COURT FILE NO.: CV-14-0374-00 DATE: 2024-08-15

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Gregory Paul Hlady Self-Represented Plaintiff (moving Party)

- and -

His Majesty the King in Right of Ontario & Ministry of Natural Resources Employees Bob David, Glen Niznowski, Jim Fry, Allan Willcocks, Shawn Burke, John Doe and Jane Doe Defendants (Respondents)

Counsel: Karlson Leung and Brendan Haynes, for the Defendants (Respondents)

HEARD: July 31, 2024, at Thunder Bay, Ontario Mr. Justice F. Bruce Fitzpatrick

Judgment on Motion for Summary Judgment

[1] The plaintiff, Gregory Paul Hlady, brings a motion for summary judgment in this action. Mr. Hlady submits that there is no genuine issue for trial. He has also produced a draft judgment in support of his motion. It states:

1. “This Court Orders that judgement in this case is awarded to the plaintiff.
2. This Court Orders that the Plaintiff’s claim for relief be granted in its entirety;
3. This Court Orders those additional costs and damages to the plaintiff since the filing of the current claim be added to the damages and costs payable. If the parties cannot agree on the additional damages, they shall arrange a case conference with this Justice”

[2] In oral submissions, Mr. Hlady indicated he was seeking judgment for 5 million dollars.

[3] Counsel for the defendants (responding parties) agrees that there is no genuine issue for trial in this matter. However, they submit, in contrast to Mr. Hlady, that any claims put forth against any defendants in this action have either already been satisfied or could not exist at law due to public policy reasons. Although His Majesty the Crown in Right of Ontario is named separately as a defendant, in addition to seven discrete individuals, I will hereafter refer to all defendants collectively as the Ministry of Natural Resources and Forestry (MNRF), formerly the Ministry of Natural Resources (MNR). This is for convenience purposes, and because each of the named individuals was an employee of the Provincial Crown and the MNRF, at the relevant time. Furthermore, Mr. Hlady asserts that all the individuals’ actions were carried out on behalf of the MNRF.

Background

[4] The incident that started this entire process occurred in late July 2009. On July 31, 2009, Mr. Hlady returned home to discover that an MNRF subcontractor had trespassed on his land. The Crown does not dispute that the trespass occurred.

[5] On July 30, 2009, McKenzie Forest Products (McKenzie), a forestry company, was carrying out brushing and grading work in an area designated by the MNRF as the Lac Seul Forest. This land is in Echo Township in the Sioux Lookout District, where Mr. Hlady lives and owns three separate wilderness parcels of land.

[6] McKenzie was contracted by the MNRF in partial fulfillment of its statutory authority to manage land in Ontario. This authority includes dual responsibility for:

1. The planning and management of Ontario Crown Land (Crown Land); and
2. The management of forests located on Crown Land (Crown Forests).

[7] Crown Land makes up 95% of the land base in Northern Ontario. The responsibilities for managing Crown Land are independent from those associated with managing Crown Forests. The planning process for each is separate and distinct.

[8] In managing Crown Forests, the MNRF can designate all or part of a Crown Forest as a “management unit” (MU). This authority comes from the Crown Forest Sustainability Act, 1994, S.O. 1994, c. 25. Once a Crown Forest is designated a MU, a Forest Management Plan (FMP) must be created before any work can be done to modify the land. An FMP involves planning that takes place over ten-year terms.

[9] On July 30, 2009, McKenzie was implementing an FMP and “Annual Work Schedule,” which outlines a MU licensee’s yearly forestry operations, in a MU called the Lac Seul Forest. Both documents were approved under the Crown Forest Sustainability Act, 1994, S.O. 1994, c. 25. In performing this work, McKenzie inadvertently crossed onto private property owned by Mr. Hlady. As McKenzie employees were clearing brush they pushed the debris, small trees, and some gravel onto Mr. Hlady’s property along an approximately 600 metre stretch of Kathlyn Lake Road, which adjoins the property.

[10] Several photos of the damage done by McKenzie were provided as an Exhibit to one of the affidavits filed by the MNRF on this motion.

[11] Mr. Hlady contacted MNRF employee Bob David and McKenzie employee John McLaren following his discovery of the damage. The three men met on July 31, August 4, and August 7, 2009. They discussed what steps would be taken to remediate the damage caused by McKenzie.

The Settlement Agreement

[12] On this motion, Mr. Hlady produced a two-page handwritten document dated August 6, 2009. It outlined steps to be taken both by McKenzie (identified as Buchanan Forest Products) and the MNRF. The requirements for both parties were very different. The steps assigned to McKenzie involved restoration of Mr. Hlady’s frontage on Kathlyn Lake Road and the provision of 200 yards of gravel, 20 cord of wood, 20 hours of backhoe time, and payment of $2,000.00. In contrast, the MNRF was to commit to a conservation planning process for Echo Township, to investigate wilderness values in Mr. Hlady’s neighborhood, and to consider “buying back” two third-party forest resource licences allowing holders to harvest red pine wood in scattered locations across the Lac Seul Forest, to be used exclusively for building log cabins. Ultimately this buy back provision was not pursued by Mr. Hlady.

[13] The agreement was not signed. Mr. Hlady asserts that the agreement was “sealed” by a handshake. The MNRF does not dispute taking steps in conjunction with McKenzie to remediate the physical damage done to Mr. Hlady’s lands. However, the MNRF does dispute the validity and merit of Mr. Hlady’s widespread and extensive claims for intervention with respect to the management of Crown Forests.

[14] Affidavit evidence of Shawn Burke, an MNRF employee, indicates that a signed agreement between the parties did exist at some point, but has since been lost. Mr. Burke deposes that this signed agreement did not contain all the terms set out in the handwritten August 8, 2009 document.

[15] The restoration work commenced August 10, 2009. It was finished by August 11, 2009. Trees were replanted. Photos of the restoration work dated October 23, 2012, were provided to the Court on this motion as an exhibit to Mr. Burke’s affidavit. Mr. Hlady provided the Court with a copy of an email he sent to Bob David on October 7, 2009, which said “I am happy with their (McKenzie’s) work to date and their commitment to finish the agreed scope. They still intend to provide the mechanical work and wood portions which I have no doubt they will complete. The survey remains outstanding and I expect that is in progress”.

[16] It is not contested that the MNRF committed to making best efforts to amend its existing planning document - a “Crown Land Use Policy Atlas” (CLUPA) appliable to Echo Township - in favour of a larger land use policy planning process.

[17] However, Mr. Hlady asserts that he obtained a much greater commitment from the MNRF than suggested, one which would place both himself and those around him in a much more powerful and influential position with respect to the MNRF’s management in Lac Seul Forest.

The Eco Bio-Regional Wilderness Council

[18] In November 2009, Mr. Hlady asserts that he joined with several other persons interested in the management of forests in Echo township to form the Eco Bio-Regional Wilderness Council (Wilderness Council). On this motion, Mr. Hlady continues to assert claims and seek judgment on behalf of the Wilderness Council, in this instance for the breach of a proposed second agreement which he claims was made between the MNRF and the Wilderness Council in November 2009 following the first settlement agreement. He describes these agreements as “co-incidental agreements running concurrently”.

[19] Mr. Hlady’s legal pursuits on behalf of the Wilderness Council are significant because a previous decision by the Court in this matter expressly struck out, without leave to amend, any claims asserted by Mr. Hlady on behalf of the Wilderness Council (Hlady v. Her Majesty the Queen (the “MNR”), 2016 ONSC 3375, at para. 13). Furthermore, the decision barred Mr. Hlady from making any claims on behalf of the public, including any public interest claims against the MNRF (Hlady, paras. 14–19). The attempt to claim these remedies in the statement of claim filed by Mr. Hlady was struck out without leave to amend (Hlady, para. 19). I note that Mr. Hlady filed a very brief affidavit in support of this motion for summary judgment, which was followed by documents supporting his contention that there is no genuine issue for trial. However, this affidavit was made not only on behalf of Mr. Hlady himself, but also his family members, and his community.

[20] This court has already ruled, in the decision noted above, that Mr. Hlady is only entitled to assert claims related exclusively to himself and his land.

[21] Mr. Hlady also asserts in his materials that he is entitled to a judgment for any damages arising from the breach of an agreement between the Wilderness Council and the MNRF with respect to an FMP Lake Buffer Agreement. As has been previously decided by this Court, Mr. Hlady has no standing to assert such a claim, nor the right to obtain judgment or damages for any such claims.

[22] Mr. Hlady commenced two additional actions in 2017, Court file numbers CV-17-0580 and CV-17-0583. These claims were expressly struck by the order of Newton J. on September 5, 2018. Leave was then granted for Mr. Hlady to incorporate his claims from the struck actions into a new, amended claim limited to forty-five pages, which is under the file number for this action. This motion has proceeded on the basis that Mr. Hlady put his best foot forward with respect to the claims outlined in his amended claim.

Other claims against individuals

[23] The balance of the claims asserted on this motion relate to actions for which Mr. Hlady claims remedy, namely “MNR sabotage of the Agreements” and the “MNR Campaign of Dirty Tricks, Obstruction and Personal Harassment”. He particularizes each these claims in relation to alleged breaches of the supposed agreement between the MNRF and the Wilderness Council. This commences with allegations of a “Big Lie” committed by Bob David in October 2012. It continues with allegations that relate to the period up until the first statement of claim was issued in 2014.

[24] In my view, there is no basis in fact or law for any of the claims made against any of the named individuals in this action. Furthermore, I agree with the submissions of the Crown that the agreement to remediate damage done by McKenzie has been satisfied in full. Any hypothetical agreement between the MNRF and Mr. Hlady would provide no more substantive rights to Mr. Hlady with respect the management of Crown Forests than already exists for other members of the public. The damage caused by McKenzie’s inadvertent pushing of debris onto Mr. Hlady’s property in July 2009 did not have the effect of elevating his status with respect to land management in Ontario. The action is dismissed with costs in respect of any and all claims made in the consolidated action as amended. I say this for the following reasons.

The Law

[25] Rule 20 of the Rules of Civil Procedure governs motions for summary judgment. The leading case of the Supreme Court of Canada dealing with Rule 20 is Hryniak v Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. A great deal of jurisprudence has followed on that decision. The test under Rule 20 is well known. Under Rule 20.04(2)(a), the court “shall” grant summary judgment if there is no genuine issue requiring a trial. Where there may be a genuine issue requiring a trial, the Rules empower a judge to weigh evidence, receive oral evidence, and evaluate credibility. The starting point is the evidence before the court. Each party is assumed to have put its best foot forward. If a summary judgment motion can result in a fair and just process, it is to be preferred. A trial should only be ordered only where the reasons to do so are compelling.

[26] A fair and just legal process is achieved when:

a) the court can make the necessary factual findings; b) the court can apply the law to those facts; and c) the result is proportionate, more expeditious, and less expensive than a trial.

[27] A case is amenable to summary judgment where the Court finds it appropriate and both parties agree. Notwithstanding any agreement between the parties to determine their action by way of a motion for summary judgment, the Court retains discretion to refuse. (Combined Air Mechanical Services Inc. v. Flesh, 2011 ONCA 764, [2011] O.J. No. 5431, at para 41). In addition, at para. 42 of that decision, the Ontario Court of Appeal noted that claims without merit are also amendable to summary judgment. The Court wrote:

42 The second type of case encompasses those claims or defences that are shown to be without merit. The elimination of these cases from the civil justice system is a long-standing purpose well served by the summary judgment rule. As stated by the Supreme Court of Canada in Canada (A.G.) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, at para. 10:

The summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from proceeding to trial. Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage. Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial.

[28] Summary judgment can be granted to dismiss claims against a defendant even without a cross motion seeking that result. It remains open to a motions judge to issue a final determination based on the record brought before the Court by the parties (Kassburg v. Sun Life Assurance Co. of Canada, 2014 ONCA 922, [2014] O.J. No. 6222, at paras. 50–52).

[29] Agreements that undermine the proper functioning of public institutions are void and unenforceable as contrary to public policy (Angevine v Ontario, 2011 ONSC 4523, 94 O.R. (3d) 391, at paras 15–18).

Analysis

[30] Both parties agree that a summary judgment motion is an appropriate method to resolve the current dispute. I agree. However, I am persuaded by the arguments of the MNRF that there is no genuine issue for trial. Any claims held by Mr. Hlady against the MNRF, either in tort or contract, have been satisfied.

[31] The photographic evidence of the damage done, along with the remediation, provided as part of the evidence put forward by the MNRF in the affidavit of Shawn Burke sworn July 17, 2024, gives the Court a full appreciation of what happened in July 2009. No doubt a trespass was committed. However, the damage comprised only a relatively small area of 600 meters along the border of one of Mr. Hlady’s rural/wilderness properties.

[32] The MNRF replaced three survey bars that had been disturbed by McKenzie. Mr. Hlady submits that this was not part of the settlement agreement. Yet it had to be done and the MNRF acted in good faith.

[33] Based on the photographic evidence and steps taken by the MNRF and its subcontractor McKenzie to promptly initiate and complete the remediation work within days of the July 30 trespass, I am of the view I can fairly resolve the dispute now. The expectations of one party that fairness demands all aspects of their claim be granted does not render such expectations the exclusive route to just resolution. In my view, Mr. Hlady’s assertions about the rights or agreements he may have been able to obtain from the MNRF as a result of their relatively minor tortious actions are inflated and unrealistic. At best he was entitled to have his damaged land put back to how it was prior to the bulldozer pushing material slightly over his property line. From the photos in evidence, it is clear that a substantial amount of the bush and trees that continue to line and protect his property along Kathlyn Lake Road remained intact throughout the incident. Mr. Hlady’s assertion that this relatively minor interference by McKenzie somehow derailed his dreams of opening a wilderness business on the balance of the land does not make any sense.

[34] Mr. Hlady indicates that in 2009 his plan was to open his business in 2011. That was two years after the remedial work was done. It was also, according to photos from 2012, one year after the road front was repaired to a condition one would reasonably expect a road in an isolated portion of Northwest Ontario to look like. In my view, Mr. Hlady’s claims of having his “assets stranded” and his economic plans ruined are unrealistic and without basis in fact nor any of the evidence he put before this court. I find that Mr. Hlady formed an unrealistic opinion that he would be able to direct government forest management policy in a way that suited his views on “proper and ecologically sound” forest development. Having been consumed by the inability to get exactly what he wanted, Mr. Hlady abandoned his focus and efforts on the realistic work he could have been doing to develop his own lands in the way he wanted and instead pursued the lengthy litigation which comes before this Court today. In my view, nothing that the MNRF did or could have done arising from any tortious act or agreement to settle could have had any impact on Mr. Hlady’s economic plans or ability to maximize the value of his properties.

[35] Mr. Hlady was able to get McKenzie to agree to additional benefits in order to make him happy. For example, they provided money, wood, and backhoe services. This was not a foundation that provided Mr. Hlady with the additional ability and legal right to takeover the direction of the MNRF in managing a large Crown Forest in Echo Township.

[36] I agree with the submission of the Crown that Bob David could not, in any event, have bound the Crown to give Mr. Hlady what he views as the ability to dictate Crown land-use policy in Echo Township going forward. Any amendment of the CLUPA for which the Crown did make best efforts to address Mr. Hlady’s input would have been subject to additional input and consideration from a variety of sources. The settlement agreement was to make best efforts. I agree with the Crown’s submissions that accepting Mr. Hlady’s position regarding the scope of the breached settlement agreement would be to recognize an unenforceable claim representing an improper fettering of government discretion with respect important public resources, which in turn would be void as contrary to public policy.

[37] The Court dealt with the exaggerated scope of Mr. Hlady’s pleadings and claims in the 2016 Hlady decision noted above. The Court made a direct finding limiting the scope of the claims Mr. Hlady could assert. This was fine tuned in a further decision a year later (Hlady v Her Majesty the Queen (MNR), 2017 ONSC 3981). The new statements of claim in 2017 were struck out with leave to amend. They could not have encompassed claims which this Court has already ruled to be unavailable to Mr. Hlady.

[38] From the Court’s perspective, this action became dormant after September 2018 and remained as such until the spring of 2024. Initially in 2024, Mr. Hlady brought the dispute back to the Court over concerns he had about the progress of the parties agreeing to a discovery plan. Mr. Hlady was unhappy with how the Crown was dealing with the 71-page discovery plan he had served in 2021. In the body of his written submissions on that matter he made several serious and, in my view, unsubstantiated claims alleging unprofessional conduct on the part of Crown counsel. His approach was then put aside in favour of this motion for summary judgment. An endorsement reflecting these events was made in Hlady v His Majesty the King (MNR), 2024 ONSC 753.

[39] Mr. Hlady decided to put aside his attempts to enforce a discovery plan and instead move for summary judgment. Mr. Hlady seeks summary judgment of the entirety of his case. I see it to be in the interests of justice to grant summary judgment. However, a just and fair result is summary judgment dismissing the claim in its entirety.

[40] I find that this case has taken an inordinate amount of Court resources and time since it was commenced ten years ago. The defendants in this matter should no longer be required to put in the time and expense of responding to claims that have no merit. I find that all the claims Mr. Hlady has made in this action, including any claims newly introduced by the 2018 “Consolidated Amended Fresh as Amended Statement of Claim,” which relate in any way to the formation of the Wilderness Council in November 2009, constitute meritless assertions of rights which Mr. Hlady could not have been reasonably granted through any negotiations or agreements to remediate a minor trespass on his lands.

[41] I find that that MNRF did not breach any portion of its singular agreement to remediate Mr. Hlady’s lands. At most, it promised to make best efforts to consider an amendment to the CLUPA for Echo township. Mr. Hlady’s email request to the MNRF that the CULPA be revised is evidence that he acknowledged the MNRF’s good faith performance. This was a first step in a process. It fulfilled the MNRF’s promise to make best efforts in determining the significance and feasibility of implementing the amendment sought. In my view, that concluded any obligation the MNRF had to provide a tort remedy or comply with the settlement agreement.

[42] However, Mr. Hlady continued to take it further and issued three statements of claim. His perceptions regarding his rights were, and continue to, be in my view, unrealistic. I agree with the submissions of the Crown that Bob David had no authority at first instance to bind the Crown in any manner akin to what Mr. Hlady believed. Furthermore, I accept that such agreement, if it did exist, would have improperly fettered the discretion of the MNRF and would have therefore been void as contrary to public policy.

[43] The promise of making best efforts is not a promise to deliver a particular result.

[44] The commencement of the original action in 2014 by Mr. Hlady evidenced his view that the settlement agreement had been breached. I find now, based on the evidence, that the settlement agreement was not breached by the MNRF. Any physical damage from the trespass had been remediated prior to this case commencing. The MNRF had engaged with Mr. Hlady and received his proposals for forest management in his region. That was the extent of the MNRF’s obligations owing to the settlement agreement. I find that Bob David did not, by act or correspondence, breach the settlement agreement. In addition, all other claims included in the totality Mr. Hlady's pleadings were made without standing to do so and remain unproven by the materials filed on this motion."

[45] Mr. Hlady has engaged other formal proceedings by way of a complaint against named defendants Glen Niznowski and Jim Fry, initiated in June 2010. This issue has long been resolved. Yet Mr. Hlady continues to refer to it and include it in this motion for summary judgment through claims for harassment and intimidation.

[46] Mr. Hlady seeks to obtain summary judgment on each of his claims, including harassment, intimidation, conspiracy, corruption, fraudulent misrepresentation, interference with contractual relations, defamation, and breach of confidentiality, all against various personally named defendants. In my view, he has not put forward any evidence upon which any of these claims could be said to have been proven successfully. He puts forward documents which show the defendants performing duties in the course of their employment. This is evidence of Crown employees doing and saying things that Mr. Hlady doesn’t like, or which do not align with his perceived, personal authority to direct and manage significant public resources, along with government employees. In my view at law, a person cannot be found liable in the civil context for the tort of harassment, conspiracy, or fraud simply because they say something another person doesn’t like. Allegations are not sufficient. There must be some demonstrable effect beyond a mere statement by an alleged aggrieved party that conduct is fraudulent, harassing, or intimidating such that a court could be convinced that to issue a remedy. In this case, public servants simply doing their jobs does not constitute action requiring court remedy.

[47] Mr. Hlady’s materials in this matter consist of a one-page, non descriptive affidavit and two volumes of documents totalling 466 pages. The second volume, pages 192 to 466, consist largely of correspondence authored by Mr. Hlady. It relates mostly to the conduct of this litigation. In my view, none of the evidence in the second volume is probative of any of the claims for which he seeks summary judgment.

[48] The documents in the first volume consist of letters, newspaper articles, emails, and documents which also largely reference the proceedings in this matter. These are not probative of any of the claims which Mr. Hlady does have standing to make in this matter, specifically those related to the alleged breach of the settlement agreement.

[49] Mr. Hlady also filed documents attached to his submission entitled “Plaintiff’s Oral Presentation to the Superior Court of Justice” which was made a lettered exhibit during this hearing. Some of these documents relate to the settlement agreement, such as the handwritten memo from August 6, 2009. Others are provided without context or explanation aside from various handwritten notes containing the plaintiff’s conclusions regarding proof and various legal concepts. These notes were disorganized, unexplained, and generally unhelpful as evidence.

[50] The court prefers and relies on the affidavit material filed by the Crown, in particular the affidavit of Shawn Burke. It provided the Court with proper evidence and a narrative that was comprehensible and supportive of the proposition put forward by the MNRF. This proposition was that there is no genuine issue for trial because any possible remedies Mr. Hlady could at first instance have obtained from the events of July 30, 2009, have already been satisfied. I agree with this argument.

[51] Mr. Hlady also asserts that the MNRF did some clear-cutting action adjacent to his lands in 2016. There was no evidence put forward on this motion to indicate how this could have possibly impacted any of Mr. Hlady’s economic rights, nor his right to peaceful occupation. I say this in light of the assertion by Mr. Hlady that by 2016, and continuing to today, he had yet to commence any activity in aid of his planned wilderness music and yoga tourist business, which he had hoped to start in 2011. It does not lie in Mr. Hlady’s mouth to blame any of the defendants for any business decisions he has made. I cannot possibly accept that McKenzie’s minor interference in July 2009 had any substantial impact on Mr. Hlady’s land such that it would render plans for a wilderness business unachievable. It seems to me that Mr. Hlady’s focus on this litigation has taken up much of his time, and he cannot now blame the MNRF for his lack of success in personal pursuits. I find that any claims asserted by Mr. Hlady post-2014 have not been proven. Further adjudication of these non particularized and speculative claims would take up an undue amount of Court time. It is now eight years after the alleged clear cutting in 2016 and fifteen years after the initial trespass in 2009. Mr. Hlady has not put forward any material except his own statements, and documents with mark-ups that fall short of proving anything. There was no evidence put forth of damage to the value of Mr. Hlady’s lands except his own unsubstantiated assertions. In my view, these post-2014 claims have no chance of success and should be weeded out now.

[52] For all these reasons Mr. Hlady’s claims in this matter are dismissed with costs.

Costs

[53] The MNRF shall have its costs for this motion and for the entire action on a partial indemnity basis. The MNRF has submitted a bill of costs for the entire action, including costs for this motion, on a partial indemnity basis totalling $203,247.20. The bill includes time for ten lawyers and six students. I will not allow any payment for costs of the students. This is time that that was for their professional benefit and an opposing party should not be responsible for costs in respect of that work. I also do not see it as appropriate for an opposing party, even in a somewhat complex matter such as this, to be responsible to pay costs for more than one lawyer on the successful side. Mr. Hlady did make numerous complaints about how changing Crown counsel improperly interfered with his moving the matter forward. I do not accept these submissions but nevertheless, in a circumstance like this, I see it as appropriate to award costs in respect of one counsel only. From my involvement with this file, I recall only three lawyers actually appearing in court: Mr. Haynes, Mr. Leung, and Ms. Burnett. I appreciate that the efficient use of court time requires massive out of court preparations. In my view, counsel for the MNRF approached this file in the most cost efficient and effective manner.

[54] From the bill of costs, I see that Ms. Burnett spent the most amount of time of all Crown lawyers deployed to work on this file. She spent 226.5 hours. Given what I know about the history of this file and the amount of paper generated by Mr. Hlady, I am not surprised that this amount of time was required. The MNRF seeks to have her time allowed at a rate of $325.00 an hour. Ms. Burnett was called in 2013. She appeared before the Court in 2016 and 2017. Her appearance was not noted in the Newton J. endorsement of September 2018. It appears that Ms. Burnett was working on the file recently, as there is time recorded for dealing with the discovery plan and the production of documents for the MNRF, despite the matter not making it to the discovery stage.

[55] I appreciate that the civil Crown Law Office may work in a collaborative way, with many different counsel “touching” various files. However, in this case, I am treating costs as being awarded on a generic, “one lawyer for the winning side” basis. I have picked Ms. Burnett as the representative, as she did appear on this matter and there is evidence in the bill of costs to indicate she did the most lawyer work on the file. This is a fact specific approach for this file only and is not meant as any kind of criticism or comment on how the civil Crown Law Office has been deployed to represent the defendants in this matter, nor as a way to approach awarding costs to the Crown in future. I am mindful of the provisions of section 131(2) of the Courts of Justice Act and the decision of the Court of Appeal in Ontario v. Rothmans Inc., 2013 ONCA 353, [2013] O.J. No. 2367. However, in Rothmans the Court stated at paras. 135 and 136:

[135] Section 131(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 and s. 36 of the Solicitors Act, R.S.O. 1990, c. S.15 both affirm the Crown's right to recover its partial indemnity costs in proceedings in which it has been successful, even though it is represented by salaried counsel. They provide:

Courts of Justice Act

131(2) In a proceeding to which Her Majesty is a party, costs awarded to Her Majesty shall not be disallowed or reduced on assessment merely because they relate to a lawyer who is a salaried officer of the Crown.

Solicitors Act

36. Costs awarded to a party in a proceeding shall not be disallowed or reduced on assessment merely because they relate to a solicitor or counsel who is a salaried employee of the party.

[136] As Ontario acknowledges, these provisions do not deprive the court of its discretion in fixing costs. However, the courts in many jurisdictions have adopted the principle that, where a successful party is represented by a salaried lawyer, the proper method of fixing costs is to deal with them as though they were the costs of an independent outside counsel. The theory behind this approach is that it will roughly and fairly approximate the actual amount of expenses incurred: see Eastwood (deceased) (Re), [1974] 3 All E.R. 603, [1975] Ch. 112 (C.A. Civ. Div.), at p. 608 (where the "English Rule" appears to have been first articulated); Edmonton (City) v. Alberta (Public Utilities Board), 1985 ABCA 6, [1985] A.J. No. 6, 16 D.L.R. (4th) 459 (C.A.), at p. 464 D.L.R.; 872245 N.W.T. Ltd. v. Dowdall, [1989] N.W.T.J. No. 114 (S.C.); Grand & Toy Ltd. v. Aviva Canada Inc., [2010] O.J. No. 139, 2010 ONSC 372 (S.C.J.), at paras. 3-5.

[56] I am exercising my discretion in fixing partial indemnity costs in this matter. I am looking at the matter through the lens of hourly rates for lawyers in Northwest Ontario. In my view, a rate of $325 would be high for a new call based on when this file started in 2014 and is approaching what would be a reasonable rate for a now eleven-year call. It is more sensible to apply a reduced rate over the entire period, as I am treating Ms. Burnett’s time on the file as a reasonable proxy for the work of all Crown lawyers for which costs should be paid by Mr. Hlady. In my view, what happened to his property in July 2009 was unfortunate. However, it did not have the catastrophic impact that he has attempted to portray in this litigation. Mr. Hlady unduly complicated this matter. Where a claim is dismissed in its entirety, the unsuccessful litigant should bear significant costs. However, the principle of proportionality drives me to a significantly lower quantum for costs than the amount requested by the MNRF. I am not sure how much of the disbursement costs requested related to food and accommodation, but Mr. Hlady should not be required to indemnify these types of disbursements simply because the MNRF chose counsel who had to travel to Thunder Bay to appear in Court.

[57] This matter involved efforts by the MNRF to provide counsel for several of its employees, all of whom I have found were improperly, and without basis in fact or law, accused of significant misdeeds. Responding to the vast and sweeping allegations made by Mr. Hlady required a significant expenditure of legal fees. He put vastly inflated claims before the Court. He had a legitimate claim to have his land remediated, which occurred before litigation was commenced. He chose to include claims on behalf of entities for which he had no standing. I find that he has unduly and unnecessarily prolonged matters as a result of his unfamiliarity with the Rules of Civil Procedure. He translated his frustrations with the legal process into baseless allegations of misconduct, which he then directed against Crown counsel and the personal defendants. This kind of litigation conduct must have a costs consequence.

[58] The matter did not reach discoveries. On two of the motions before me I did not order costs. The MNRF sought only nominal costs on the 2018 attendance. Nevertheless, Crown counsel did spend a great deal of time dealing with Mr. Hlady’s claims and investigating allegations in respect of the personal defendants. This file has taken ten years to get to this point. The costs to be awarded must reflect some of the significant effort needed to respond to the matter.

[59] Accordingly, I am fixing costs payable on a partial indemnity basis by Gregory Paul Hlady to his Majesty the King in Right of Ontario in the amount of $35,000.00 inclusive of disbursements plus HST payable forthwith. This amount includes costs for this motion.

[60] Order to go dismissing the claim with costs fixed the amount of $35,000.00 inclusive of disbursements plus HST payable forthwith.

“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick

Released: August 15, 2024