CITATION: Tiago v. Meisels, 2012 ONSC 6829
DIVISIONAL COURT FILE NO.: 444/12
DATE: 20121129
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
PAUL TIAGO, ANITA TIAGO and STUDIOMARA INC.
Plaintiffs
– and –
ALVIN MEISELS, DIANE PARSONS, LOUIE REZNICK, WILLIAM TABERNER and REZNICK PARSONS TABERNER, a.k.a. REZNICK PARSONS MEISELS, a.k.a. REZNICK PARSONS MEISELS TABERNER
Defendants
Paul Tiago and Anita Tiago, In Person
Heidi Rubin, for the Defendants
HEARD at Toronto: November 29, 2012
DUCHARME J. (orally)
[1] The applicants seek leave to appeal from the cost award of Stinson J. dated September 12, 2012, awarding costs to them as self-represented litigants. They successfully resisted a partial motion for summary judgment brought by three defendant solicitors in this solicitor’s negligence action.
[2] Essentially, the applicants take issue with the quantum of the costs award. They claim they were entitled to compensation for the personal time they devoted to the litigation, notwithstanding that they did not satisfy the requirements set out by this Court in Mustang v. Ironside, or by the Court of Appeal in Fong v. Chan, both decisions which were binding on the motion judge.
[3] On this motion, the applicants agree that the motion judge correctly applied binding legal principles. Rather, they seek leave to appeal to have this Court reconsider its decision in Mustang Investigations v. Ironside and overturn itself. They also claim that the common law rule as expressed in Mustang Investigations v. Ironside is contrary to s. 15(1) of the Canadian Charter of Rights and Freedoms and is inconsistent with unspecified “Fundamental values enshrined in the Charter”. On this basis, they invite the Divisional Court to develop a new common law rule regarding the awarding of costs to a self represented lay litigant.
[4] Section 133(b) of the Courts of Justice Act, R.S.O. 1990, c. C-43 provides that Appeals in which the sole issue is costs lie only with leave of the Court. Where leave to appeal from a costs award is granted, it is granted sparingly, only in the most obvious case, and only where there are strong grounds that the motion judge erred in his exercise of discretion.[^1] The threshold is high.[^2] As Armstrong J.A. stated in McNaughton Automotive Ltd. v. Co-operators General Insurance Co. at para. 26 of an appellate court should only set aside a costs order “only if the trial judge has made an error in principle or if the cost award is plainly wrong.”[^3] Leave to appeal from a cost award is rarely granted by this Court because there is a high degree of deference accorded to the judge of first instance. If a decision is detailed and well-reasoned, deference must be accorded even if this Court does not adopt all of the reasoning of the motion judge.[^4] In McNaughton Automotive Ltd. v. Co-operators General Insurance Co., Armstrong J.A. explained at para. 27.
I am also mindful that a costs award is a discretionary order and that the judge of first instance is in the best position to determine the entitlement, scale and quantum of any such award.
[5] This is not one of the rare and obvious cases where leave to appeal from a costs award should be granted. The applicants have not demonstrated that there are strong grounds upon which the appellate court could find that the motion judge erred in exercising his discretion. Quite the opposite is true. The motion judge thoroughly considered the case law binding upon him, and correctly applied it. The constitutional issues were raised only peripherally before the motions Judge and this was not done in the appropriate manner. Nonetheless, I have considered these Charter arguments and am of the view they are wholly without merit, certainly as far as any claim under s. 15 of the Charter. Thus, it is not surprising that the motions judge did not consider them more fully and, even if he had, it would have made no difference to the outcome of the costs award.
[6] The applicants have not alleged that there are any conflicting decisions by another judge or court in Ontario or elsewhere and they have conceded that the motions judge correctly applied well-settled law. All of the proposed grounds of appeal raised by the applicants are devoid of merit. The cost award contains no error in principle which would favour the applicants. The relevant law is settled, and the motion judge correctly applied the law in exercising his discretion. Therefore the motion for leave to appeal is accordingly dismissed.
[7] Costs are payable to the respondents on a partial indemnity basis in the amount of $3,000 inclusive of disbursements and HST.
DUCHARME J.
Date of Reasons for Judgment: November 29, 2012
Date of Release: December 21, 2012
CITATION: Tiago v. Meisels, 2012 ONSC 6829
DIVISIONAL COURT FILE NO.: 444/12
DATE: 20121129
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DUCHARME J.
BETWEEN:
PAUL TIAGO, ANITA TIAGO and STUDIOMARA INC.
Plaintiffs
– and –
ALVIN MEISELS, DIANE PARSONS, LOUIE REZNICK, WILLIAM TABERNER and REZNICK PARSONS TABERNER, a.k.a. REZNICK PARSONS MEISELS, a.k.a. REZNICK PARSONS MEISELS TABERNER
Defendants
ORAL REASONS FOR JUDGMENT
DUCHARME J.
Date of Reasons for Judgment: November 29, 2012
Date of Release: December 21, 2012
[^1]: McNaughton Automotive Ltd. v. Co-operators General Insurance Co., 2008 ONCA 597, [2008] O.J. No. 5040 (C.A.), at paras. 24-25
[^2]: Mustang v. Ironside, [2009] O.J. No. 5657 (S.C.J. Div. Ct.)) per Karakatsanis J. granting leave to appeal at para. 2; appeal allowed 2010 ONSC 3444, [2010] O.J. No. 3184 (S.C.J. Div. Ct.)) (“appeal”)
[^3]: See also Duong v. NN Life Insurance Co. of Canada (2001), 2001 24151 (ON CA), 141 O.A.C. 307, at para. 14
[^4]: Healey v. Lakeridge Health Corp., 2011 ONCA 55, [2011] O.J. No. 231 (C.A.) at para. 80