Court File and Parties
Court File No.: CV-14-2518 Date: 2018 12 17
Ontario Superior Court of Justice
Between:
DARREN JOHN Plaintiff
- and -
TD INSURANCE Defendant
Counsel: Jeffrey Pasternak, for the Defendant
Costs Endorsement
Fowler Byrne J.
[1] This endorsement follows my decision dated November 7, 2018, in which the Defendant sought a dismissal of the Plaintiff’s claim. The request to have the action dismissed was not granted, but other orders were made in order to advance the matter forward.
Principles to Consider in Awarding Costs
[2] The Plaintiff, Darren John, was self-represented on this motion. The case of Fong v. Chan (1999), 46 O.R. (3d) 330 (Ont. C.A.), is authority for the principle that self-represented litigants are entitled to their costs, but subject to the court’s discretion. Self-represented litigants should only recover costs if they can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer to conduct the litigation, and that as a result, they incurred an opportunity cost by foregoing remunerative activity. The court adds that self-represented litigants are not entitled to costs calculated on the same basis as those of a litigant who retains counsel. The self-represented litigant should only receive a moderate or reasonable allowance for the loss of time devoted to preparing and presenting the case. This does not include a per diem basis to litigants who would ordinary be in attendance at court in any event: at para. 26.
[3] To show opportunity cost by foregoing remunerative activity, the self-represented litigant must prove that he or she gave up remunerative activity: see Mustang Investigations Inc. v. Ironside, 2010 ONSC 3444, 103 O.R. (3d) 633 (Div. Ct.), at para. 27.
[4] When awarding costs, whether to self-represented litigants or litigants who are represented by counsel, the overall principle of setting costs is to “fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant”: Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (Ont. C.A.), at para. 26.
Position of the Plaintiff
[5] Mr. John maintains that he was successful and is entitled to his costs. In support of this position, he submitted a bill of costs wherein he claimed that he works as a private investigator and charges $120.00 per hour. In support of that claim, he attached a letter dated June 1, 2015, from Tatangelo Legal Services, confirming that he is retained on a case-by-case basis for the purposes of private investigation and for process-serving. He also attached a letter dated July 15, 2014, from Alexanian Law Firm, confirming that he was retained as a private investigator, and that he intends to go to Centennial College for a one-year paralegal course. He has provided no evidence of more recent employment, nor does he provide any evidence of his hourly rate or of specific work he gave up in order to respond to this motion.
[6] Mr. John claims TD Insurance acted in bad faith by not giving him extra time to make his costs submissions. His bill of costs sets out a claim for partial indemnity costs in the sum of $2,990.26, but in his written submissions, he seeks full indemnity in the sum of $7,702.08 as a deterrent to the Defendant “from wasting any more of the [court’s] time and due to the bad faith actions of the defendant [in] not granting a reasonable request of a time extension”. This allegation of bad faith is not relevant to any costs order made in relation to the motion itself.
Defendant’s Position
[7] TD Insurance claims partial success on the motion. While it was not successful in having the action dismissed, it was successful in getting an order for the delivery of an affidavit of documents and to compel Mr. John to answer his outstanding undertakings. Accordingly, they submit that no costs should be ordered.
[8] If the court is inclined to grant Mr. John his costs, however, TD Insurance also takes issue with the amount claimed. They challenge Mr. John’s claim that he spent 42.8 hours in order to prepare for this motion, given that he filed no materials in response. They also challenge that he spent 14 hours to travel to the court for the motion hearing and attend the argument. They also challenge whether it was necessary for Mr. John to claim transportation from St. Catharines to Mississauga, and then a taxi to the court. They also challenge the fee of $200.00 for “finding a babysitter”.
Analysis
[9] I do not find that success was divided. TD Insurance sought an order dismissing the claim because Mr. John failed to deliver an affidavit of documents or answer his undertakings. No request was made for an order compelling him to meet these obligations. The request was for an order dismissing the Plaintiff’s claim, upon which TD Insurance was unsuccessful. Accordingly, Mr. John is prima facie entitled to his costs.
[10] Mr. John has claimed over 42 hours of preparation. This appears to be excessive, considering he had not prepared any responding materials. He initially sought an adjournment so that he could prepare materials. Accordingly, the only time he may have devoted to this matter is to review the motion materials of TD Insurance, which he relied on for his submissions. In addition, Mr. John was in court for no more than two hours.
[11] Unfortunately, Mr. John has failed to provide any information to support his request for costs. As indicated above, his proof of employment is three to four years old. He has provided no verification of his hourly rate. He has provided no information indicating that he gave up any work in order to respond to this motion. Nothing was submitted that shows lost opportunity cost for Mr. John for the entirety of 2018, which is the period of time relevant to this motion.
[12] With respect to the claim for disbursements, Mr. John has provided no evidence of the expenses that he claimed. Had he taken a bus from St. Catharines, there must be a receipt for the transit fare or perhaps even a receipt for having taken a taxi. If he had to pay a babysitter, he should also have acquired a receipt. In any event, the court materials indicate that Mr. John lives in Mississauga. It would be unreasonable to reimburse him for travel from St. Catharines. This motion had been scheduled for some time. It was Mr. John’s choice to be in St. Catharines immediately preceding the motion hearing.
[13] Following the principles set forth in Boucher, it is fair and reasonable for Mr. John to recover some costs in light of his success on this motion. It must be considered though, that the additional orders made to move the matter forward, were required due to Mr. John’s inaction in the litigation. Accordingly, I make the following order:
- TD Insurance shall pay the costs of this motion to Darren John, fixed in the sum of $500.00 inclusive of time and disbursements, payable in the cause.
Fowler Byrne J.
Released: December 17, 2018
Additional Court Information
COURT FILE NO.: CV-14-2518 DATE: 2018 12 17
Ontario Superior Court of Justice
Between:
DARREN JOHN Plaintiff
- and -
TD INSURANCE Defendant
REASONS FOR JUDGMENT Fowler Byrne J.
Released: December 17, 2018