Court File and Parties

Court File No.: CV-21-00674203-0000 Date: 2023-03-23 Superior Court of Justice - Ontario

Re: Shane O’Herlihy And: Facebook, Inc., Facebook Canada, Ltd. and Meta Platforms, Inc.

Before: Justice Chalmers

Counsel: S. O’Herlihy, Self-Represented I. Aversa, M. Spence, and J. Suttner for the Defendants

Heard: In writing

COSTS ENDORSEMENT

Overview

[1] By endorsement dated February 27, 2023, I allowed the Defendants’ motion, in part. I struck the Plaintiff’s Statement of Claim in its entirety, but with leave to amend. I found that the Defendants were primarily successful on the motion and were presumptively entitled to their costs. The parties were directed to provide their written cost submissions. The Defendants’ cost submissions were received March 14, 2023. The Plaintiff’s cost submissions were received on March 20, 2023.

[2] The Defendants seek $9,195.44 in partial indemnity costs up to the date of the offer to settle and $32,464.17 in substantial indemnity costs from the date of the offer and $320 in disbursements. The total amount sought is $41,979.61.

[3] The Plaintiff argues that costs should not be awarded to the Defendants. It is his position that the Defendants were only partially successful on the motion because leave to amend the claim was granted. The Plaintiff seeks his own costs of the motion in the amount of $10,000. He argues that the Defendants’ conduct in filing the claims brought by him against other tech companies and government entities was improper and unnecessarily lengthened the proceeding.

[4] For the reasons set out below, I award costs of the motion to the Defendants, fixed in the amount of $15,000, inclusive of counsel fee, disbursements and H.S.T. The costs are payable within 60 days of the date of this endorsement.

Analysis and Discussion

Entitlement to Costs

[5] As a general rule, a successful party has a reasonable expectation that his or her costs will be paid by the unsuccessful party: B.R. v. Childrens Aid Society of Metropolitan Toronto, 1995 CanLII 115 (SCC), [1995] 1 S.C.R. 315 at pp. 404-5.

[6] Here, the Defendants were successful in having the Claim struck in its entitrety. The Plaintiff argues that success was mixed because although the Claim was struck, he was granted leave to amend.

[7] I am of the view that success was not divided. The Claim consisted of 336 paragraphs and 46 pages. The Defendants argued that the Claim included improperly pleaded, irrelevant, vague, scandalous, and frivolous allegations. I accepted those submissions. The Claim was struck in its entirety because of the egregious violations of the rules of pleadings.

[8] I am also of the view that there was nothing improper with the Defendants filing the claims the Plaintiff brought against other tech companies and government entities. Evidence is admissible on a motion brought under R. 25.11. I did not admit the claims into evidence, not because the rules prohibit evidence, but because to do so would result in an “evidenitary disposition” that is not permitted on a pleadings motion. The evidence of the other claims did not form part of my decision, and did not significantly add to the costs of the motion.

[9] I conclude that the Defendants were overwhelmingly the succesful party on the motion. I am satisfied that the Defendants are entitled to their costs of the motion.

Amount of Costs

i) Fixing Costs

[10] Rule 57.03(1) provides that on a hearing of a contested motion, the court shall make an order fixing the costs of the motion and order them paid within 30 days, unless the court is satisfied that a different order would be more just. Section 131 of the Courts of Justice Act, R.S.O. 1990 c. C.43, provides that the costs of the proceeding are in the discretion of the court.

[11] In exercising my discretion with respect to fixing costs, I am to consider the factors identified in Rule 57.01 of the Rules of Civil Procedure. I am also to consider the overall objective of any costs award; that it be fair and reasonable and within the reasonable expectation of the unsuccessful party to pay: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at paras. 26, 38. The cost award must also be proportionate.

ii) Offers to Settle

[12] On July 22, 2022, the Defendants wrote to the Plaintiff and offered to settle the motion on the basis that they would consent to the Plaintiff filing an Amended Statement of Claim which addressed the deficiencies identified in the Defendants’ Notice of Motion. The Defendants offered the Plaintiff until September 30, 2022 to serve the Amended Statement of Claim. On July 25, 2022, the Plaintiff rejected the Offer to Settle. He stated that “this is not the first time [he has] drafted a Statement of Claim” and that the motion to strike was “a big waste of time”.

[13] The Defendants’ offer complied with the requirements of R. 49.10. The offer was made more than 7 days before the commencement of the hearing and was not withdrawn by the Defendants before the hearing. The offer was not accepted by the Plaintiff. The result of the motion was the same as the Offer to Settle. The existing claim was struck, and the Plaintiff had the opportunity to deliver an amended claim.

[14] On November 3, 2022, the Plaintiff served an Offer to Settle the motion by dropping several elements of the Claim. On January 6, 2023, he served an offer to dismiss the motion and the action on a without costs basis, exclusive of disbursements. On January 8, 2023, he served an addendum to the Offer to Settle in which he requested a total of $5,000 in legal costs from the Defendants for both the motion and the action. On January 18, 2023, the Defendants rejected the offer and refused to pay to the Plaintiff monetary compensation in the amount of $5,000. The Plaintiff later offered to settle the motion and the action on the basis that he receives payment of $4,000. The Defendants rejected this offer on the eve of the motion to strike.

iii) Impecuniosity

[15] The Plaintiff states that he is effectively impecunious. His only source of income is Ontario Works. In 2022, he received $9,017.60 from Ontario Works. He states that he is close to “six figures in debt”. He argues that in comparison, the Defendants are “one of the wealthiest and powerful companies on earth.” He states that the Defendants are seeking their costs as a “vindictive exercise”.

[16] The court has the discretion to make no cost order on the basis of impecuniosity however, such awards should be rare: Sutherland v. Manulife, 2011 ONSC 1170, at para. 8. Although hardship and impecuniosity may be factors, a party without means cannot expect to be immune from a cost order. As noted by Wilson J. in Mark v. Bhangari, 2010 ONSC 4638, at para. 10:

Parties cannot expect to be immune from an order of costs based on their limited financial resources. If this were the case, parties would be free to conduct litigation as they wished without fear of reprisal in the form of adverse costs order and this would be contrary to the philosophy of the Rules as well as to their requirements.

[17] I am of the view that impecuniosity cannot shield the unsuccessful party from a cost award: Anderson v. Montero, 2014 ONSC 5790, at para. 12. However, I am also of the view that impecuniosity may be taken into account when determining the amount of the cost award.

iv) Reasonable Expectations of the Party to Pay

[18] The Plaintiff is self-represented but was trained as a lawyer. As a lawyer with litigation experience, he ought to have reasonably expected that he would be ordered to pay costs if unsuccessful on the motion.

[19] In his written submissions, the Plaintiff states that when he last worked as a lawyer in a formal law firm setting, he used to make $250 per hour. He does not state when this was, or his years of experience. In arguing that he is entitled to costs of the motion, he submits that $10,000 would be a fair amount for costs.

v) Factors in Discretion

[20] The court may consider a broad range of factors when determining the quantum of the cost award, including the experience of the lawyers, the rates charged, and the hours incurred. Other factors include the complexity and importance of the issues, and the conduct of any party that tended to shorten or lengthen unnecessarily the proceeding: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, R. 57.01(1).

[21] I am satisfied that the motion was very complex. It required a consideration of a very lengthy Statement of Claim in which the Plaintiff advanced at least 11 different causes of action. The motion was argued over the course of several hours. The materials were voluminous.

[22] The Defendants provided a costs outline. The Defendants’ lawyers divided the work in a reasonable manner. The bulk of the work, drafting the motion materials and factum was performed by Mr. Suttner, who was called to the bar in 2018. The motion was argued by Ms. Spence who was called to the bar in 2011. The time spent by the lawyers was not unreasonable given the complexity of the issues on the motion.

[23] In exercising my discretion, I have considered the fact that the Defendants offered to settle the motion by providing the Plaintiff with two months to amend his claim to address the issues raised in the Notice of Motion. The Plaintiff was not more successful on the motion than if he had accepted the Offer to Settle. Needless to say, if the Plaintiff had accepted the offer he would have been in the same position as he is now, and the parties would have avoided the costs of the motion.

[24] In exercising my discretion, I also take into account the Plaintiff’s impecuniosity. It is my view that there is no point in making an excessive cost award that cannot be paid or will result in the Plaintiff’s bankruptcy.

Summary

[25] Having considered all of the factors set out above, I award costs of the motion to the Defendants fixed in the amount of $15,000 inclusive of counsel fee, disbursements and H.S.T. I am satisfied that an award of costs in this amount is fair and reasonable and within the reasonable expectations of the Plaintiff to pay. This award takes into account the fact that the Defendants served an offer which was as favourable to the Plaintiff as the result on the motion. The cost award is also a significant reduction from the amount of costs claimed by the Defendants to take into account the Plaintiff’s impecuniously.

Disposition

[26] I award costs of the motion to the Defendants, fixed in the amount of $15,000 inclusive of counsel fee, disbursements and H.S.T. Although costs of a motion are typically payable within 30 days of the date of the endorsement, I order the costs payable within 60 days because the Plaintiff may need additional time to pay due to his impecuniosity.

DATE: March 23, 2023

Chalmers J.