SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-10-404793
DATE: 20120910

RE: 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

BEFORE: Stinson J.

COUNSEL:
Paul Tiago and Anita Tiago, in person for the plaintiffs (responding parties)

Heidi Rubin , for the defendants Diane Parsons, Louie Reznick and William Taberner (moving parties)

HEARD: By way of written submissions

ENDORSEMENT AS TO COSTS

[ 1 ] This endorsement concerns the costs claim of the plaintiffs arising from their successful defence of a motion for summary judgment brought by the defendants Parsons, Reznick, and Taberner. In my endorsement released October 6, 2011, I dismissed the motion. In paragraph 37 of that endorsement I stated as follows:

[37] As the successful parties, the plaintiffs would ordinarily be entitled to an award of costs in their favour. Since they were not represented by counsel, however, they are not entitled to a ordinary costs ward. That said, they undoubtedly incurred properly recoverable expenses in responding to the motion. If the parties are unable to resolve the question of costs, I will receive written submissions from the parties, limited to three double spaced pages, plus a listing of expenses, as follows:

(a) by the plaintiffs within fifteen days;

(b) by the defendants within ten days thereafter; and

(c) a reply by the plaintiffs within ten days thereafter.

In the event the parties proceed by written submissions, I direct counsel for the defendants to receive and collect the court copies of all parties' written submissions, and to deliver them to me as a single package, c/o Judges Administration, Room 170, Courthouse, 361 University Avenue, Toronto, ON M5G 1T3.

[ 2 ] Subsequent to the release of my endorsement, the moving defendants served a motion for leave to appeal. As a result, the plaintiffs took no steps at the time to advance their claim for costs. The plaintiffs subsequently learned that the defendants did not intend to proceed with their leave motion. There then follow considerable back and forth between the parties regarding the timeliness of the plaintiffs' request for costs, ultimately resulting in the need for a case conference to give directions on the subject. Following that, the plaintiffs filed a costs request, consistent with the directions contained in my original endorsement, limiting their written submissions to three pages. The moving defendants, however, unilaterally responded with a nine-page submission; in turn, this led to a nine-page reply by the plaintiffs, supplemented by four appendices.

[ 3 ] I am compelled to observe that counsel for the defendants disregarded the express direction of the court that the submission was to be limited to three double spaced pages, which in turn led to the lengthy response by the plaintiffs. This disregard of directions given by the court is to be discouraged and, in suitable case, warrants a sanction. I will return to the subject of an appropriate sanction later in this endorsement.

[ 4 ] The basic submission of the plaintiffs is that they devoted considerable time and effort to do the work that would ordinarily be done by a lawyer retained to conduct the litigation. They assert that they could otherwise have been earning income from website development and other communications services. They filed no evidence of lost opportunities or the income they might have earned during the time they devoted to the litigation. In the costs outline submitted by them they claim fees of $21,635 for their own time, on top of $1,400 paid by them for legal advice to a lawyer. They also claim disbursements of $730.

[ 5 ] In their written response, the moving defendants argued that self-represented parties such as the plaintiffs are not automatically entitled to costs nor are they entitled to costs calculated on the same basis as those of a litigant who retains counsel. They cited Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.) at paras. 25-26 and Mustang Investigations v. Ironside (2010), 2010 ONSC 3444 at paras. 23 and 27 (Div. Ct.).

[ 6 ] The foregoing cases confirmed that in Ontario, a judge may exercise his or her discretion to award costs to a self-represented litigant only if (1) the litigant devoted time and effort to do the work ordinarily done by a lawyer; and (2) that as a result she or he incurred an opportunity cost by foregoing remunerative activity. If an opportunity cost is proven, a self-represented litigant should only receive a nominal, moderate or reasonable allowance for the loss of time devoted to preparing and presenting the case. To meet the second part of the test, a self-represented litigant must prove that he or she gave up remunerative activity. The judgment of the Divisional Court in Mustang put it succinctly: "Simply stated, no proof of opportunity cost, no nominal costs available." See Mustang Investigations v. Ironside , supra , at para. 27 .

[ 7 ] Although they filed a nine-page response to the defendants' submissions, accompanied by several appendices, at no time have the plaintiffs tendered proof of the opportunity costs incurred by them by reason of the time they spent working on the litigation. In paragraph 4 of their reply submission the plaintiffs stated as follows:

The plaintiffs submit that, if this court determines that further information is required respecting opportunity lost, the court should clarify the nature of that information, and provide an opportunity to address this issue.

[ 8 ] I expressly decline the request implicit in that submission. The case law cited by the defendants ( Fong and Mustang ) clearly states the law in Ontario, as I have quoted above. Those decisions are by higher courts and are binding on me. There is no need for me to clarify the law or the nature of the information the plaintiffs or any other self-represented litigants are required to provide in order to support a claim for costs. Despite having had the opportunity to do so in their reply, the plaintiffs provided no such information. There will be no further opportunity.

[ 9 ] In light of the plaintiffs' failure to provide evidence or proof supporting their claim for lost opportunity costs, I am unable to award the nominal costs otherwise provided for under the legal authority binding on me in Ontario. I therefore award no costs to the plaintiffs in respect of their personal time devoted to the litigation.

[ 10 ] I am aware that the plaintiffs incurred some legal expenses by retaining a lawyer to advise them in relation to various aspects of the matter. The cost of doing so, according to the plaintiffs' costs outline, was $1,400 plus GST of $182. I am prepared to allow them to recover those out of pocket expenses. Additionally, the plaintiffs incurred disbursements of $730, which they are also entitled to recover.

[ 11 ] I therefore fix the plaintiffs' costs of the motion at $2,312.

[ 12 ] The defendants have asked me to set off the costs of two previous appearances in Motions Scheduling Court and Motions Court at which the summary judgment motion was adjourned at the request of the plaintiffs. The costs of those appearances were reserved by the motions judges to the judge hearing the summary judgment motion.

[ 13 ] In the ordinary course, I would be disposed to award those costs to the defendants and set them off against the costs award otherwise made in favour of the plaintiffs. I expressly decline to do so in view of the disregard by defendants' counsel of the page limit direction given in my original endorsement.

[ 14 ] In the result, I fix the plaintiffs' costs of the summary judgment motion at $2,312. That sum shall be paid within fifteen days and shall not be subject to any setoff in favour of the defendants.

Stinson J.

Date: September 10, 2012