CITATION: Zbogar v. Dhall, 2020 ONSC 7760
COURT FILE NO.: 325/20
DATE: 20201214
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lederer, Penny and Sheard JJ.
B E T W E E N:
VILKO ZBOGAR,
Self-Represented
Applicant/Moving Party
- and -
NEELAM DHALL
Self-Represented
Respondent/Responding Party
Read at Toronto: December 11, 2020
INTERIM DECISION ON MOTION FOR LEAVE TO APPEAL
[1] The Moving Party, Vilko Zbohar, seeks leave to appeal the costs order of Hood J. dated September 10, 2020, amended September 14, 2020.
[2] As per the Case Management Endorsement of Favreau J. dated November 5, 2020, Mr. Zbohar was directed to submit his motion materials to a panel of the Divisional Court without the need for the Responding party, Neelam Dhall, to file responding materials. If the panel determined that Mr. Zbogar’s motion might meet the test for leave to appeal, Ms. Dhall was to be given an opportunity to respond. The Endorsement invited the panel to direct a further case conference with Favreau J. or to make any other directions it determined fit.
[3] The panel has reviewed the materials filed by Mr. Zbogar. We are of the view that he may meet the test for leave to appeal with respect to one ground only: that Hood J. may have erred in awarding costs to Ms. Dhall for time spent in preparing responding materials, without evidence that the time spent caused her to forego income.
[4] Fong v. Chan, 1999 2052 (ON CA), provides that that costs should only be awarded to a self-represented litigant who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation and that the work done by them resulted in a loss by forgoing remunerative activity. The Divisional Court in Mustang Investigations v. Ironside 2010 ONSC 3444 confirmed that Fong remains good law.
[5] Ms. Dhall is to be permitted an opportunity to respond to the one issue identified above.
[6] Leave to appeal on all other grounds raised by Mr. Zbogar is denied.
[7] The panel directs that a further case conference be scheduled with Favreau J. to make directions respecting the delivery of Ms. Dhall’s responding materials.
[8] Given Ms. Dhall’s serious health concerns, the panel strongly encourages the parties to explore settlement of this leave motion.
[9] If the parties are unable to reach a settlement, Ms. Dhall’s materials are to be submitted to the attention of this panel, which will remain seized of the leave motion.
___________________________ Lederer J. (by Penny J. due to COVID restrictions)
___________________________ Penny J.
___________________________ Sheard J. (by Penny J. due to COVID restrictions)
Released: December 14, 2020
CITATION: Zbogar v. Dhall, 2020 ONSC 7760
COURT FILE NO.: 325/20 DATE: 20201214
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lederer, Penny and Sheard JJ.
BETWEEN:
VILKO ZBOGAR
Applicant/Moving Party
- and –
NEELAM DHALL
Respondent/Responding Party
REASONS FOR INTERIM DECISION ON MOTION FOR LEAVE TO APPEAL
Date of Release: December 14, 2020