Ontario Superior Court of Justice

Court File No.: CV-15-65229
Date: 2025/01/06

Between:
Ray Guillermo, Plaintiff (Responding Party)
and
John Akpata, Defendant (Moving Party)

Before: Shalini Somji
Counsel:
Plaintiff: Self-Represented
Defendant: Yavar Hameed

Heard: In Writing

Costs Endorsement

Background

[1] The Defendant seeks costs in the amount of $19,726 following his success on striking the Plaintiff’s claim against him for delay: Guillermo v. Akpata, 2024 ONSC 3839. The Defendant seeks partial indemnity costs from July 31, 2015 to August 18, 2017, and substantial indemnity costs for the period thereafter up to the time of the dismissal of the action. The Defendant argues that he has been personally and financially prejudiced by the Plaintiff’s claim initiated nine years ago and the resulting delay warrants the costs requested.

[2] The Plaintiff argues the amount sought is excessive. He denies he is responsible for any harm to the Defendant, and the court should consider his ability to pay in determining the quantum of costs awarded.

[3] As the successful party, the Defendant is entitled to costs. There was nothing in the Defendant’s conduct that would disentitle him to a costs award. The only issue is what is a fair and reasonable costs award in the circumstances of this case.

Legal Principles

[4] Courts have broad discretion to determine to whom costs should be paid and the quantum: s. 131(1) Courts of Justice Act, RSO 1990, c C.43, as amended.

[5] Under Rule 24.05.1(1) of the Rules of Civil Procedure, RRO 1990, Reg 194 (“Rules”), if an action is dismissed due to delay, the court may award the costs of the action to the Defendant.

[6] In exercising their discretion, judges may consider the factors set out in Rule 57.01(1) and governing jurisprudence. Some of these factors include the following: the principle of indemnity, the experience of counsel and rates charged, the amount an unsuccessful party could reasonably expect to pay, amounts claimed and recovered, apportionment of liability, importance of the issues, complexity of the proceedings, admissions or lack thereof, the conduct of the parties, and any other matter that might be relevant to the question of costs.

[7] The costs rules are designed to advance five purposes in the administration of justice: (1) to indemnify successful litigants for the costs of litigation; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage the sanctioning of inappropriate behaviour by litigants in their conduct of the proceedings; and (5) to encourage settlements: 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, para 10.

[8] Costs are also intended to discourage unnecessary steps that unduly prolong the litigation: 1465778 Ontario Inc. v. 1122077 Ontario Ltd., para 26.

Offers to Settle and Conduct

[9] While the Plaintiff made offers to settle, they were for $3,000 and $4,000 on a $100,000 damages claim. I agree with the Defendant’s counsel that these offers were of no merit as the Defendant had always maintained his intention to defend the claim against him and the amounts proposed would not even have covered the costs already incurred to defend against the action.

[10] The Defendant made a Rule 49 offer dated August 18, 2017, for the Plaintiff to settle the litigation if he agreed to pay the Defendant’s costs on a party to party basis. The Plaintiff never accepted the offer. The Defendant was required to incur further costs to advance the litigation and take steps to have the case dismissed against him after the action lay dormant for five years. I find the criterion for a Rule 49 offer were met, and consequently, the Defendant is entitled to substantial indemnity costs after the date of the offer.

[11] Even in the absence of a Rule 49 offer, I find that the Plaintiff engaged in unreasonable conduct warranting an elevated costs award. First, each procedural step in this litigation was held at the Defendant’s insistence, rather than the Plaintiff, including production of affidavits or documents, mediation, and discovery. Second, the Plaintiff rescheduled or cancelled dates of discovery incurring delays and expense for the Defendant. Third, the Plaintiff agreed that the matter should have been brought in Small Claims Court. When the Defendant informed the Plaintiff he would consent to have the matter transferred to such court if his costs thrown away would be paid, the Plaintiff refused, requiring the Defendant to incur higher costs to defend the action in the Superior Court.

Complexity and Importance

[12] The issue on the motion was not complex, but significant to the Defendant as it resulted in terminating a lawsuit with a $100,000 damages claim looming over him for nine years and which risked undermining his reputation within the local poetry community. The action lay dormant between 2018 and 2023 with no update provided to counsel. Upon recovering from some health issues, the Defendant took steps in the last two years at his own time and expense to bring the litigation to an end and to recoup, in part, the costs incurred by him in defending this action.

[13] With respect to apportionment of liability, the action against the other Defendants was dismissed or settled, leaving Mr. Akpata to bear the costs associated with defending the action.

Quantum of Costs

[14] The Defendant is entitled to claim costs for the entire period of defending the action. The Defendant seeks:
i) partial indemnity costs from July 31, 2015 to August 18, 2017 of $6,077.24;
ii) substantial indemnity costs from August 19, 2017 to June 6, 2024 of $11,723.98;
iii) substantial indemnity costs for preparing a Reply to the costs submission of $1,152.60; and
iv) disbursements of $772.22 consisting of mediation costs and filing and courier fees for a total of $19,726 inclusive of HST.
Actual costs incurred by the Defendant were $25,650.

[15] The Defendant has not claimed costs associated with bringing the motion to set aside the discontinuance or costs in relation to the motion to dismiss the crossclaim which total $7,273.25 and which he has absorbed.

[16] I find the rate charged of $250/hour for lead counsel who has over 20 years experience to be more than reasonable. Lead counsel also appropriately delegated work to junior counsel and articling students where appropriate and at reasonable rates. Upon review of the detailed bill of costs filed, I find the rates charged are reasonable and the billings were commensurate with the work required to defend the action.

Plaintiff’s Ability to Pay

[17] The Plaintiff’s submission does not seriously address the quantum of costs save for the issue of Mr. Guillermo’s ability to pay. In this regard, the Plaintiff argues that he is living paycheque to paycheque and only able to work as a security guard in part because of the damage to his reputation in the artistic community. He also has an outstanding debt to his own counsel. The Plaintiff’s affidavit is not supported by any documentary evidence.

[18] More importantly, the Plaintiff would have been well aware or advised by his counsel over the last nine years of the cost consequences of bringing his claim against the various Defendants, some of which he settled with as early as 2017.

[19] The Plaintiff was also advised in a letter from Defendant’s counsel dated June 8, 2018, that the Defendant was taking the position that “the action was an abuse of process if not a vexatious action.” Yet, the Plaintiff took no steps to transfer the claim to Small Claims Court in order to reduce costs and engaged in conduct including cancellation of discoveries that increased costs for the Defendant. In the absence of clear and cogent evidence of impecuniosity, courts must be mindful to avoid situations in which litigants without means can ignore the rules of the court with impunity and by alleging impecuniosity, avoid the payment of costs: St. Lewis v. Rancourt, 2012 ONSC 7066, para 7; Myers v. Metropolitan Toronto (Municipality) Police Force, paras 19-22; Maher v. Great Atlantic & Pacific Co. of Canada, 2010 ONSC 1310, paras 31-33.

Fixing Costs

[20] Ultimately, in determining quantum, the overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances rather than the amount of actual costs incurred by the successful party: Rule 57.01(1)(0.b); see also Boucher v. Public Accountants Council for the Province of Ontario, paras 37-38; Deonath v. Iqbal, 2017 ONSC 3672, paras 20-21.

[21] Having considered the relevant factors including the Defendant’s success on the motion, complexity, the importance of the issues, the time and rates charged, the conduct of the parties, the reasonableness of the costs requested, ability to pay, and proportionality, I find that costs consisting of fees, HST, and disbursements in the fixed amount of $19,000 is fair and reasonable.

Order

[22] There will be an Order that the Plaintiff pay the Defendant fixed costs in the amount of $19,000 in 45 days.

Shalini Somji
Date: January 6, 2025