Court File and Parties

COURT FILE NO.: 556/06

DATE: 20080111

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Leonard Susman, Plaintiff, respondent; -and- George Zafir and Coldmatic Refrigeration Inc. Defendant, appellant;

HEARD: In writing;

BEFORE: Lane, J.

COUNSEL: Leonard Susman, plaintiff, in person Kristine Anderson, for the defendant, appellant, George Zafir; No one appeared for Coldmatic.

E N D O R S E M E N T A S T O C O S T S

[1] On October 18, 2007, I dismissed this appeal with costs to follow the event. I have now received and considered the costs submissions of the parties.

[2] Mr. Susman is a lawyer who appeared on his own behalf to protect a judgment in his favour for $8229 for his account for legal services arising from an action he successfully defended for the present defendant, Mr. Zafir.

[3] Mr. Susman seeks costs of $9787 (plus GST and disbursements) based on his usual rate as a lawyer of $375/hr. for 26 hours, some of which was performing tasks necessitated by the failure of the appellant to perform his tasks in a full and timely way.[^1]

[4] Mr. Zafir proposes that the costs be just under $1200 because excess time was spent in factum preparation and appeal preparation and that the claim amounts to full indemnification. He also submits that there must be proportionality between the costs and what is at stake in the litigation. He also asserts that even legally trained litigants who represent themselves ought not to be awarded costs as if they had retained counsel: Fong v. Chan (1999), 46 O.R. (3rd) 330 (C.A.). On the other hand, E. Macdonald J. pointed out in Fellowes, McNeil v Kansa General International Insurance Co. (1997), 37 O.R. (3rd) 464 (O.C.G.D.) that in representing himself, the lawyer/party was deprived of the fees he could have earned from clients for the same time.

[5] In this respect lawyers should, in my opinion, be treated in the same fashion as lay litigants who forgo an opportunity for remunerative activity. I propose to fix Mr. Susman’s costs on a partial indemnity costs basis. I am also of the view that the procedural failures of Mr. Zafir, and his inclusion in the appeal material of the second, contradictory, copy of an important letter, a copy that had not been before the trial judge, whether deliberate or inadvertent, are not irrelevant to my consideration of the costs. I am not persuaded that the hours spent are so excessive as to require the drastic reduction sought, although they may be somewhat high in the circumstances.

[6] Bearing these considerations in mind, and in particular the need for proportionality, and the reasonable expectations of a party facing an appeal in a suit for some $8200, I fix the costs payable by the appellants Zafir and Coldmatic to the respondent at $5500 plus disbursements as claimed and GST.

Lane, J.

DATE: January 11, 2008

[^1]: Ms. Anderson was not his counsel at the relevant times.