) ) Joanne St. Lewis Plaintiff – v. –, 2013 ONSC 6118

CITATION : St. Lewis v. Rancourt, 2013 ONSC 6118 COURT FILE NO.: 11-51657 DATE: 2013-10-04 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Joanne St. Lewis Plaintiff – and – Denis Rancourt Defendant ) ) ) ) ) ) ) ) )) Richard G. Dearden, for the Plaintiff Denis Rancourt, self-represented University of Ottawa ) Affected Party ) ) Peter Doody, for the University of Ottawa ) ) HEARD: By written submissions COSTS DECISION ON MR. RANCOURT’S CHAMPERTY MOTION R. SMITH J. Overview [ 1 ] The defendant, Denis Rancourt (“Rancourt”), is a former physics professor at the University of Ottawa.

He posted statements on his blog indicating that the plaintiff, Joanne St. Lewis (“St. Lewis”) acted as “Alan Rock’s house negro.” St. Lewis has commenced an action for libel seeking damages for the harm caused to her reputation as a result of the defendant’s publication. The University of Ottawa (the “University”) has agreed to pay for St. Lewis’ legal costs to sue Rancourt for libel because the statements made by Rancourt were related to her employment with the University and because the University found the comments shocking and unacceptable. Positions of the Parties [ 2 ] St.

Lewis is seeking costs on a partial indemnity basis inclusive of disbursements and HST of $79,556.50 or alternatively on a substantial indemnity basis in the amount of $104,631.00. [ 3 ] The University of Ottawa seeks costs on a partial indemnity scale in the amount of $58,004.55 inclusive of disbursements and HST. [ 4 ] The defendant Rancourt makes the following submissions: (

a) that the plaintiff has not incurred any costs that require indemnification because the plaintiff’s legal costs are being entirely paid by the University; (

b) that the University, as an affected party under rule 37.07(1), does not have a right to be indemnified for costs incurred in responding to the champerty motion; (

c) that he acted in good faith in bringing his champerty motion; (

d) that the proceedings were not complex and counsel for St. Lewis and the University have spent an excessive amount of time in preparation for this motion and the case conferences;

(

e) that some of the costs claimed were for time spent on other motions and appeals; (

f) that the amount sought in costs is above what the losing party would reasonably expect to pay; (

g) that the University and St. Lewis have duplicated their effort and the costs awarded should be reduced as a result; (

h) he objects to the hourly rate of $540 per hour claimed by senior counsel, David Scott, on a partial indemnity rate because it exceeds the partial indemnity rate in the Notice for the Profession.

Factors [ 5 ] The factors to be considered when fixing costs are set out in Rule 57 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 and include in addition to success, the amount claimed and recovered, the complexity and importance of the matter, unreasonable conduct of any party which unduly lengthened the proceeding, scale of costs and any offer to settle, the principle of indemnity, hourly rate claimed, the time spent and the principle of proportionality, and the amount that a losing party would reasonably expect to pay. Success [ 6 ] In this case both the University and St.

Lewis were completely successful on the champerty motion. I held that the University’s agreement to fund St. Lewis’ legal costs to commence this libel action against Rancourt was not champertous and did not constitute maintenance because the alleged libel occurred during the course of her employment for the University. Rancourt’s motion for a stay of the libel action against him as an abuse of process was dismissed. Complexity and Importance [ 7 ] Both counsel for the University and for St. Lewis spent a substantial amount of time preparing for various aspects of this champerty and maintenance motion.

They identified six separate areas that had to be researched including the law on champerty and maintenance, granting of a stay or dismissal of a libel action as an abuse of process, the admissibility of an affidavit filed subsequent to the cross-examinations on the affidavits, whether a trial of an issue should be ordered, the principle of res judicata , and collateral attack on an order. [ 8 ] The matter was made factually complex due to the extensive allegations made by Rancourt against various representatives of the University including its President, Alan Rock, Dean Feldthusen, Robert Giroux, and St.

Lewis herself. The affidavit and motion record filed by Rancourt contained 1,362 pages. Rancourt attempted to prove that there was evidence that Alan Rock and the University had directed St. Lewis to commence this libel action against him to harass him or for some other improper purpose related to the termination of his employment as a professor at the University. [ 9 ] The parties also engaged in extensive cross-examination on affidavits including affidavits of Alan Rock, Dean Feldthusen, and Robert Giroux, the Chair of the Board of Governors of the University of Ottawa.

In his factum Rancourt made reference to evidence contained in 530 pages of transcripts of cross-examination, 166 pages related to St. Lewis, 50 pages related to Dean Feldthusen, 140 pages related to Alan Rock, 68 pages related to Céline DeLong and 26 pages related to Robert Giroux. In addition 220 pages of affidavits and exhibits were attached. Rancourt filed an extensive record of affidavits, transcripts of cross-examinations on affidavits, and a factum. Both the University and St. Lewis were required to respond to the lengthy materials filed by Rancourt which raised many factual issues.

They also had to prepare for and attend the cross-examinations on the affidavits. [ 10 ] To summarize, I conclude that the matter was very factually complex due to the extensive materials and extensive allegations of fact made by Rancourt.

In addition, as part of this champerty motion the parties attended at five case conferences, namely on January 26, February 8, April 2, May 4, and September 27, 2012. [ 11 ] The initial date set for hearing the champerty motion was delayed when Rancourt accused Justice Beaudoin of bias, which resulted in Justice Beaudoin recusing himself as the case management judge on July 24, 2012. As a result the August 29, 2012 date for hearing the champerty motion was adjourned to December 13, 2012.

Rancourt also sought a further adjournment of the champerty motion on December 13, 2012, as he sought to await a response from his motion for leave to appeal to the Supreme Court of Canada from an interlocutory decision of Justice Annis. The request for a further adjournment was denied. [ 12 ] The matters were of high importance to St. Lewis as the publications affected her reputation as a lawyer and as a law professor.

The issues were also important to the University which had agreed to pay for the legal costs of one of its law professors in their employ, to assist her to protect her reputation. [ 13 ] The University has not requested costs on a substantial indemnity basis or alleged unreasonable conduct by Rancourt in bringing the champerty motion. St. Lewis has made allegations that the conduct of Rancourt throughout the champerty motion, including many of the motions he brought during the course of the champerty motion, amounted to unreasonable conduct.

His conduct includes alleging bias against Justice Beaudoin without notice and causing him to recuse himself, and making numerous allegations of improper conduct against counsel for St. Lewis, which were held to be unfounded. However St. Lewis has not specifically sought costs on a substantial indemnity basis. [ 14 ] I have made findings with respect to Rancourt’s conduct in various other costs decisions that have been previously published.

The champerty motion was argued within the one-day time period as scheduled, notwithstanding Rancourt’s request for additional time. As a result, I find that Rancourt’s conduct in this motion, seeking a stay of the legal action based on an allegation champerty did not riseto the level that deserves an award of substantial indemnity costs. As a result costs will be fixed on a partial indemnity basis for both theUniversity and St. Lewis. No Costs Incurred by Plaintiff that Require Indemnification [15] I have previously ruled that the fact that the University is indemnifying St.

Lewis for her legal costs in this libel action,including the costs incurred in this champerty motion, is not a valid reason to refuse to award costs to the successful party following aninterlocutory motion, as mandated in Rule 57.03. I adopt the reasons I gave in St. Lewis v. Rancourt, 2012 ONSC 3320 and in St. Lewisv. Rancourt, 2012 ONSC 5998, where I held that the fact that the University was paying for St. Lewis’ costs was not a valid reason forrefusing to award costs to the successful party. [16] In Hill v.

The Church of Scientology of Toronto, (SCC), [1995] 2 S.C.R. 1130, the plaintiff’s libel actionagainst the Church of Scientology was entirely funded by the Ministry of the Attorney General of Ontario. The Supreme Court upheldthe ruling that details of the plaintiff’s arrangements with his employer concerning the costs incurred by him in the legal proceeding werenot relevant to the libel action. For the same reasons as set out in my previous decisions St. Lewis v. Rancourt, 2012 ONSC 3320 and St.Lewis v. Rancourt, 2012 ONSC 5998, I find that the arrangements between St.

Lewis and the University as to the payment of costs andthe University’s right to recover costs awarded to St. Lewis in the proceeding are not relevant to the libel action and do not prevent theawarding of costs to the successful parties on a motion. Is the University Entitled to Recover Costs for its Participation? [17] Mr. Rancourt argues that the University is not entitled to be indemnified for the legal costs that it has incurred because hesubmits there was no need for the University to intervene in the champerty motion. In my decision dated June 6, 2012 (St.

Lewis v.Rancourt, 2012 ONSC 3320), I stated as follows at para. 10: The University of Ottawa would be affected by any Order made in the champerty motion and therefore based on rule 37.07(1) of theRules of Civil Procedure, R.R.O. 1990, Reg. 194, the University had a right to file material and respond to the Notice of Motion.

TheUniversity had the same right to attend and oppose the Motion for Leave to Appeal Beaudoin J.’s order. [18] I find that since the University was entitled to participate in the champerty motion as decided by Justice Beaudoin, and had theright to file material and respond to the champerty motion, that it also has the right to recover costs incurred on this champerty motionpursuant to the criteria set out in Rule 57 of the Rules of Civil Procedure. [19] I agree with Rancourt’s submissions that the costs incurred by St. Lewis or the University on other motions cannot berecovered in the champerty motion.

Counsel for St. Lewis states that the costs claimed in her bill of costs are only related to thechamperty motion, and only include costs for preparation, cross-examinations on affidavits, and attending the five different caseconferences, as well as the motion. I accept the submissions of counsel for St. Lewis in this regard. Rancourt has not been able toidentify any time claimed by either St. Lewis or the University for time spent on other motions. I will deal with Rancourt’s allegationthat excessive time was spent in preparation for these motions under a separate heading.

Rancourt Alleges He Acted in Good Faith? [20] Rancourt alleges that his motion was brought in good faith to deal with legitimate emerging issues. This is disputed by St.Lewis. It is not necessary for me to make a ruling on this matter as costs are not being awarded on a substantial indemnity basis in anyevent. Hourly Rates, Time Spent and Proportionality [21] St. Lewis submits that she was justified in spending the amount of time claimed to respond to Rancourt’s allegations.

St.Lewis submits that if she had not been successful on this champerty motion, she would be forever branded as a “house negro” and foundto have abused the court’s process. These amount to very serious charges against her as a lawyer and law professor and as a result shesubmits she was justified in vigorously defending herself. St.

Lewis further submits that Rancourt is responsible for causing therespondent parties to spend an extensive amount of time to oppose his abuse of process /champerty motion because he filed over athousand pages of evidence in the motion records and transcripts of cross-examinations in this motion. I agree with St. Lewis’submission in this regard as Rancourt filed extensive materials which contained many allegations of fact which had to be addressed. Asa result I find that it was reasonable for Rancourt to expect that both St.

Lewis and the University, would have to spend many hoursdevoted to responding to all of the factual allegations on which he based his champerty motion. [22] Rancourt has also previously argued on previous motions that the time spent by St. Lewis for research and preparation tooppose his motions was excessive given the experience of senior counsel. In St. Lewis v. Rancourt, 2012 ONSC 5998, at para. 19 Istated as follows: Mr. Rancourt submits that the time claimed for research and preparation was excessive given the experience of senior counsel. Both the

complexity of the matter and the length of materials and number of issues raised by the moving party are important factors when considering the reasonableness of time spent. I have already found that the matter of refusals is not a complex legal issue as relevance is the main factor. However, Mr. Rancourt produced a very lengthy 347 page record, sought answers to 145 separate questions, and all of the refusals were found to be justified. On his motion before me he was not successful in obtaining answers to any of the 35 questions.

The same result occurred before Beaudoin J. with the three witnesses produced by the University. Again, the University witnesses were asked a large number of irrelevant questions and all of their refusals were found to be justified. [ 23 ] Mr. Rancourt again submits that the time spent by St. Lewis for research and preparation was excessive given the experience of senior counsel. The complexity of the matter, the amount of material filed, and the number of issues raised by the moving party are important factors when considering the reasonableness of time spent by a party to respond.

On the champerty motion Rancourt filed extensive materials of over 1,000 pages containing many factual allegations. Rancourt submits that he would reasonably expect to pay a total of $25,000.00 in costs, as opposed to the combined amounts of $79,556.50 sought by St. Lewis and $58,004.55 sought by the University. [ 24 ] Rancourt further submits that the amounts sought greatly exceed the costs awarded in various other motions he has brought on which he was also not successful.

It is not possible to compare this champerty motion with the other motions Rancourt has brought, which mostly involved refusals and answers to questions on discovery and on cross-examinations of affidavits. Hourly Rates [ 25 ] I find that the hourly rate of $315 per hour claimed on a partial indemnity basis by Mr. Dearden is reasonable based on his extensive experience in the area of libel and slander and his excellent reputation as a lawyer in the city, and the rate is within the range provided for in the Notice for the Profession. I further find the rate of $120 per hour for a partial indemnity rate for Ms.

Semenova, called to the bar in 2011, is also reasonable. [ 26 ] Mr. Doody, who did most of the legal work in this matter for the University, claims an hourly rate of $300 per hour on a partial indemnity scale. I find this amount is also very reasonable given his extensive experience and excellent reputation as a lawyer in the city of Ottawa. In addition the rate claimed is within the guidelines set out in the Notice to the Profession. [ 27 ] Mr. Rancourt objects to the rate of $540 per hour claimed for David W. Scott on a partial indemnity scale, who spent 8.9 hours working on this matter. Mr.

Scott’s full indemnity rate is $900 per hour and his substantial indemnity rate is $810 per hour. Mr. Scott is recognized as one of Ontario’s top civil litigators and is renowned in his field as a trial lawyer. [ 28 ] The Information for the Profession contained in the Rules of Civil Procedure was published by the Civil Rules Committee in 2005 to provide guidance to the profession on hourly rates.

It states as follows: “It is anticipated that in considering the rates, as one of the various relevant factors, courts will normally treat the rates set out below as maximum rates when fixing partial indemnity costs.” [ 29 ] The Rules Committee anticipated that the maximum rates would apply only to the most complicated matters and for the more experienced counsel within each category. The Information for the Profession states that the maximum amounts in the range are a factor to consider when determining the amount that an unsuccessful party would reasonably expect to pay and the principle of indemnity.

The maximum partial indemnity rate for a lawyer of 20 years and over is $350 per hour. The Information for the Profession was effective as of July 1, 2005 and it was the intention of the Committee that it be updated periodically. The update has not occurred and it is approximately eight years later. [ 30 ] The Information for the Profession states that the court “will normally treat the rates set out below as maximum rates.” In this case, some eight years have gone by since the Information for the Profession was prepared.

The two unique factors are that David Scott has over 50 years’ experience at the bar, as well as an exceptional reputation as a trial lawyer. These two factors take the matter out of the usual situation, however I find that the issue of champerty and maintenance was not the most complex of issues. Costs on a partial indemnity basis at the rate of $450 per hour will be allowed for David Scott in the circumstances of this case and given the limited involvement of Mr. Scott.

Rancourt’s Conduct and the Amount the Unsuccessful Party Would Reasonably Expect to Pay [ 31 ] In this case Rancourt was aware of the hourly rates charged by counsel for St. Lewis and the University as he has been involved in several motions during the past two years during this legal proceeding.

He was also aware that he filed extensive, lengthy materials, and that there were extensive cross-examinations on affidavits, and five case conferences over a period of approximately 11 months. [ 32 ] Rancourt’s conduct of filing very lengthy, extensive materials on many issues and contesting every aspect of this litigation has caused counsel responding to his motion to spend large amounts of legal time to research and respond to his many allegations. As a result I find that Rancourt would reasonably have expected the costs of each of St.

Lewis and the University to be substantially in excess of $25,000.00 as this matter involved cross-examinations on affidavits of St. Lewis, Dean Feldthusen, President Rock, Céline DeLong, the University of Ottawa Board of Governors’ Chair Robert Giroux. In these circumstances find that Rancourt would reasonably have expected to pay legal costs in the range of $50,000.00 because of the extensive amount of materials he filed, and the multiple issues raised on this very important motion for the plaintiff, the University and Mr. Rancourt.

Rancourt’s Alleged Impecuniosity [33] Mr. Rancourt submits that his inability to pay is a factor which should reduce the amount of costs awarded. I previouslyrejected this argument in St. Lewis v. Rancourt, 2012 ONSC 5998 at paras. 8 and 25. In para. 25 I stated as follows: Mr. Rancourt submits that he is unable to pay costs due to the loss of his employment. I do not have sufficient evidence before me todetermine whether or not Mr. Rancourt is unable to pay legal costs. Whether he has made himself judgment proof as alleged by Ms.

St.Lewis in her submissions by recently transferring his interest in his home to his spouse for $1.00 is not a reason for not awardingreasonable costs to the successful party. I am also unaware of how successful he has been with his online solicitation of financial supportfor his legal costs. Mr. Rancourt's alleged inability to pay costs is not a factor given much weight in the circumstances where his ownconduct has caused the responding party to incur substantial legal costs to reasonably respond. [34] I adopt my previous statement and the decision of the Divisional Court in Myers v.

Toronto (Metropolitan) Police Force, (ON SCDC), [1995] O.J. No. 1321, at paras. 19 to 22 which held that it was important to avoid a situation where a personwithout means can cause responding parties to incur substantial legal costs without any financial consequences. Deferral of the Awarding of Costs [35] I made similar comments in St. Lewis v. Rancourt, 2012 ONSC 7066, at para. 6 and I adopt my previous reasons and willfollow the regular practice that a costs award on contested motions should be fixed following the event.

I do not see any valid reason orthat justice requires that the fixing of costs be deferred until after the case is decided. Costs Awarded to the University [36] In the course of the champerty motion Rancourt brought a number of motions which the University submits requiredcommunications with its client and an evaluation to consider its position and to determine whether its interests were affected, whichincreased the time required to be spent on this motion.

The University submits that what was a relatively straightforward application ofthe law of champerty and maintenance to the facts became a piece of litigation which took on a life of its own due to Rancourt’s conductof the litigation, which has added immeasurably to the cost and time. I agree with this submission. [37] Rancourt is a self-represented individual in these proceedings. However, I do not find that this is a reason for denying costs tothe successful respondents to his motion. His actions caused the University and St.

Lewis to spend substantial amounts of time torespond to multiple factual allegations and numerous steps in the proceeding. As a result, considering all of the above factors, I orderRancourt to pay the University $40,000.00 plus HST plus disbursements fixed in the amount of $2,000.00 inclusive of HST. Costs Awarded to St. Lewis [38] Based on the above principles set out in Rule 57, including the complexity of the matter, the time spent, and the reasonableexpectations of the unsuccessful party given the extensive materials filed, Rancourt is ordered to pay costs to St.

Lewis fixed at the sumof $50,000.00 plus HST plus disbursements of $2,000.00 inclusive of HST. R. Smith J. Released: October 4, 2013 CITATION: St. Lewis v. Rancourt, 2013 ONSC 6118 COURT FILE NO.: 11-51657 DATE: 2013-10-04

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Joanne St. Lewis Plaintiff – and – Denis Rancourt Defendant COSTS DECISION ON MR. RANCOURT’S CHAMPERTY MOTION R. Smith J. Released: October 4, 2013