Ontario Superior Court of Justice

Court File Numbers:
Ottawa: CV-21-87127
Brampton: CV-21-1933

Date: July 18, 2025

Before: Justice Marc R. Labrosse

Parties:
Gilles Jozias Overtveld and Gi-Las Management and Maintenance Ltd. (Plaintiffs)
and
Joy Overtveld, Todd Overtveld, Gary Katz, Charles Rotenberg, Logan Katz LLP, MBC Law PC, Roger Ramonat, Leonard Burnstein, Francine Sarazin, Borden Ladner Gervais LLP, Kathleen McDormand, James Law, David Sheriff-Scott, Norton Rose Fulbright LLP, Jamie MacDonald, Cavanaugh LLP, Susanne Sviergula, Blaney McMurtry LLP, Teri MacDonald, Michael Rappaport, Merovitz Potechin LLP, Yasmin Vinograd, KMH Lawyers, Miriam Vale Peters, Chuck Merovitz, Maureen MacGillivray and Tina Johanson (Defendants)

Counsel:

• Anne E. Posno, for Joy Overtveld, Todd Overtveld and Gary Katz
• Kerry Nash, for Leonard Burnstein
• Matthew Chung, for James Law, Maureen MacGillivray, and Tina Johanson
• Jaime A. MacDonald, for Logan Katz LLP
• Todd J. Burke and Andrew W. McKenna, for Francine Sarazin
• Gavin Tighe and Rob Winterstein, for Blaney McMurtry LLP and Teri MacDonald, and as agents for Charles Rotenberg, MBC Law PC, Roger Ramonat, Borden Ladner Gervais LLP, Kathleen McDormand, David Sheriff-Scott, Norton Rose Fulbright LLP, Jamie MacDonald, Cavanaugh LLP, and Susanne Sviergula
• R. Leigh Youd, for Michael Rappaport
• Natalia R. Angelini, for Merovitz Potechin LLP, Yasmin Vinograd and Chuck Merovitz
• George Windsor, for the Plaintiffs and in his personal capacity

Heard: In writing

Endorsement

Overview

[1] The Plaintiff, Gilles Overtveld, was involved in at least seven proceedings in Ottawa which are the subject of case management with this Court (the “Related Proceedings”).

[2] Court file No. 19-81051 was an Application by Mr. Overtveld’s Attorneys for Property to determine the issues surrounding Mr. Overtveld’s capacity to manage property and his personal care (the “Capacity Application”). Of all the Related Proceedings, this Court determined that the Capacity Application should proceed first.

[3] The Capacity Application involved the Applicants, Joy Overtveld, Todd Overtveld and Gary Katz in their capacity as attorneys for property for Gilles Jozias Overtveld. The Respondents were Gilles Jozias Overtveld, Enrique M. Jurado and Rachida Youmouri. A decision was made in the Capacity Application on January 25, 2023 that Gilles Overtveld was not capable under the Substitute Decisions Act as of certain dates. Mr. Jurado and Ms. Youmouri were the unsuccessful parties, and an award of costs was made against them. George Windsor is a lawyer who was purporting to act for Gilles Overtveld in the Capacity Application and the court ruled that Mr. Windsor was not properly retained. An award of costs was made personally against Mr. Windsor in the amount of $15,000.00 for certain steps taken by him.

[4] On May 26, 2021, the Plaintiffs commenced this action by way of Statement of Claim (CV-21-1933) issued electronically in Brampton (the “Brampton Action”). The action was commenced by Mr. Windsor who was purportedly acting as counsel for Mr. Overtveld and his corporation. The Statement of Claim was issued in Brampton to avoid case management ordered in Ottawa.

[5] By letter dated June 11, 2021 to Regional Senior Justice Calum MacLeod, the Defendants and Attorneys for property, Joy Overtveld, Todd Overtveld and Gary Katz (the “Attorneys”) requested to bring a motion to change the venue of this claim from Brampton to Ottawa (the “Transfer Motion”) and also moved to strike the Statement of Claim in the Brampton Action. Other parties also brought their own motions to strike.

[6] A number of case conferences were held where it was decided that the Transfer Motion would proceed in advance of the motions to strike. By Endorsement dated August 4, 2021, this Court ordered that the Brampton Action be transferred to Ottawa (CV-21-87127). It will now be referred to herein as the “New Action”.

[7] Prior to the Transfer Motion being heard, Mr. Windsor wrote to the trial coordinator to advise this Court that the Plaintiffs would not be attending the motions to avoid attorning to the East Region’s jurisdiction over the New Action. Rather than attending, the Plaintiffs served a document titled Plaintiffs’ Conditional Notice of Opposition to Motions – No attornment or Submission to Jurisdiction of the East Region. No authority was provided in support of the Plaintiffs’ position that they could not attend the motions due to the risk of attornment. The Plaintiffs’ Conditional Notice of Opposition did not address the motions to strike in a substantive way.

[8] Within the New Action, counsel for Attorneys for Property made a request to Mr. Windsor under Rule 15.02 to address his retainer by the Plaintiffs. No substantive response was received from that request. It had been agreed to delay the issue of Mr. Windsor’s retainer until after the Capacity Application.

[9] On the day of the motions to strike, Mr. Windsor was present and participated in procedural issues. He confirmed that he would not be responding to the oral submissions of the moving parties on the motions to strike.

[10] On September 27, 2021, the Court released an Endorsement striking the New Action. It was agreed that the issue of costs relating to the New Action would proceed in writing after the Capacity Application was dealt with to understand the capacity issues.

[11] On January 26, 2024, the Attorneys brought a motion seeking the following relief:

a. An order that the plaintiffs’ lawyer, George Fairbairn Windsor (13218F) personally pay all costs awarded by the court in favour of any of the defendants in relation to:

i. Any costs incurred by any of the defendants in connection with the action commenced in Brampton having Court File No. CV-21-00001933-0000 (“Brampton Action”), then transferred to Ottawa having Court File No. CV-21-00087127-0000 (“New Action”);

ii. Any costs awarded to any of the defendants in connection with any appeal of any decision in the New Action.

b. In the event that this Honourable Court orders Windsor to personally pay costs of any of the defendants, an order for costs of these defendants Joy Overtveld, Todd Overtveld and Gary Katz:

i. In connection with the Brampton Action and the New Action, costs in the amount of $72,275 plus HST calculated on a substantial indemnity basis;

ii. Costs in the amount of $1,500 all-inclusive as ordered by the Court of Appeal in favour of these defendants.

c. An order disallowing Windsor to charge or to collect any legal fees to the plaintiffs in connection with the Brampton Action, the New Action, or any effort to appeal these proceedings, including in relation to this motion for costs from Windsor personally, and a corresponding order directing Windsor to account for and to repay to the plaintiffs any money already paid to Windsor by the plaintiffs on account of these legal fees.

[12] On November 7 and 15, 2023, Mr. Windsor wrote to this Court asking that the issue of costs requested personally against him be stayed until such time as he obtained instructions from Mr. Overtveld's surviving spouse and his friend Mr. Jurado. No response has been received since then.

[13] In December 2023, Mr. Windsor attended before this Court at a Case Management Conference to deal with the request for costs against him personally. He asked for time to seek counsel. Counsel for a moving party suggested that counsel may be available through Law Pro.

[14] At this appearance, Mr. Windsor indicated that he needed 60 days to respond but that he wanted the request for costs to be dismissed summarily. I declined to do so as there was no basis to deny the moving parties’ right to have the motions heard. Mr. Windsor also requested that the request for costs proceed by written submissions and all parties agreed.

[15] The only parties seeking costs personally against Mr. Windsor are the Attorneys, but they seek for all costs awarded in the New Action to be payable by Mr. Windsor. Otherwise, the other defendants are simply seeking costs as against the Plaintiffs.

[16] In January 2024, it was directed that a new bundle would be created in Case Center which relates solely to the Costs of the Brampton action and all parties would upload their materials to that bundle. Mr. Windsor was to have until March 18, 2024 to respond to the request for costs personally and any other request for costs filed by the other defendants. The moving party would have until April 8, 2024, to reply. No materials were uploaded by Mr. Windsor to the bundle titled “January 18/24 motion in writing” and none have been uploaded to date.

[17] On August 28, 2024, Mr. Windsor appeared before this Court on a related matter for a new action commenced by him as counsel for other plaintiffs. He was advised by the Court on that day of the request for costs made personally against him. He purported to not be aware of the request. I gave him 30 days to file his responding materials failing which I would proceed to make my decision without his input.

[18] Despite the additional time provided to Mr. Windsor, he has yet to respond to the motion for costs to be payable by him personally.

Background

[19] The factual matrix surrounding the New Action turned on issues involving the Plaintiff, Gilles Overtveld, his capacity and the management of Gi-Las Management and Maintenance Ltd. The Statement of Claim alleged that Mr. Overtveld was 92 years of age, had a partial physical disability that renders him mobility-impaired and is largely bedridden.

[20] The Statement of Claim was 42 pages in length with 104 paragraphs. It contained numerous allegations and I refer to them in my decision on the motion to strike. I need not summarize the outlandish accusations made in the Statement of Claim for the New Action. That document was at times incomprehensible and was fraught with deficiencies. It was obvious that the Statement of Claim needed to be struck and should clearly never have been issued. Even where the Court allowed the Plaintiffs in the New Action to amend, this was never done. The entire proceeding was a waste of time and money for the defendants.

Claims for Costs

Joy Overtveld, Todd Overtveld and Gary Katz – The Attorneys

[21] The Attorneys seek costs for the motion to strike on a substantial indemnity basis in the amount of $72,274.12 based on hourly rates in the range of $800.00 per hour. This would also include time on the transfer motion.

[22] They also seek costs for the motion for a cost award against Mr. Windsor personally in the amount of $32,176.96.

[23] The Attorneys clearly took the lead in this proceeding and filed the most substantive documents in the context of the transfer motion, motion to strike, and motion for costs personally.

Lawyer Defendants

[24] The lawyer defendants named in the Statement of Claim count Blaney McMurtry LLP, Teri MacDonald, Charles Rotenberg, MBC Law PC, Roger Ramonat, Borden Ladner Gervais LLP, Kathleen McDormand, David Sheriff-Scott, Norton Rose Fulbright LLP, Jamie MacDonald, Cavanaugh LLP, Susanne Sviergula, Michael Rappaport, Merovitz Potechin LLP, Yasmin Vinograd and Chuck Merovitz (collectively, the “Lawyer Defendants”).

[25] They have claimed costs on a substantial indemnity basis of $44,754.93 based on an hourly rate of $350.00 per hour. A Motion Record and Factum was prepared for the Motion to Strike.

Logan Katz LLP

[26] The accounting firm of Logan Katz LLP retained counsel who prepared a Motion Record and Factum for the motion to strike. They claim substantial indemnity fees in the amount of $6,480.32 based on hourly rates that range from $310.00 to $370.00 per hour.

Francine Sarazin

[27] Ms. Sarazin is the capacity assessor who performed assessments on Gilles Overtveld. The New Action was struck as against Ms. Sarazin with a right to amend. No amendment was ever filed. Ms. Sarazin’s counsel also prepared a Motion Record and Factum.

[28] Ms. Sarazin claims substantial indemnity costs of $8,749.81, plus the attendance fee for the motion to strike, $1,758.00 based on hourly rates which range from $350.00 to $450.00.

James Law, Tina Johanson, and Maureen MacGillivray

[29] These three defendants are trial coordinators working for the Ministry of the Attorney General. The allegations made against them in the Statement of Claim were preposterous. There was no basis in law to have named these three individuals. The decision to do so was reprehensible.

[30] Counsel from Crown Law Civil claims substantial indemnity costs of $5,851.25 based on an hourly rate of $232.50 per hour. A Motion Record and Factum was prepared together with the attendance at the motion to strike.

Analysis

[31] I have considered the following principles in my decision to award costs: The Courts of Justice Act, RSO 1990, c C.43 (“CJA”) provides:

131(1) 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.

[32] The Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario, para 26, articulated the principles that govern costs assessments. Armstrong J.A. stated: “When the court awards costs, it shall fix them in accordance with sub-rule 57.01(1) and the Tariffs…Subrule (1) lists a broad range of factors that the court may consider in exercising its discretion to award costs under s. 131 of the CJA.” Further, the Court of Appeal in Boucher stated that the assessment of costs is not a mechanical issue. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant: (see Boucher at para 26).

[33] There is no dispute that the costs of 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.

[34] Partial indemnity is the norm. Substantial indemnity costs are awarded by the Court to express its disapproval of a party’s conduct while full indemnity costs should be reserved for conduct that is especially egregious: Net Connect Installation Inc. v. Mobile Zone Inc., 2017 ONCA 766.

[35] Rule 15.02 of the Rules of Civil Procedure, RRO 1990, Reg 194 states that the court has the authority to order costs of a proceeding against a lawyer who commences a proceeding without authority:

15.02(4) If a lawyer has commenced a proceeding without the authority of his or her client, the court may, on motion, stay or dismiss the proceeding and order the lawyer to pay the costs of the proceeding. O. Reg. 427/01, s. 9; O. Reg. 575/07, s.1.

[36] Rule 57.07 gives the court the authority to require a lawyer, who has caused costs without reasonable cause or to be wasted by undue delay, negligence or other default, to personally pay the costs of any party, and to disallow costs between the lawyer and client.

[37] An order for costs to be paid personally by the lawyer involves a two-part test. Firstly, does the conduct fall within Rule 57.07(1). Secondly, in the circumstances, are personal costs against the lawyer warranted?: see Galganov v. Russell (Township), 2012 ONCA 410, para 18.

[38] In exercising my discretion with respect to the costs of this proceeding, I have considered the factors set out in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and make the following findings to those factors which are the most relevant in this matter:

a. Result: There is no dispute that the defendants were entirely successful in the result of the New Action. There was no merit to the New Action, the Statement of Claim was in large part incomprehensible, a duplication of existing proceedings and lacked any factual foundation as to the numerous conspiracies advanced. The defendants were entirely successful, and they are entitled to an award of costs.

b. Offers to Settle: I was not directed to any offers to settle.

c. Costs of the Unsuccessful Party and Reasonable Expectations: Mr. Windsor did not respond and did not provide any submissions as to how the court should view the reasonable expectations. However, the writing was on the wall for Mr. Windsor that if he was not successful, there would be significant claims for costs coming from several different parties. Mr. Windsor had to expect significant cost awards.

d. Importance of the Issues: The issues were important to the defendants because they were being sued. However, given the related proceedings in Ottawa, the New Action was really a repeat of existing proceedings for several defendants.

e. Complexity: This was not complex litigation. There was no merit to the Statement of Claim, and it was essentially a nuisance which required the defendants to respond.

f. Conduct: The conduct of Mr. Windsor was reprehensible. He has provided no evidence that he was ever retained by the Plaintiffs. He even admitted to not being retained by the corporate plaintiff at one point. He never responded to the request under Rule 15.02. He did not substantively respond to the motion to strike and did not substantively respond to this motion for costs against him personally. Mr. Windsor’s conduct in this proceeding has been nothing short of unreasonable. He has clearly caused all the costs to be incurred unreasonably.

[39] Ultimately, the costs in the New Action were entirely caused by Mr. Windsor. He had a purported client who was incapable and had no authority to commence this litigation. He intentionally did so to avoid the case management authority of the Ottawa court.

[40] Finally, it is noteworthy that there is no evidence that Gilles Overtveld was ever aware that Mr. Windsor was commencing the New Action. He had proper counsel in the Capacity Application who was able to demonstrate that she was being instructed by Mr. Overtveld. Mr. Windsor has provided no such evidence. My conclusion is that Mr. Windsor was operating on a frolic of his own without any authority from the Plaintiffs.

[41] All of these circumstances warrant that Mr. Windsor be personally responsible for the costs awarded to all the defendants to the New Action. There is no basis for Mr. Overtveld or his Estate to be responsible for any of these costs. It is clear that Mr. Windsor’s actions fall under Rule 15.02 as he commenced a proceeding without authority. His conduct falls within Rule 57.07(1) and in the circumstances, personal costs are clearly warranted.

Fair and Reasonable Amount

[42] As previously stated, this Court must determine what is a fair and reasonable amount. Given the conduct of Mr. Windsor as described above, the scale of costs is clearly warranted at the substantial indemnity rate.

[43] In arriving at a fair and reasonable amount, I am cognizant that counsel for the Attorneys were required to work on several motions. The transfer motion, motion to strike and the motion for personal costs. However, the quantum of costs claimed by counsel for the Attorneys are excessive for such proceedings which were not complex and fairly obvious in the result.

[44] In particular, the hourly rates claimed by counsel for the Attorneys are excessive when considering the regular hourly rates applicable to the Ottawa area. In coming to this conclusion, I am mindful that some of the hourly rates in this case are likely negotiated through insurers. Regardless, when it comes to the reasonable hourly rates applicable to an area, I adopt the reasoning of the court in Kaufman LLP v. Kechchian et al., 2021 ONSC 4160 and Brahma v. HR Services, 2022 ONSC 2645.

[45] This clearly applies to the hourly rates charged by counsel for the Attorneys which is in excess of $800.00 and double the hourly rates of all other counsel. Furthermore, the overall amounts spent on the motions towers over the amounts charged by other parties. While I appreciate that the Attorneys took the lead on the motion to strike, the amounts claimed by the Attorneys is far outside the realm of what would be reasonable for Ottawa counsel to charge for these two motions.

[46] When considering the costs incurred by the Lawyer Defendants, while the hourly rates are reasonable, the time spent is not reasonable. For example, in the action, the prepared Demand for Particulars and a Request to Inspect Documents for an action which clearly would be dealt with by motion to strike. As for the motion to strike, over 100 hours are spent by two senior counsel and a law clerk. In the context of an action which clearly had no merit, the time spent is unreasonable.

[47] The amounts claimed by the Attorneys and the Lawyer Defendants are not fair and reasonable in the context of the direction in Boucher.

[48] This Court could spend much time analysing the legal issues surround the costs claimed but the result is obvious. Even Mr. Windsor did not see fit to dispute the issue of costs. All the defendants are entitled to a cost award based on the substantial indemnity rate and in an amount which is fair and reasonable. I conclude that the following amounts are appropriate:

a. For the Attorneys: Costs of the New Action and Motion to Strike are fixed at $30,000 plus HST, and Costs of the Motion for personal costs as against Mr. Windsor are fixed at $5,000 plus HST. These amounts are inclusive of disbursements.

b. For the Lawyer Defendants: Costs for the New Action and Motion to Strike are fixed at $15,000 plus HST. This amount is inclusive of disbursements.

c. For Logan Katz LLP: Costs for the New Action and the Motion to Strike are fixed at $6,000 plus HST. This amount is inclusive of disbursements.

d. For Francine Sarazin: Costs of the New Action and the Motion to Strike are fixed at $8,000.00 plus HST. This amount is inclusive of disbursements.

e. For Tina Johanson, James Law, and Maureen MacGillivray: Costs of the New Action and the Motion to Strike are fixed at $5,000.00 plus HST. This amount is inclusive of disbursements.

[49] All of the above amounts shall be paid personally by George Fairbairn Windsor (13218F).

[50] In addition, there shall be an order that Mr. Windsor is disallowed from charging any legal fees to the plaintiffs in connection with the Brampton Action and the New Action.

[51] Finally, I do not purport to make any order with respect to the costs incurred at the Court of Appeal. I am of the view that if such an order for costs is to be paid personally by Mr. Windsor, the request should have been made directly to the Court of Appeal who would have ruled on that issue based on that proceeding or otherwise referred the matter back to the motion judge.

Justice Marc R. Labrosse
Date: July 18, 2025