, (premised upon a two-way or “loser pays” costs approach), with such costs usually being awarded on a partial indemnity basis payable forthwith; i.e., within 30 days. Of course, in the exercise of its discretion confirmed by section 131 of the CJA and informed by consideration of the factors listed in Rule 57.01(1) of the Rules of Civil Procedure, a court may depart from any one or more of those norms in a particular case. However, costs following the event, on a partial indemnity basis, and payable forthwith, is the norm.[^9]

[18] That typical approach or “general rule” accords with the paramount importance traditionally given to the principle of indemnification, whereby the word “costs”, when used in this context, “must carry the general connotation of being for the purpose of indemnification or compensation”.[^10]

[19] While costs more recently have come to be recognized as an important tool in the hands of the court to influence the way parties conduct themselves and prevent abuse of the court’s process, (e.g., with the purpose of cost awards being expanded to encourage settlement, deter frivolous actions and defences, and to discourage unnecessary steps that unduly prolong litigation), and as a means to facilitate access to justice, the principle of indemnity remains the paramount consideration -- albeit not the only consideration.[^11]

[20] In this case, I think the university fairly characterizes itself as being entirely successful in relation to its second Rule 21 motion, and the claims against it as a whole. Again, the university succeeded in having Mr Floryan’s amended claim against it struck in its entirety, without Mr Floryan being granted further leave to amend, thereby effectively terminating Mr Floryan’s action against the university without the university having to pay Mr Floryan anything by way of damages.

[21] In his cost submissions, Mr Floryan did not question or challenge the indicated lawyer experience and corresponding partial indemnity rates proposed by the university in its Bill of Costs, and I independently find that those suggested hourly rates to be entirely reasonable in the circumstances. Without limiting the generality of the foregoing:

a. As noted by the university in its cost submissions, work on this matter generally was assigned to and carried out by Ms O’Toole, who was called to the bar in 2017, albeit in circumstances where Ms O’Toole was working under the general supervision of Mr Pettingill, who was called to the bar in 1992. Such delegation of tasks to more junior counsel, able to do necessary legal work but at a lower hourly rate, is commendable because it benefits all concerned – including adverse parties from whom cost reimbursement is sought. It also accords with the general need for cost control and proportionality reflected in and emphasized by the Rules of Civil Procedure.[^12] b. As also noted by the university, the partial indemnity hourly rates employed in its Bill of Costs calculations are below those recommended in the “Cost Bulletin”, (formerly entitled "Information for the Profession"), issued by the Costs Subcommittee of the Rules Committee when the “Costs Grid” itself was being repealed in 2005. Although that bulletin has advisory status only, and may not have been updated since 2005, (despite its stated intention that the guidelines would be "reviewed periodically so that their currency can be maintained"), I accept that parties and courts still refer to the bulletin for guidance in determining appropriate hourly rates to be used for cost award determinations, despite the passage of intervening years.[^13] In my view, adherence to the rates suggested in the bulletin, despite the passage of 18 years since the bulletin was issued in its current form, underscores the reasonableness of the relevant partial indemnity rates employed by the university in its Bill of Costs calculations.

[22] As for the hours of time devoted by counsel for the university to its second Rule 21 motion, and to the action against it, (apart from those costs relating to its first Rule 21 motion, which already have been addressed by Justice Garson), I also am mindful of the general admonition, voiced by Justice Nordheimer (as he then was) in Basedo v. University Health Network, [2002] O.J. No. 597 (S.C.J.), but embraced by our Court of Appeal in Boucher v. Public Accountants Council (Ontario), supra, at paragraph 27, that “it is not the role of the court to second-guess the time spent by counsel unless it is manifestly unreasonable in the sense that the total time spent is clearly excessive or the matter has been overly lawyered”.

[23] In this particular instance, I nevertheless do think the time devoted to the matter by the university should have been tempered in certain respects, at least in relation to its claim for cost reimbursement from Mr Floryan. In particular:

a. I agree with Mr Floryan that it is not reasonable for the university to claim all of the legal expense it devoted to attending at the hearing of the plaintiff’s motion to amend his claim to add Dr McCurdy and Dr Peirce as additional defendants to the proceeding. Without limiting the generality of the foregoing: i. While that motion had implications for the claim Mr Floryan was advancing and/or intended to advance against the university, (i.e., because Dr McCurdy and Dr Peirce were postgraduate students of the university, in addition to being licenced physicians working at local hospitals), the implications for the university, such as they were, were crystallized in and by the relevant pleading amendments. It was not necessary for counsel for the university to attend and observe the entire process leading to the making of those amendments. The resulting amendments could just as easily have been considered and addressed after they were made. While the university was perfectly entitled to have its counsel attend the relevant hearing to maintain what was essentially a “watching brief” in that regard, in my view it is not reasonable to expect Mr Floryan to pay the costs of such an attendance. ii. As indicated in the correspondence filed by Mr Floryan, the university expressly indicated that it would take no position in relation to Mr Floryan’s motion in that regard, provided that Mr Floryan sought no costs against the university. In my view, it would not be fair for the university, having thereby effectively shielded itself from the possibility of any adverse costs in relation to that motion, to then seek its costs of that motion from Mr Floryan. b. I also agree with Mr Floryan that there clearly was a significant degree of figurative “recycling” of the written and oral submissions employed by counsel for the university in advancing its second Rule 21 motion; i.e., insofar as most if not all of the legal authorities, principles and arguments marshalled by the university’s counsel in relation to its second Rule 21 motion, (apart from those relating to the filing of evidence, addressed below), echoed those deployed in relation to its first Rule 21 motion. In my view, all of that was to be expected, having regard to the reality, (noted in my earlier substantive ruling), that Mr Floryan’s amended claim against the university effectively had ”repackaged”, in large measure, the claim originally pleaded against the university which was struck out by Justice Garson In the circumstances, I think the total amount of time devoted to preparation of the written and oral arguments prepared by university counsel to address its second Rule 21 motion, (apart from that addressing the evidentiary issue, and doing the wordsmithing necessary to adjust the relevant pleading references after Mr Floryan’s amendments to add Dr McCurdy and Dr Peirce as defendants), was excessive. c. In my view, the costs associated with counsel for the university attending the appearance before Justice Tranquilli, to schedule a special appointment hearing of the university’s second Rule 21 motion, also were excessive and unreasonable in the circumstances. In that regard: i. I am mindful of the reality that, because of the accommodations extended to Mr Floryan stemming from his indicated hypersensitivity to light, sound and electronics, all appearances in relation to this matter necessarily have been conducted in person; e.g., without any possible resort to virtual “Zoom” hearings in accordance with the court’s post-pandemic guidelines indicating the presumptive method in which various types of hearings are to be conducted, or even the possibility of remote participation via teleconference. ii. I also do not think this is a case where the university can or should be faulted or effectively penalized, in relation to its claim for an adverse cost award, for having retained counsel based outside of London, in turn necessitating a degree of time and travel expense -- although I also am not inclined to provide reimbursement for travel time at similar hourly rates. As noted by Mr Floryan, counsel retained by the university specializes in such matters, (i.e., claims made against universities), and I was not presented with any indication that such expertise was otherwise readily available to the university in the London area. iii. In relation to a hearing devoted to the simple scheduling of a special appointment hearing, without any intended substantive determinations being made, I nevertheless think counsel for the university could and should have employed a local agent to speak to the matter, which would have entailed significantly less expense. In saying that, I appreciate that the evidentiary issue was raised and spoken to during that hearing before Justice Tranquilli. However, Justice Tranquilli was not called upon to make any substantive ruling in that regard, and a well-instructed agent no doubt would have been able to make submissions in relation to that issue to the extent it was incidentally raised and discussed. d. Consistent with my comments in the preceding sub-paragraphs, I am not inclined to award the indicated disbursements associated with “travel costs” incurred by counsel for the university in relation to the London court attendances on November 18, 2022, and January 9, 2023. I regard the remaining claimed disbursements, (i.e., the filing fee for the university’s second Rule 21 motion and counsel attendance in London for the hearing on April 12, 2023), as reasonable. e. Finally, for the reasons outlined in more detail below, I am not inclined to award costs relating to the time associated with counsel for the university addressing Mr Floryan’s filing of evidence in relation to the university’s second Rule 21 motion. In that regard, I do not suggest that the time devoted to that aspect of the matter by the university was unnecessary, inappropriate or excessive. To the contrary, I think counsel for the university unquestionably had to address that issue in an effective manner and did so in a way not involving an excess of corresponding time and effort. However, as noted below, I think other supervening considerations make it inappropriate to make an adverse cost award in relation to that time.

REASONABLE EXPECTATIONS OF UNSUCCESSFUL PARTY – RULE 57.01(1)(0.b)

[24] Rule 57.01(0.b) permits the court to consider, in exercising its cost discretion, “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”.

[25] Apart from general indications that the plaintiff’s inability to retain counsel and his indicated health condition and restrictions made it extraordinarily challenging for him to advance his claim and respond to the university’s motion, (e.g., because it was necessary to have his eyes and ears covered at certain times, in turn obliging him to address the litigation personally with the assistance of family members who read and retyped his material many times, as he himself necessarily relied on his memory in that regard), I received no specific indication from Mr Floryan as to the number of hours he and his family members had devoted to the motion or the litigation against the university generally.

[26] Certainly, no competing Bill of Costs was submitted by Mr Floryan setting forth such information, or indicating the amount of costs he would have sought, (if only by way of a suggested “opportunity cost” hourly rate appropriate to a self-representing litigant), had he been successful in relation to the university’s second Rule 21 motion or his claim against the university.

[27] In the circumstances, I am left without any reliable indication of the cost expectations of Mr Floryan in that regard; i.e., as to what his cost expectations would have been prior to the substantive outcome of the second Rule 21 motion and termination of his action against the university.

[28] However, Mr Floryan obviously knew that the university had retained and was being represented by counsel, and reasonably must have known that the university, unlike Mr Floryan, accordingly was incurring associated legal expense in addressing Mr Floryan’s claim. Moreover, in my view, the costs now being sought by the university would not have been unexpected or have come as much of a surprise to a reasonably informed litigant in the position of Mr Floryan.

[29] In that regard, I note that this is not the first time Mr Floryan has been exposed to the dynamics of such cost determinations in the course of this litigation. In particular, costs of the university’s first Rule 21 motion against the university were addressed by Justice Garson in Floryan v. Luke, 2022 ONSC 5258. In that regard:

a. Justice Garson noted that the university had sought $13,277.94 in partial indemnity costs in relation to its earlier Rule 21 motion, (which had succeeded only in part, by striking Mr Floryan’s initially pleaded claim against the university, but with Mr Floryan being granted leave to amend), while Mr Floryan had sought no less than $52,810 in costs from the university based on his partial success in being granted leave to amend his pleading, despite the university having succeeded in striking his initial claim against the university in its entirety. b. For reasons set forth in his endorsement, but based principally on the novelty of the claim advanced in Mr Floryan’s pleading, divided success on the motion, Mr Floryan’s particular circumstances, (including his alleged impecuniosity), and “the need to permit access to justice for impecunious plaintiffs”, Justice Garson ordered the plaintiff to pay the university costs of its earlier Rule 21 motion fixed in the all-inclusive amount of $1,500.00, payable by Mr Floryan within 300 days. c. While expressly acknowledging that the resulting cost award was “a mere fraction” of the costs incurred and claimed by the university in relation to its earlier Rule 21 motion, and that Mr Floryan had been granted “an unusually lengthy time to pay costs”, Justice Garson also expressly emphasized that neither lenient aspect of his cost award was “intended to detract from [Justice Garson’s] earlier loud and clear message to the plaintiff to tread carefully moving forward”; e.g., Justice Garson’s comments indicating that he remained “highly skeptical” of Mr Floryan’s ability to succeed in his contemplated action against the university, that leave to amend Mr Floryan’s pleading against the university was “narrowly granted” and to be “sparingly exercised”, and urging Mr Floryan to seek legal advice and/or carefully and thoroughly research and review the matter before taking “next steps”.

AMOUNT CLAIMED AND RECOVERED – Rule 57.01(1)(a)

[30] Rule 57.01(1)(a) permits the court to consider “the amount claimed and the amount recovered in the proceeding”.

[31] As noted above and in my earlier substantive endorsement, the plaintiff Mr Floryan, through his initial and amended pleadings, claimed extraordinary sums in damages from the university, in addition to his further claims for corresponding interests and costs. In particular, Mr Floryan sought a judgment requiring the university to pay:

a. damages for his alleged substantial loss of past and future income, which Mr Floryan quantified in the amount of $31,402,199.36 USD; b. damages for his alleged substantial future care costs, which Mr Floryan quantified in the amount of $25,121,759.00 CDN; and c. general damages and damages pursuant to the Family Law Act, R.S.O. 1990, c.F.3, which Mr Floryan collectively quantified in the total amount of $2,220,000.00 CDN.

[32] In the result, Mr Floryan has recovered nothing whatsoever in damages from the university.

[33] The disparity between the plaintiff’s apparent expectations in relation to his claims against the university, and the realities of the case, is clearly enormous.

[34] Conversely, I think it difficult if not impossible to characterize the amount of legal expense devoted to the matter by the university as disproportionate to the sums in dispute.

APPORTIONMENT OF LIABILITY – RULE 57.01(1)(b)

[35] Rule 57.01(1)(b) permits the court to consider, in exercising its cost discretion, “the apportionment of liability”.

[36] Strictly speaking, I was not called upon to determine or apportion “liability” per se in the proceedings before me, although the effect of my decision was the imposition of zero liability on the university.

[37] More generally, I am mindful that, in exercising their discretion in relation to cost determinations, courts sometimes have regard to the broader question of whether success in relation to particular issues was divided; i.e., either through a broad interpretation of Rule 57.01(1)(b) that does not restrict the court’s focus to “liability” per se, or resort to the court’s broad discretion under s.131 of the Courts of Justice Act, supra.

[38] In my view, however, the situation before me does not involve any degree of divided success. The university prevailed in relation to every issue and sub-issue I was called upon to decide. In particular, in contrast to the outcome of the university’s first Rule 21 motion, the outcome of the Rule 21 motion I decided resulted in Mr Floryan’s amended claim against the university being struck out without any further leave to amend being granted.

COMPLEXITY OF PROCEEDING AND IMPORTANCE OF ISSUES – RULES 57.01(1)(c) AND RULES 57.01(1)(d)

[39] Rules 57.01(1)(c) and 57.01(1)(d) permit the court to consider, in exercising its cost discretion, “the complexity of the proceeding” and “the importance of the issues”.

[40] For present purposes, I accept that certain aspects of this litigation involved inherently complex matters, particularly insofar as the claim asserted by Mr Floryan against the university was novel, for the reasons outlined in my earlier substantive endorsement. Having to address such a novel claim against the university arguably justified its counsel’s devotion of more time and effort to the matter than might otherwise have been expected in relation to a more routine and less unprecedented matter.

[41] However, I also think it fair to say that, from the university’s perspective, the “novelty” of Mr Floryan’s claim had worn off to some degree by the time of the university’s second Rule 21 motion; i.e., insofar as Mr Floryan essentially had “repackaged” the novel claim originally pleaded against the university, when advancing his amended claim against it, such that counsel for the university in turn was able to figuratively recycle much of the earlier research, authority and arguments the university already had brought to bear in relation to its first Rule 21 motion.

[42] Moreover, novelty is somewhat of a two-edged sword when it comes to determinations regarding costs, as our courts also recognize that novelty of a dispute or issue sometimes may warrant a departure from the general practice of awarding partial indemnity costs to a successful party.[^14] In particular, in relation to novel cases, cost leniency towards an unsuccessful claimant is sometimes said to be justified because the claimant in such a case has been “proceeding along a path which is not encumbered by a precedent which would warn him not to proceed further”.[^15]

[43] Having said that, I think the justification for such leniency also had dissipated to some extent by the time of the university’s second Rule 21 motion; i.e., insofar as the “novelty” of Mr Floryan’s claim against the university also had or should have worn off to some degree from Mr Floryan’s perspective as well. In particular:

a. In his endorsement released on August 19, 2022, Justice Garson explained at some length why the novel claim Mr Floryan sought to advance against the university could not succeed; e.g., insofar as the pleaded circumstances fell “woefully short” of establishing the required prima facie duty of care owed by the university to Mr Floryan, (insofar as those circumstances were “not even close” to meeting the threshold for proximity), and the potential scope of the novel claim inherently and inevitably would lead to a “serious and significant risk of imposing liability in an indeterminate amount and across an indeterminate class”. As noted above, while granting the plaintiff Mr Floryan leave to amend his claim against the university, if he chose to do so, Justice Garson also expressly indicated that he remained “highly skeptical” of the plaintiff’s ability to plead a legally viable claim against the university and urged Mr Floryan to “seek legal advice” and/or “carefully and thoroughly research and review” the matter before the taking of any “next steps”. b. In short, as of August 19, 2022, the path being pursued by Mr Floryan in relation to his desired claim against the university had been “encumbered by a precedent” warning him not to proceed further. He nevertheless apparently chose not to heed that warning.

[44] As for the importance of the issues raised by the proceeding:

a. I accept that Mr Floryan’s claim against the university clearly had subjective importance to him -- although it seems difficult to imagine how any liability against the university could have succeeded (even on Mr Floryan’s theory of the case) without his establishing liability against co-defendant doctors, through whom Mr Floryan may have an alternative means of recovering damages in any event. b. I accept that Mr Floryan’s claim against the university had extraordinary importance from the university’s perspective; i.e., given its alleged monetary exposure and the potentially wide-ranging risk implications for the university in many other cases as well. c. For related reasons, (i.e., the potential implications of recognizing the novel claim advanced by Mr Floryan, not only in relation to the University of Western Ontario, but to other institutions of higher education having faculty members and postgraduate students engaged in other pursuits), I accept that the issues raised by this case also raised matters of broader significance transcending the immediate interests of the parties. d. In my view, the importance of the proceeding, in all of the dimensions outlined above, lends support to a view that it warranted more time, care and attention by the university’s counsel than other disputes.

CONDUCT AND/OR STEPS THAT LENGTHENED THE PROCEEDING OR WHICH OTHERWISE DESERVES CONDEMNATION – RULES 57.01(1)(e) AND 57.01(1)(f)

[45] Rule 57.01(1)(e) permits the court to consider, in exercising its cost discretion, “the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding”.

[46] Rule 57.01(1)(f) permits the court to consider whether any step in the proceeding was “improper, vexatious or unnecessary”, or “taken through negligence, mistake or excessive caution”.

[47] The only consideration raised and addressed in that regard, in the written cost submissions tendered by the university and Mr Floryan, focused on Mr Floryan’s attempt to have the court consider evidence in relation to the university’s second Rule 21 motion to strike his amended claim against the university.

[48] For the reasons set forth at length in my earlier endorsement, (at paragraphs 10 through 23), that attempt was improper, and unnecessarily lengthened the duration of the proceeding.

[49] Without limiting the following, Mr Floryan’s filing of evidence in that regard, and implicit if not express request for the court to consider that evidence in deciding a motion brought pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, triggered the university’s need to prepare and file unusually lengthy material in reply, significantly extended the duration of the party’s oral submissions, and expanded the number of issues I was called upon to address in my substantive decision. The additional costs incurred by the university in that regard form a notable component of the costs it now seeks from Mr Floryan.

[50] I normally would have had little hesitation in making a cost award holding a party responsible for time and expense effectively wasted by such an improper attempt to file substantial evidence in relation to a motion brought pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure; i.e., having regard to the clear prohibition against the filing of such evidence set forth in Rule 21.01(2)(b), and the extensive authority from courts at first instance and our appellate courts uniformly emphasizing the importance of abiding by that prohibition.

[51] Having carefully considered and reflected on the matter, I nevertheless am of the view that Mr Floryan should not be held responsible for payment of such costs in the particular circumstances of this case. In that regard:

a. As noted above, Mr Floryan emphasized in his cost submissions that his decision to file evidence in relation to the university’s second Rule 21 motion was guided by statements made by Justice Garson during the course of his endorsement released on August 19, 2022; statements which were said to have been echoed and reinforced by other statements made by Justice Tranquilli during the hearing held on November 18, 2022, to schedule a special appointment hearing in relation to the university’s second motion brought pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure. b. I do not accept that Justice Tranquilli, during the scheduling hearing on November 18, 2022, in any way misdirected Mr Floryan as to the permissibility of filing evidence in relation to such a motion. At that scheduling hearing, Justice Tranquilli was informed that the parties participating in the university’s second Rule 21 motion had agreed on a timetable to ready the motion for a special appointment hearing, “subject to the issue of the plaintiff’s intention to file evidence at the hearing of the motion”. While formally reserving any decision in that regard to the judge hearing the motion on its merits, Justice Tranquilli, as indicated in the following passage from her endorsement, made it quite clear to Mr Floryan that his stated intention to file evidence on such a motion ran contrary to the established law in this area: The court advised the plaintiff that on a motion under rule 21.01(1)(b), the rules of civil procedure preclude the review of evidence and the rule does not permit the motion judge to consider such evidence. The court’s inquiry is limited to the pleadings and any documents that may be incorporated in the pleadings by reference to those documents. c. However, I do think there is a basis for Mr Floryan’s assertions that his efforts to file evidence in relation to the second Rule 21 motion were guided by the repeated references in Justice Garson’s earlier endorsement to “evidence”, and corresponding suggestions that Mr Floryan’s previously pleaded claim against the university was struck out owing to Mr Floryan’s failure to file adequate supporting evidence in that regard. Examples of such comments were noted in paragraph 16 of my earlier endorsement, but for ease of reference included the following: i. At paragraph 22 of Justice Garson’s endorsement, it was said that “I reject this argument as no evidence is before me that any of the visits, consults, tests or diagnosis were done by the defendant doctors in their role as clinical faculty members”. [Emphasis added.] ii. At paragraph 26 of Justice Garson’s endorsement, it was said that “The Plaintiff falsely and without evidence tries to connect UWO’s supervisory role of its own faculty to that of a duty of care owed to these doctors’ patients who are seen through the doctors’ capacity as private licenced physicians, with privileges at local hospitals or private offices”. [Emphasis added.] iii. At paragraph 33 of Justice Garson’s endorsement, it was said that “There is no evidence of a close or direct relationship between the parties. At best, there is evidence of an affiliation which falls far short of establishing that the medical care provided by the doctors to the plaintiff was done within the reasonable scope of the doctors’ affiliation and employment with UWO”. [Emphasis added.] iv. At paragraph 34 of Justice Garson’s endorsement, it was said that “The plaintiff brought forward no evidence that UWO made any representations to him, nor that the plaintiff relied on any such representations or had any expectations of UWO with respect to his medical care. There was no evidence of statutory obligations owed by UWO to the plaintiff, and no evidence that the three doctors’ alleged negligence arose in the context of their roles as faculty or instructors at UWO.” [Emphasis added.] d. For the reasons set forth in paragraphs 18-19 of my earlier endorsement, I explained why such references to the absence of evidence, despite their literal wording, should be read in context as intended references to Mr Floryan’s failure to plead and rely upon any material facts referring to the matters Justice Garson then identified in his endorsement. However, I also acknowledge that such distinctions may very well have been lost on a self-representing lay person in the position of Mr Floryan. In that regard, (and as noted above), Mr Floryan has emphasized in his costs submissions: i. that he is “a self-represented litigant and interpreted Justice Garson’s statements on evidence in the common English meaning of the term”; and ii. that “Justice Garson’s endorsement and repeated references to evidence guided the plaintiff in his work on amendments”. e. In these particular and unusual circumstances, I think it would be unfair for the court to order Mr Floryan’s payment of costs flowing from his tendering of evidence in relation to the university’s second Rule 21 motion; i.e., when it seems reasonably clear that his doing so was prompted by repeated comments from the court suggesting, (on their face at least), that the filing of evidence in relation to such a motion was not only appropriate but necessary if Mr Floryan was to have any hope of maintaining his desired claim against the university.

REFUSAL TO MAKE APPROPRIATE ADMISSIONS AND THE COST OF SEPARATE PROCEEDINGS – RULES 57.01(1)(g) AND 57.01(1)(h)

[52] Rule 57.01(1)(g) permits the court to consider, in exercising its cost discretion, “a party’s denial of or refusal to admit anything that should have been admitted”.

[53] Rule 57.01(1)(h) permits the court to consider, in exercising its cost discretion, “whether it is appropriate to award any costs or more than one set of costs where a party … commenced separate proceedings for claims that should have been made in one proceeding, or … in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer”.

[54] Neither the university nor Mr Floryan suggested that either factor was a relevant consideration in the determination of an appropriate cost award in this case.

[55] Nor do I independently think either factor has any relevance here.

UNREASONABLE OBJECTION TO PROCEEDING BY TELEPHONE OR VIDEO CONFERENCE – RULE 57.01(1)(h.1)

[56] Rule 57.01(1)(h.1) permits the court to consider, in exercising its cost discretion, “whether a party unreasonably objected to proceeding by telephone conference or video conference under rule 1.08”.

[57] Neither side suggested this was a relevant factor or consideration in the determination of an appropriate cost award in this case, but for the sake of completeness, I note my independent agreement with the apparent position of the parties in that regard.

[58] In particular, although scheduling and substantive hearings in relation to this matter have been conducted in person and with significant additional accommodations described in paragraphs 6-9 of the endorsement released by Justice Garson on August 19, 2022, (despite the court’s current standard practice for hearing motions of this nature in civil proceedings virtually), that has stemmed form the court extending such accommodations to Mr Floryan in an effort to address his indicated health concerns; concerns which include complications and difficulties associated with his being exposed to light, sound and electronics.

[59] While those accommodations inevitably may have entailed some additional time and expense for all concerned in the conduct of hearings relating to this litigation, (i.e., in the nature of that incurred by all concerned when the court conducted most hearings in person prior to the advent of virtual hearings brought about by the COVID-19 pandemic), in my view that should not be viewed as having resulted from any “unreasonable objection” to telephone or video conferences on the part of Mr Floryan, having regard to the disabilities and resulting challenges alleged in his pleadings.

ANY OTHER MATTER RELEVANT TO COSTS – RULE 57.01(1)(i)

[60] Rule 57.01(1)(i) permits the court to consider, in exercising its cost discretion, “any other matter relevant to the question of costs”.

[61] Matters frequently addressed under this heading include the making of relevant settlement offers. In this case, however, the only settlement offer to which I was referred was the one communicated by the university to the plaintiff Mr Floryan in the university’s letter dated September 22, 2023. I already have explained why I notionally will pay no further regard to that settlement offer in arriving at my cost decision herein.

[62] The only “other” matter of suggested relevance to costs, addressed in the parties’ cost submissions, concerned the professed impecuniosity of Mr Floryan.

[63] In that regard:

a. The authorities establish that, as a general rule, impecuniosity generally should not and does not eliminate or reduce a party’s liability for costs, as such an approach generally would infuse the process with considerable uncertainty and eliminate an important “reality check” on the manner in which even impoverished litigants pursue litigation. However, if established, impecuniosity may be one of the factors a court has the residual ability to consider, in extraordinary cases, in the exercise of its general cost discretion.[^16] b. Having said that, as our Divisional Court has emphasized, while the inability of a party to pay costs may be a relevant factor in determining whether an adverse costs award should be made, such cases “will be few and far between, and generally require evidence not only that a party against whom costs would otherwise be awarded does not currently possess the financial wherewithal to pay an award of costs, but that it is mot unlikely that they will ever acquire the ability to meet a costs burden arising from the case”.[^17] Without limiting the generality of the foregoing, bald statements of impecuniosity or limited sources of income fall short of meeting that evidentiary requirement.[^18]

[64] Applying such principles to this case, while also addressing the impecuniosity arguments raised by Mr Floryan:

a. While Mr Floryan clearly regards the existence, nature, permanency, and cause of the disability described in his pleading as fundamental realities he must live with on a daily basis, it must be noted and recognized that such matters have yet to be formally established in the context of this litigation. Such matters have not been the subject of any formal admissions. Nor have they been the subject of any properly introduced evidence, let alone accepted by a trier as proven realities. The current context accordingly is significantly different from the medical practice cost decisions cited by Mr Floryan, wherein courts at first instance and on appeal were considering the appropriate exercise of their discretion in relation to costs following the conclusion of extended proceedings at trial and on appeal confirming the specific tragic circumstances of the unsuccessful claimants in those particular cases. In any event, such idiosyncratic cost determinations cannot be elevated to the status of a universally applied custom, as suggested by Mr Floryan. b. As noted, and emphasized by counsel for the university, in the current context, I effectively am obliged to make a cost determination in circumstances where there simply is no evidence before me to support what accordingly are simply bald assertions about Mr Floryan’s lack of assets, limited sources of income, and/or inability to acquire such assets or earn such income in the future. c. Moreover, even if Mr Floryan’s assertions of current impecuniosity are accurate, he himself effectively asserts, via his pleadings, that will not always be the case. In particular, he contends and clearly expects that this litigation eventually will result in his recovery of many millions of dollars from the remaining defendants. In that regard: i. While Mr Floryan emphasizes that the ODSP income he is said to receive currently is exempt from garnishment, seizure and/or other forms of execution, such arguments inappropriately confuse and conflate issues of entitlement and enforcement; matters which our law, (as reflected in the Rules of Civil Procedure), regards as separate and distinct. Our courts routinely make orders declaring and/or confirming that particular litigants are entitled to costs from their litigation adversaries, without regard to whether, when and how such cost awards may be enforced. ii. Without limiting the generality of the foregoing, our law generally enables a litigant with a formally established entitlement to the payment of costs, (e.g., an order directing the payment of a specified sum of money to that litigant), to pursue formal execution of that order indefinitely; e.g., by issuing an appropriate writ of seizure and sale that will remain in force for an initial period of six years, and during further successive six year periods each time that writ is renewed without lapse by a diligent and persevering litigant.[^19] In short, barring intervening events such as the bankruptcy of a litigant ordered to pay costs, that litigant’s current impecuniosity does not necessarily foreclose the possibility of ultimate recovery in relation to any such cost award. d. The provisions of the Administration of Justice Act, supra, and the provisions of Ontario Regulation 2/05 enacted thereunder, may exempt a litigant granted a Certificate thereunder from the payment of fees that otherwise would be owed to the court in the course of litigation. However, nothing therein exempts a litigant from sums a litigant may be ordered to pay a litigation adversary pursuant to an exercise of the court’s discretion regarding costs. e. Nor does anything in the “Statement of Principles on Self-Represented Litigants and Accused Persons” adopted by the Canadian Judicial Council, in September of 2006, fetter the court’s discretion in relation to costs. In that regard: i. Such a statement of principle, even when adopted by the Canadian Judicial Council, inherently has no ability to provide any form of directive overriding the legislated provisions set forth in section 131 of the CJA, and/or Rule 57.01 of the Rules of Civil Procedure. Nor does the Statement purport to issue any such directive. To the contrary, the preamble to the Statement indicates that it is provided for “the guidance” of those to whom it is directed, including judges and courts. ii. The aforesaid “Statement of Principles on Self-Represented Litigants and Accused Persons” actually contains no provisions whatsoever expressly addressing the court’s exercise of discretion in relation to the making of cost awards, let alone any purported direction or suggestion that courts should never order the payment of costs by self-represented litigants. Indeed, the only express reference to “costs” therein is found under the heading “For Court Administrators”, where sub-paragraph 2(b) of that part of the Statement indicates that “court administrators should be given sufficient resources to be able to … provide, on request, access to or a recitation of relevant common, routinely employed rules, court procedures, and fees and costs”. While the Statement reminds judges and courts of their general responsibility to promote opportunities for all persons to meaningfully present their case, and the importance of facilitating access to justice for self-represented persons, (which leniency in relation to costs may promote), such reminders and exhortations fall far short of extending the sort of immunity from adverse cost awards for self-represented litigants which Mr Floryan seems to suggest. In that regard: 1. It should be noted that the Preamble to the Statement emphasizes that judges and courts, among others, have a responsibility to ensure that self-represented persons are provided with “fair access” and “equal treatment” by the court. Such concepts do not entail unlimited or consequence-free access to our courts by self-representing litigants. Nor do they entail unequal treatment of litigants, whereby those who are represented face the prospect of adverse cost awards while self-represented litigants do not. 2. It should also be noted that paragraph 4 of the “Commentary” to Part B of the Statement, speaking to the promotion of “Equal Justice”, expressly makes it clear that “Self-Represented persons, like all other litigants, are subject to the provisions whereby courts maintain control of their proceedings and procedures”. As noted above, cost awards represent a major tool in the ability of courts to control court proceedings and the behaviour of litigants. iii. Similarly, although Mr Floryan suggested that “a self-represented litigant should not be penalized with costs on a motion to strike”, as that would be “in accordance with” the Supreme Court of Canada’s decision in Pintea v. Johns, supra, a review of that relatively brief (five paragraph) decision makes it clear that it actually contains no statement to that effect, nor anything akin to such a pronouncement. In particular: 1. In that case, a case management judge found a self-represented litigant in contempt for failing to attend case management meetings, in circumstances where the judge had failed to consider whether the self-representing litigant had actual knowledge of orders upon which the finding of contempt had been made, let alone whether such actual knowledge had been proven beyond a reasonable doubt; i.e., one of the essential elements or prerequisites that must be established prior to any finding of contempt in relation to a court order. In the circumstances, the Supreme Court of Canada held that the finding of contempt could not stand. 2. Writing on behalf of the court, Justice Karakatsanis then included the following sentence in the court’s decision: “We would add that we endorse the Statement of Self-Represented Principles on Self-represented Litigants and Accused Persons (2006) established by the Canadian Judicial Council”. Read in context, the reference is entirely understandable; e.g., insofar as the self-represented litigant in that case effectively was denied an opportunity to understand and meaningfully participate in the proceedings, and/or information about the potential consequences and responsibilities of proceeding without a lawyer, leading to his being subjected to one of the court’s most severe forms of chastisement. The Statement speaks to such matters. 3. There is no indication that the subject of costs was before the Supreme Court of Canada in that case and, as noted above, the Statement itself does not contain any provisions expressly addressing exercise of the court’s discretion in relation to costs. At most, the Statement speaks to such matters only obliquely; e.g., insofar as promoting access to justice by self-represented litigants may, in appropriate circumstances, be a factor favouring a more lenient approach to cost awards in relation to such litigants. Again, this falls far short of any general approach whereby a self-represented litigant should never be “penalized with costs” where that litigant is the unsuccessful party on a Rule 21 motion to strike that litigant’s pleading. f. In my view, effective immunity from adverse cost awards, which Mr Floryan believes he has or should have, would have very desirable consequences and implications – both generally and in the circumstances of this particular case. Without limiting the generality of the foregoing: i. While promoting access to justice by self-represented and/or impecunious litigants is clearly a laudable goal, it does not exist in a vacuum or demand absolute priority. To the contrary, as noted above, appellate authority has recognized and emphasized that the ability to award costs is an important tool in the hands of the court to influence the way parties conduct themselves, prevent abuse of the court’s process, encourage settlement, deter frivolous claims and defences, and discourage the taking of unnecessary steps that unduly prolong litigation. Such countervailing concerns are all the more pressing in an environment of limited judicial resources, already strained to the breaking point as our court continues to struggle with challenges that existed before the pandemic, and which have been exacerbated in the wake of the pandemic. ii. A self-represented and/or impecunious litigant intensely focused on pursuit of litigation, with apparently few other demands on his or her time, and no effective incentive to refrain from adopting and/or obstinately pursuing unreasonable litigation positions if essentially granted immunity or near immunity from any adverse cost awards, clearly has the potential to tie up significant amounts of limited court resources that are needed elsewhere. Such a litigant clearly would have little or no incentive to exercise reflection, moderation, and self-restraint, even in the face of judicial exhortations to do so. iii. That phenomenon seems demonstrated by the litigation history to date in this particular case; e.g., where Mr Floryan doggedly moved forward with an amended claim against the university in fairly short order, (i.e., after Justice Garson’s substantive decision released on August 19, 2022, and cost decision released on September 15, 2022), notwithstanding Justice Garson’s express skepticism as to whether a sustainable claim in that regard could ever be pleaded, express emphasis that leave to amend was being granted with considerable hesitation, express urging that Mr Floryan seek legal advice and/or carefully and thoroughly research the matter before taking further steps in the litigation, and repeated his intended “loud and clear message to the plaintiff to tread carefully moving forward” when making an initial cost award against Mr Floryan. To the extent such a message was sent, it apparently was not loud enough and/or clear enough. iv. The sending of a similar but more forceful message seems both necessary and appropriate in the current context. In particular: 1. As noted above, Mr Floryan has engaged in further inappropriate litigation conduct in the course of this cost exercise; e.g., by attempting to revisit and reargue matters I decided, by attempting to revisit and reargue matters Justice Garson decided, and by deliberately referring to without prejudice settlement communications. 2. While Mr Floryan’s desired claim against the university apparently has come to an end, the remaining aspects of this litigation seem to be in their very early stages; i.e., insofar as Mr Floyran’s claims against the remaining defendants do not yet seem to have advanced beyond the pleadings stage. Given the number of parties involved, and the extraordinary amount of damages being claimed from the remaining defendants, an early resolution of the remaining claims seems most unlikely. In my view, all concerned — including Mr Floryan — should understand that they face the realistic prospect of adverse cost awards intended to encourage cooperation and compromise, (if not overall settlement), and to discourage the adoption of unreasonable interlocutory positions and/or the taking of ill-advised interlocutory steps that needlessly hamper the progress of the litigation towards a proper conclusion.

Conclusion

[65] It has been said many times, and in many ways, that discretionary cost determinations are far from an exact science.

[66] Again, the overall goal is to award costs in an amount that is fair and reasonable in a particular proceeding, having examined various factors such as those outlined in Rule 57.01(1) of the Rules of Civil Procedure.

[67] Having regard to all the circumstances of this particular case, including the various countervailing considerations explored in detail above, I think justice will be served if my discretion is exercised so as to award the university costs of the Rule 21 motion I decided, and of Mr Floryan’s action against the university, fixed in the all-inclusive amount of $7,000.00, payable by Mr Floryan to the university within 180 days.

[68] An order shall go accordingly.

Justice I.F. Leach Date: October 30, 2023

Footnotes

[^1]: See also Floryan v. Luke et al., 2023 CarswellOnt 14000. [^2]: I note in passing that Mr Floryan’s written cost submissions complied with my directions setting page limits, on those written cost submissions, through the use of pages having 8½” x 14” dimensions. Since the rendering of my substantive endorsement, I have been advised indirectly that Acting Regional Senior Justice Grace has directed, pursuant to Rule 37.15 of the Rules of Civil Procedure, that all further motions in relation to this litigation be heard by me. In the circumstances, I note that, moving forward, parties should regard my setting of page limits, in relation to any written submissions, as a reference to pages having 8½” x. 11” dimensions. [^3]: See Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at paragraph 33. [^4]: See, for example, Witt v. Witt, 2019 ONSC 3732, at paragraph 17. [^5]: See John Sopinka et al., The Law of Evidence in Canada, 2d ed. (Toronto and Vancouver: Butterworths, 1999), at paragraphs 14.201, 14.203 to 14.206, and the authorities cited therein. [^6]: Ibid., at paragraphs 14.207 to 14.215. See also Re Hollinger Inc., 2011 ONCA 579, at paragraph 16. [^7]: See Floryan v. Luke et al., supra, at paragraph 62. [^8]: See Zesta Engineering Ltd. v. Cloutier, [2002] O.J. No. 4495 (C.A.), at paragraph 4; and Boucher v. Public Accountants Council for the Province of Ontario, [2004] O.J. No. 2634 (C.A.), at paragraph 26. [^9]: See Foulis v. Robinson (1978), 21 O.R. (2d) 769 (C.A.), at p.776; Joncas v. Spruce Falls Power & Paper Co., [2001] O.J. No. 1939 (C.A.), at paragraph 1; Norton v. Kerrigan, [2004] O.T.C. 559 (S.C.J.), at paragraphs 15-16; Elbakhiet v. Palmer, 2012 ONSC 2529, [2012] O.J. No. 2890 (S.C.J.), at paragraph 30.1; and Skorski v. Paderewski Society Home (Niagara), 2018 ONSC 3553 (Div.Ct.), at paragraphs 8-9. [^10]: See Bell Canada v. Consumers Association of Canada, [1986] 1 S.C.R. 190, at p.207. [^11]: See 1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), 275 D.L.R. (4th) 321 (Ont.C.A.), at paragraphs 26 and 45; LeVan v. LeVan (2006), 82 O.R. (3d) 1 (S.C.J.), affirmed 2008 ONCA 388, 90 O.R. (3d) 1 (C.A.), leave to appeal to S.C.C. refused [2008] 3 S.C.R. viii; and Mark M. Orkin and Robert G. Schipper, The Law of Costs, 2nd ed. (Toronto: Canada Law Book Thomson Reuters, 1987 but continuously updated), Vol.1 at p.2-11 to p.2-12. [^12]: See, for example, Rule 1.04(1), the provisions of which include a direction to construe the rules, (and therefore Rule 57.01 as well), in a manner that will promote securing “the least expensive” determination of a civil proceeding on its merits, and Rule 1.04(1.1), which obliges the court to apply the rules and make orders, (including those relating to cost awards), in a manner “proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding”. [^13]: See, for example, Wright v. Wal-Mart Canada Corp, 2010 ONSC 2936, [2010] O.J. No. 2206 (S.C.J.), at paragraphs 127-128, and Livent Inc. v. Deloitte & Touche, 2011 ONSC 648 (Master), at paragraphs 111-112. [^14]: Again, see Joncas v. Spruce Falls Power & Paper Co., supra, at paragraph 1. As noted above, Justice Garson also relied on such considerations in arriving at his earlier cost decision in this matter. [^15]: See Metropolitian Toronto Civil Employees’ Union v. Toronto (Metropolitan) (1988), 65 O.R. (2d) 47 (Div.Ct.), at page 62. [^16]: See, for example, Agius v. Home Depot Holdings Inc., 2011 ONSC 5272, [2011] O.J. No. 4424 (S.C.J.), and the additional cases examined and cited therein. See also Boucher v. Public Accountants Council for the Province of Ontario, et al., supra, at paragraph 37; Guelph (City) v. Wellington-Dufferin-Guelph, 2011 ONSC 7523, at paragraph 14; and Barber v. Goerz, 2021 ONSC. [^17]: See Nassab (Litigation guardian of) v. Erinoakkids, 2017 ONSC 2740 (Div.Ct.), at paragraph 35. [^18]: Ibid. [^19]: See Rule 60.07(6) of the Rules of Civil Procedure.