Girao v. Cunningham, 2021 ONCA 18

Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210108 DOCKET: C63778

Fairburn A.C.J.O., Lauwers and Zarnett JJ.A.

BETWEEN

Yolanda Girao Plaintiff (Appellant)

and

Lynn Cunningham and Victor Mesta Defendant (Respondent)

Counsel: Yolanda Girao, acting in person David Zuber and Michael Best, for the respondent

Heard: in writing

On appeal from the judgment of Justice Peter Cavanagh of the Superior Court of Justice, sitting with a jury, dated March 3, 2017, from the order on the threshold motion, dated April 20, 2017, with reasons reported at 2017 ONSC 2452, and from the costs order, dated July 20, 2017, with reasons reported at 2017 ONSC 4102.

Costs Endorsement

[1]

Overview

The panel allowed the appeal in this matter with reasons reported at 2020 ONCA 260. The appeal largely turned on the ways in which the trial was unfair to Ms. Girao: see para. 176. She was awarded the costs of the appeal and of the trial, including disbursements.

2The trial context was described at para. 175 of the appeal decision:

At trial, the appellant functioned as a legally-untrained, self-represented, non-English speaking litigant in testifying, examining and cross-examining through a Spanish interpreter. She was faced with a phalanx of defence counsel, two representing Ms. Cunningham, and two representing Allstate Insurance Company of Canada. The trial was 20 days long, involved many witnesses, and considered complex medical evidence.

3The trial led Ms. Girao to expend funds that are to be treated as costs thrown away because they were incurred for steps in the proceeding “which were reasonably necessary to proceed with the action but which have been rendered useless by the other party’s conduct in responding or not responding to the action”: Royal Bank v. Blatt, [1991] O.J. No. 688 (Ont. Gen. Div.).

[4]

Disbursements

Ms. Girao is therefore entitled to her trial disbursements in the amount of $14,021.40, broken down as follows:

Expense	Total incl. GST/HST
Medical Legal Report – Dr. Kryjshtalskyj	$2,260.00
Witness Tickets to Toronto (Bruno and Giselle Mesta)	$296.48
Lodging for Witnesses (Bruno and Giselle Mesta)	$39.96
Courier & Postal service	$44.13
Dr. Malicki’s attendance	$2,712.00
Dr. Manohar’s attendance	$2,712.00
Dr. Becker’s attendance	$3,390.00
Mr. Wollach’s attendance	$1,356.00
Ms. Mukherjee’s attendance	$1,210.83

5Ms. Girao is also entitled to her appeal disbursements in the amount of $6,491.39, broken down as follows:

Expense	Total incl. GST/HST
Trial transcripts	$5,623.33
Courier & Postal service	$868.06

[6]

Costs of the Action

Ms. Girao also seeks payment of the costs of this action up to the trial including the amount of about $137,000 paid to former counsel. In our view these costs, including pre-trial preparation, must be left to the discretion of the trial judge who hears the re-trial.

7In reserving costs of the action to the judge presiding over the re-trial, we direct that if an award of costs is made to the respondent, it shall not include any amount for or relating to the respondent’s preparation for or conduct of the trial under appeal. We agree with the approach of the British Columbia Court of Appeal in Fullerton v. Matsqui (District) (1992), 14 B.C.A.C. 153, [1992] B.C.J. No. 2969 that the appellant should not in any event be responsible for costs incurred in responding to the actions of the respondent’s previous trial counsel criticized in our appeal reasons.

[8]

Self-Represented Litigant Fee Allowance

Ms. Girao also seeks a fee allowance as a self-represented person, for herself and her husband, in the amount of nearly $800,000, calculated at $150 per hour, including their time in court at the trial and on the hearing of the appeal.

9The principles for awarding fee allowances to self-represented litigants were set out by Rouleau J.A. in Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228, following Fong v. Chan (1999), 46 O.R. (3d) 330, [1999] O.J. No. 4600 (Ont. C.A.), per Sharpe J.A. At para. 26 of Fong, Sharpe J.A. set out two conditions that must be met if a self-represented litigant is to be awarded a fee allowance. Fees should only be awarded to those lay litigants who can demonstrate that they:

a) devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation; and b) as a result, incurred an opportunity cost by foregoing remunerative activity.

10There is no doubt that much of what Ms. Girao and her husband did was work ordinarily done by a lawyer although, as noted in Fong and Benarroch, self-represented litigants should not be awarded a fee allowance for time they would ordinarily be attending in court.

11Another policy direction in Fong was that costs should serve to dissuade misconduct in litigation. That is why an insurer faced with an unrepresented litigant should expect to pay costs in some amount, particularly where the insurer’s trial tactics merit sanction, as in this case. In Benarroch, at para. 35, Rouleau J.A. stated that where there is little evidence of lost opportunity costs, any award will likely be nominal. There is no doubt that Ms. Girao and her husband would happily have been doing something else during the many hours they spent preparing for and attending at the trial and the appeal. We would grant a fee allowance that is, in the context, nominal but that is also consistent with the policy direction in Fong to reflect disapproval of a party’s inappropriate trial tactics.

12As to method of calculation and quantum, Ms. Girao claims for 5,261 hours including time for attendance at hearings and for document compilation that is not compensable. On several days, her claimed hours exceed 24 hours in the day. Her proposed hourly rate of $150 per hour falls at the very high end of the range established by case law. There is no doubt that Ms. Girao spent considerable time working on her case and her work proved effective. However, her method of accounting for such time does not lend itself to calculation based on hours worked.

13We are mindful of the comments of Rouleau J.A. in Benarroch, who noted that lump sum costs awards may be preferable in order to avoid transforming costs hearings into complex proceedings where the self-represented claimant is called upon to account for every minute of the day and prove every penny of revenue: at para. 18.

[14]

Disposition

Ms. Girao is entitled to a modest fee allowance for the trial and the appeal, which we fix at $35,000, for an all-in costs award of $55,512.79.