CITATION: Di Geso v. Pascoe, 2022 ONSC 2412
DIVISIONAL COURT FILE NO.: 129/20
DATE: 2022/04/26
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: GINO DI GESO and SILVANA COLAVECCIA, Applicants/Moving Parties
AND:
CAROLYN PASCOE and DARREN SUKONICK, Respondents/ Responding Parties
BEFORE: Lederer, J.
COUNSEL: Cynthia Kuehl, for the Applicants/Moving Parties
Carolyn Pascoe, on her own behalf
Darren Sukonick on his own behalf
HEARD at Toronto: In Writing
COSTS ENDORSEMENT
[1] There was a motion was for leave to appeal from a decision of the Toronto Local Appeal Body. The decision dismissed an application for twelve minor variances, two of which were sought to permit the construction of a home. The other ten dealt with other issues. The motion for leave to appeal was brought on before Justice Kristjanson on November 9, 2020. The Toronto Local Appeal Body had determined to conduct a review with respect to the ten “other” variances but had dismissed the application for a review of the two variances that affected the proposed home. The review of the ten “other” variances was ongoing (had not been completed) and, on that basis, the motion for leave to appeal (all twelve variances) was adjourned pending completion of the review of the ten with the proviso that the motion could be brought back once the final decision affecting the ten “other” variances had been made.
[2] Thereafter, a Notice of Abandonment was served, in effect, ending the motion and any prospective appeal of all twelve of the variances.
[3] Justice Kristjanson’s order dealt with costs to the extent of saying that the costs of the appearance before her were reserved to the judge hearing the motion for leave to appeal.
[4] In the absence of such a motion being heard the Respondents, Darren Sukonick and Carolyn Pascoe, relying on Rule 37.09(3) seeks costs:
Where a motion is abandoned or is deemed to have been abandoned, a responding party on whom the notice was served is entitled to the costs of the motion forthwith, unless the court orders otherwise.
[5] Both Darren Sukonick and Carolyn Pascoe are self-represented. While the Rules of Civil Procedure provide that cost may be awarded to a self-represented party (see: rule 57.01(4)(e)), it is unusual. The general understanding is that costs are directed to cover part of the cost of retaining and utilizing the services of a lawyer. Even so, there are cases that demonstrate that self-represented parties can be entitled to costs accounting for their own time, if the work they undertook was that which might otherwise have been undertaken by a lawyer, particularly if they did it well (McMurter v. McMurter 2017 ONSC 725). This has tended to occur more often in family law matters where the cost and personal impact are recognized as being more difficult for many individuals to manage.
[6] Carolyn Pascoe did not act on her own. She relied on Darren Sukonick. As I read the material, it could fairly be said that they acted together, as a team, with a singular purpose. Her contribution is described in her written submission as:
Pascoe’s work involved two areas that would ordinarily be done by a lawyer. Firstly, Pascoe assisted Sukonick in reviewing the voluminous record to identify matters that were relevant to the legal principles articulated in Sukonick’s factum. Many of the references to that record, which were included in Sukonick’s factum, reflected work done by Pascoe
Secondly, Pascoe prepared a separate factum that identified improper conduct of the Applicants which, in Pascoe’s submission, should have disqualified the Applicants’ entitlement to leave to appeal.
[7] I point out that it is apparent from the written submissions provided that the submission delivered on behalf of Carolyn Pascoe were produced with the assistance, if not the direct participation, of Darren Sukonick.
[8] For his part Darren Sukonick was trained as a lawyer, albeit he advised that it has been some time since he was in practice and never as counsel. Fong v. Chan 1999 2052 (ONCA) concerned a law firm that successfully appealed an order that it pay the costs of an unsuccessful motion to remove solicitors representing the respondents. It was awarded costs of the appeal. The lawyer acting for the firm was counsel to the firm, but not a member of the firm. The firm was entitled to costs attributable to his fees. The issue concerned the costs representing the time of salaried associates, a partner and a student articling with the firm. The case recognized that for over 100 years self-represented solicitors were entitled to costs (London Scottish Benefits Society v. Chorley (1884), 13 Q.B.D. 872, 53 L.J.Q.BH. 551) and found there was no principled reason to distinguish between solicitors and counsel. The circumstances were different. It was work done on behalf of the firm rather than a matter of a personal interest separate from the professional activities of those involved.
[9] As a general rule, costs are considered to be in the discretion of the Court. Where Rule 24 of the Family Law Rules is the authority for an award of costs, the Court’s discretion may be “curtailed” or “circumscribed” (Burns v. Krebs 2013 ONCJ 226 at para. 10). The same can be said for rule 37.09(3). It calls for a more “circumscribed” approach to an award for costs where a motion has been abandoned. In his submissions Darren Sukonick submitted that he has a prima facie entitlement to costs. He relies on Inzola Group Limited v. The Corporation of the City of Brampton, 2017 ONSC 3822 at para. 16:
A party that was required to respond to a subsequently abandoned motion is entitled to costs, in the absence of exceptional circumstances, and as such a party is presumptively entitled to such costs as a matter of right and to have those costs payable forthwith, unless ordered otherwise: Yang v. Mao, 1995 7052 (ON SC), [1995] O.J. No. 1323
[10] That case was substantially different from the one being considered here. It concerned a motion for summary judgment abandoned some time after it should have been apparent that there were issues requiring a trial. It took into account the proper understanding of costs “thrown away” and accepted that costs on a failed motion for summary judgment should not be limited to those costs. The case was concerned primarily with the impact of rule 20.06 which considers where the fixing of costs on a summary judgment motion could be made on a substantial indemnity scale. The case does not deal with or consider the question of how costs should be dealt with where the claimant is self-represented. However it is considered, whether as an “exceptional circumstance” as referred to in the quotation from Inzola Group Limited v. The Corporation of the City of Brampton or as a separate and specific consideration open to the Court through the closing words of rule 37.09(3) (“unless the Court orders otherwise”), the right to costs is not categorical. A self-represented party does not have an automatic right to recover costs (Fong.v. Chan, supra at para. 25).
[11] Be that as it may, the two respondents to the motion for leave to appeal were put to the cost of preparing and attending, in circumstances where the motion was found to be premature in light of an ongoing request for review and, then, costs having been reserved to the motion judge, having the motion abandoned. I find some measure of costs is appropriate but not in the amounts, or as fashioned by the two parties requesting them. Darren Sukonick approaches his request as a practicing lawyer would. He says he worked “approximately 100 hours” He submits this is reasonable:
• because it is similar to the time spent by counsel for the moving parties (92.6 hours),
• because when he did practice law (fourteen years ago) it was as a corporate lawyer and not as a litigator,
• because of the volume of material, said to be “over 1,800 pages” that was reviewed,
• because he identified relevant cases “omitted by the applicant”, and
• because he prepared a 36 page factum.
[12] Darren Sukonick identified the range of hourly rates available where the party was unrepresented, as from $20.00 to $150.00, quoted a case referencing a range of $100.00 to $150.00 (McMurther v. McMurter, supra at para. 20) and then suggesting that “the quality of the materials and analysis prepared by Sukonick merits the high end of the range, or $150 per hour”. This would take the request to (100 hours x $150) $15,000. Darren Sukonick acknowledges that “on a motion for leave to appeal there are limits to what this court will award” and that “as a general rule of thumb, costs for motions for leave to appeal will attract costs for represented parties in or around $5,000”. He submits “[t]hough Sukonick has incurred estimated costs of $15,000…he is seeking costs [of] $10,000”.
[13] Given the acknowledgment that this is twice what a represented party could typically anticipate for a motion for leave to appeal, in the absence of any dockets or anything else that would allow for a determination of the appropriateness of any time spent on any particular task, this is, in the vernacular “off the scale”. If you seek to have costs analyzed as those of a retained lawyer would be, you have to provide information that allows for that kind of inquiry. Acting for yourself is not supposed to be a means of augmenting your income; it is to address the reality that in some circumstances this approach is necessary and the effort made should be, in a proportionate way, recognized.
[14] The form of request made by Carolyn Pascoe is similar to that of Darren Sukonick. She submits she spent “approximately 40 hours reviewing the record as it relates to the law and preparing written materials”. This is said to be reasonable “in light of the over 1,800 pages of material generated and/or filed by the Applicants”. She seeks $50.00 per hour which represents a claim of (40 hours x $50.00) $2,000. This is justified on the basis of the “quality of the materials and analysis she prepared” and the understanding that $50.00 is “less than $80.00 attributed to law clerks who worked for the Applicants on this matter”. It is impossible to know in any particular way what Carolyn Pascoe did or to evaluate its quality or whether it reasonably represents what a lawyer would do, as opposed to the work the client would normally undertake. What did her review provide “as it relates to the law”? Interestingly, both Darren Sukonick and Carolyn Pascoe rely on the 1,800 pages said to have been produced by the Applicant. The submission of Darren Sukonick says he reviewed it all. There is no suggestion of how much Carolyn Pascoe reviewed or whether there was any duplication in what they read. Like the submissions of Darren Sukonick, the claim of Carolyn Pascoe is overstated.
[15] Counsel for the Applicants responds in kind. In her view Darren Sukonick should be awarded costs for 28 hours of work times $100 per hour for a total of $2,800. Carolyn Pascoe should be awarded nothing. On November 9, 2021, in the appearance before Justice Kristjanson, she didn’t seek costs. Counsel asks why she should be in a better position after the motion was abandoned. The answer should not be hard to find. With the motion abandoned and the proceeding accordingly over, everything Carolyn Pascoe did was wasted. Counsel for the Applicants discounts the value of what was done by Carolyn Pascoe. There is nothing to her claim for having spent 40 hours and her six page factum adopted what Darren Sukonick’s factum said and contained “no law and little substance”. The total award, as proposed on behalf of the Applicants, was the $2,800 suggested as applicable to Darren Sukonick.
[16] To my mind the proposal made by counsel for the Applicants is nearer to the mark. On the other hand, I am not prepared to award costs to Darren Sukonick and nothing to Carolyn Pascoe. As I have already observed, they worked together, as a team. In circumstances, I award costs to Darren Sukonick of $2,000 and to Carolyn Pascoe of $400. To be clear, and so there is no confusion, I am well aware that this is less than counsel for the Applicants proposed. However, it is just under one half of what would typically be expected by a represented party and, in both cases, 20% of what was sought. I find this to be appropriate.
Lederer, J.
Date: April 26, 2022