Court File and Parties

Court File No.: CV-23-692870 (Toronto) Date: 2024-05-14 Superior Court of Justice - Ontario

Re: Adan McIntosh, Plaintiff And: Sharon Shore, Defendant

Before: Mr. Justice Graeme Mew

Counsel: Adan McIntosh, Litigant in Person Darrell Lee Kloeze, for the Defendant Sharon Shore

Heard: In Writing, at Toronto.

Endorsement on costs

[1] The defendant successfully moved to strike out the balance of the plaintiff’s statement of claim against the defendant Sharon Shore, without leave to amend: McIntosh v. Shore, 2024 ONSC 1767.

[2] At paragraph 63 of my reasons for decision dated 25 March 2024, I invited written submissions from the parties on the issue of costs, indicating that I was presumptively of the view that the moving defendant was entitled to costs.

[3] I have now received and considered the costs submissions provided by both the lawyers for the moving party, and by Mr. McIntosh, who is self-represented.

[4] The moving party seeks costs of $1,000 on a partial indemnity scale. The moving party’s costs submission states that “[t]he actual hours spent on the motion to strike have been reduced to come to an amount in costs that fairly accommodates the principles of indemnification with the ability of the plaintiff to pay a significant costs award”.

[5] Mr. McIntosh challenges the modest number of hours claimed to have been spent by the moving party’s lawyers on the motion to strike, and portrays himself as a “public interest litigant” who, as such, should be relieved of responsibility for the costs of bringing his unsuccessful claim against Justice Shore.

[6] The costs of and incidental to 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: Courts of Justice Act, R.S.O. 1990, chap. C. 43, s. 131(1). The usual rule in Ontario is that costs follow the event. This is subject, however, to the overarching discretion of the court. Hence my indication that the moving party was presumptively entitled to costs, but nevertheless providing Mr. McIntosh with the opportunity to persuade me otherwise.

[7] Were Mr. McIntosh a genuine public interest litigant, it would indeed be appropriate to consider relieving him of the burden of paying costs: Incredible Electronics Inc. v. Canada (Attorney General).

[8] It is noteworthy that Mr. McIntosh sought only $3 by way of damages in his defamation claim against Justice Shore.

[9] Litigation in which a claimant does not have a financial motive for bringing the case is a common feature of public interest litigation. However, the nature and significance of the issues raised by the plaintiff are also factors. In Incredible Electronics, at para. 91, Perell J. wrote that:

… one necessary trait of a public interest litigant is that he or she be a partisan in a matter of public importance. In [British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, 233 D.L.R. (4th) 577], at para. 38 LaBel, J. noted that in determining whether public interest litigants deserved special treatment with respect to costs, a factor was the nature and significance of the issues for which they were partisans. He stated:

[T]he more usual purposes of costs awards are often superseded by other policy objectives, notably that of ensuring that ordinary citizens will have access to the courts to determine their constitutional rights and other issues of broad social significance. Furthermore, it is often inherent in the nature of cases of this kind that the issues to be determined are of significance not only to the parties but to the broader community, and as a result the public interest is served by a proper resolution of those issues.

[10] Mr. McIntosh has been what the moving party has described as a “tenacious litigant” in a series of proceedings which he has instituted on his own behalf in relation to family law proceedings. He asserts that judges acting “in concert” have denied him “access to justice”. However, the sole issue in the claim which was struck out by my order, was whether Mr. McIntosh had an actionable claim against Justice Shore for allegedly disseminating “defamatory and unfounded remarks” about Mr. McIntosh to, and with the intention of influencing, her judicial colleagues.

[11] That claim failed because, even assuming that the facts alleged by Mr. McIntosh to be true, his action was nevertheless certain to fail because of the defences of judicial immunity and absolute privilege.

[12] The impugned conduct of the judges that Mr. McIntosh has, and continues to challenge, including that of Justice Shore, myself and several other Ontario jurists, is no doubt of great interest to Mr. McIntosh. However, in my view no genuine public interest litigation can be discerned from this case.

[13] At the core of the various cases before this court involving Mr. McIntosh are issues of custody, financial support for, and parenting time with, his children. His general assertion is that Justice Shore and other judges have acted in concert to deliberately deny him of access to justice. Such claims, and in particular the defamation claim against Justice Shore, do not elevate his private family law disputes into public interest litigation.

[14] Accordingly, Mr. McIntosh’s costs submissions have not persuaded me that the usual practice of costs following the event should not be applied.

[15] The amount sought by the moving party is both fair and reasonable. Costs of the motion are therefore payable forthwith by Mr. McIntosh to the moving party in the amount of $1,000, inclusive of disbursements and applicable taxes.

Mew J. Date: 14 May 2024