2010 ONSC 6778, 2010 ONSC 6778

CITATION : STRONG v. STRONG , 2010 ONSC 6778 COURT FILE NO.: 05-99/09 DATE: 20101208 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Douglas W. Strong, Applicant AND: Carole R. Strong (now Carole Martell) and Ralph H. Hicks in their capacities as executors and trustees of the Estate of William Alfred Strong, and Carole R. Strong (now Carole Martell) in her personal capacity BEFORE: Madam Justice L.B. Roberts COUNSEL: Douglas W. Strong , Applicant, appearing in person David A.

Jarvis , for the Respondents ENDORSEMENT [ 1 ] This Endorsement disposes of the issues of the costs of the September 30, 2010 motion before me and additional matters that have arisen since the release of my Endorsement of October 4, 2010. [ 2 ] The applicant now moves in writing to amend the form of release that he was required to sign by the Judgment granted by the Honourable Mr.

Justice Fragomeni on August 8, 2008, which had allowed the respondents’ motion to enforce the settlement between the applicant and the respondents. [ 3 ] By my Order of October 4, 2010, I had also confirmed that the applicant would sign the form of release appended to Justice Fragomeni’s August 8 th Judgment. As I had noted in paragraph 23 of my Order, Mr. Strong indicated that he was willing to attend at the offices of Beard Winter LLP on October 14, 2010 to sign the release in the required form. [ 4 ] The applicant now complains that the required form of release would also indemnify Beard Winter.

He asks that a paragraph be inserted into the release expressly stipulating that the release does not preclude him from bringing a proceeding against Beard Winter. [ 5 ] Until his attendance before the Honourable Mr.

Justice Penny on October 12, 2010, the applicant had not raised the present issue about the release before Justice Fragomeni, me, or any other court before which he has attended in these proceedings. [ 6 ] Justice Penny stated in his Endorsement that he was not prepared to deal with the release issue that the applicant had raised on the spur of the moment but permitted him to put forward the issue before me as part of the written submissions to be made regarding the disposition of the costs from the September 30, 2010 attendance. [ 7 ] The applicant’s motion materials do not satisfy the criteria under Rule 59.06 of the Rules of Civil Procedure for amending, setting aside or varying a previous court order: there is no evidence of accidental slip or error, mistake, fraud, or new facts that could not have been discovered with reasonable diligence well before now. [ 8 ] The applicant submits that it is as a result of his having obtained legal advice that he now asserts the alleged deficiencies of the required release. [ 9 ] The first difficulty with the applicant’s position is that, as apparent from the Reasons of Justice Fragomeni, the applicant was represented by counsel at the time that the settlement was concluded and the draft form of release was approved by his former counsel on his behalf. [ 10 ] It is this settlement and release that Justice Fragomeni enforced by his Judgment of August 8, 2008.

The form of the release has therefore already been finally determined by Justice Fragomeni. Further, if not already implicitly or explicitly raised before Justice Fragomeni, the particular issue about the release presently asserted by the applicant could and should have been submitted to Justice Fragomeni. [ 11 ] Further, the

interpretation of the effect of the release urged by the applicant is not supported by the clear meaning of the release and the proposed clause is not a standard clause that is typically contained in releases. [ 12 ] The applicant’s present motion is nothing more than another collateral attack on the Judgment of Justice Fragomeni and a further attempt to keep these proceedings alive, and should not be permitted.

Under the guise of amending the release, the applicant is effectively asking this Court to give him leave to start an action against the respondents’ solicitors, Beard Winter, and thus continue these proceedings. There is no basis for me to make such an order. [ 13 ] The applicant’s motion is wholly without merit and an abuse of process. As a result, I dismiss the applicant’s motion to amend the required form of release. [ 14 ] Although not in accordance with the directions set out in my October 4 th Order or the October 12 th Order of Justice Penny, the

applicant finally signed the required form of release and direction re: payment of funds on November 25, 2010, and submitted them to the Court, rather than to Beard Winter. The applicant’s motion having been dismissed, it is no longer necessary to hold the signed release in escrow, as ordered by Justice Penny, and I release it to Beard Winter.

Beard Winter may make arrangements through my assistant, Sharon Junor, to pick up the signed release and direction from Judges’ Reception at 361 University Avenue. [ 15 ] I turn next to the draft form my October 4 th Order. [ 16 ] Other than the appended form of release, the applicant takes no issue with the draft form of order containing the new calculation of the postjudgment interest and amounts payable under the Judgment in accordance with the terms of my October 4, 2010 Endorsement, which calculation is appended as Appendix A to my Order.

Judgment is to go in the form of the draft order, subject to the further revisions that may be required as a result of this Endorsement. [ 17 ] With respect to the issue of costs, the respondents seek their costs on a partial indemnity basis with respect to the motions heard on September 30 and October 12, 2010. [ 18 ] The applicant submits that no costs should be awarded related to the September 30 th attendance because success was mixed.

The applicant has not made any submissions concerning the October 12 th attendance before Justice Penny. [ 19 ] I do not agree with the applicant’s submissions that no costs should be payable.

The respondents were substantially successful on the issue of the postjudgment issue to be awarded in that I did not reduce the postjudgment interest payable to the respondents because of the delay caused by the applicant and did not award the much higher rate of 5% asserted by the applicant. [ 20 ] With respect to the attendance before Justice Penny on October 12, 2010, the applicant abandoned the motion to amend my order with respect to the payment of the settlement funds, and instead raised the release issue and also asked to be relieved of his obligation to sign the release as I had ordered. [ 21 ] The applicant’s conduct has put the respondents to unnecessary expense because the applicant appears to be unwilling to accept that this proceeding has come to an end. [ 22 ] Although, as submitted by the applicant, his mental health issues and limited financial resources are factors to be taken into account in the exercise of my discretion to award costs, they are not definitive.

The applicant has not been found to be under a legal disability and was certainly capable before Justice Fragomeni, as noted in his Reasons for Judgment, when he attended before me, and as demonstrated by his written materials, of making cogent and intelligent submissions.

The applicant has had his day in court and he must also be responsible for the reasonable costs consequences of his lack of success, which should have been within his reasonable contemplation and knowledge, given the costs awards already made in this matter. [ 23 ] As a result, I order that the applicant pay the respondents’ costs of the motions before me and Justice Penny in the amount of $3,000.00, including disbursements and GST.

This amount may be deducted from any monies otherwise payable to the applicant. [ 24 ] If the respondents are seeking costs with respect to the unsuccessful applicant’s present motion to amend the release, they may make brief written submissions of no more than two pages, plus a costs outline, to me at Judges’ Reception Room 170, 361 University Avenue, as follows: the respondents shall deliver their submissions by December 15, 2010; and the applicant shall deliver his submissions by December 22, 2010. [ 25 ] The respondents may revise and submit to me the draft form of order, with Appendix A, to take into account this Endorsement, or draft a separate order and submit it to me, copied to the applicant.

As I shall be reviewing the form of any draft order and ensuring that it properly reflects this Endorsement, I hereby dispense with the necessity to obtain the applicant’s approval to the form of any order. L.B. Roberts, J. Date: December 8, 2010