SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 11-106 (Owen Sound)
DATE: 20121018

RE: RONALD & KATHERINE PARKER
Applicants

AND:

TIMOTHY YUNDT, SARA BARNHUM, SCOTT BUEHLOW, TAMMY BUEHLOW, JAMES ECSEDI, TAMMY ECSEDI, STEPHEN BARTLETT, DONNA BARTLETT and BEVERELY LEWIS WATTS
Respondents

BEFORE: KRUZICK J.

COUNSEL:
Mr. John A. Kirby and Ms K. van Alphen, for the Applicants

Mr. Stephen B. McCotter, for the Respondents Yundt, Barnhum, and Ecsedi

Mr. R. Choi, for the Respondents Bartlett

Mr. Scott Buehlow and Ms. Tammy Buehlow, in person

C O S T S E N D O R S E M E N T

nature of the claim

[ 1 ] The Respondents, Scott Buehlow and Tammy Buehlow (“Buehlows”), seek an order for costs against the Applicants (“the Parkers”).

Background

[ 2 ] This was an application for a determination to the validity of four leases including one granted to the Buehlows. The application was heard on November 24, 2011.

[ 3 ] The Parkers were at all times represented by counsel. The other respondents – Timothy Yundt, Sara, Barnhum, James Ecsedi and Tammy Ecsedi, Donna Bartlett, and Stephen Bartlett – were represented by counsel. The Respondents Scott Buehlow and Tammy Buehlow were self-represented. The Application against the respondent, Beverly Lewis Watts was discontinued.

[ 4 ] The respondents, including the Buehlows, were successful in defeating the claim of the applicants.

[ 5 ] The issue of costs against the applicants, as it relates to the other respondents has been settled.

[ 6 ] On the application, detailed and supplemental facta and materials were filed by the applicants and the other respondents. The Buehlows responded to the claim but did not file a factum or memorandum on the application.

[ 7 ] At the hearing, submissions were made on behalf of all of the parties. The court allowed the Buehlows to make oral submissions and heard from Scott Buehlow who spoke on behalf of both. While heartfelt, the submissions made by Mr. Buehlow reiterated those already made by counsel and added nothing more to the legal argument.

Analysis

[ 8 ] This is a claim by self represented litigants, where the question is: should costs be awarded in this case? The leading case, in Ontario, on this issue remains, Fong v. Chan 1999 2052 (ON CA), 1999, 46 O.R. (3d) 330, a decision of our Court of Appeal.

[ 9 ] In that case, at paragraph 28, the court stated:

I would also add that self-represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel. As the Charley case, supra, recognized, all litigants suffer a loss of time through their involvement in the legal process. The self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case. Costs should only be awarded to those lay litigants 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 as a result, they incurred an opportunity cost by forgoing remunerative activity. As the early Chancery rule recognized, a self-represented lay litigant should receive only a “moderate” or “reasonable” allowance for the loss of time devoted to preparing and presenting the case. This excludes routine awards on a per diem basis to litigants who would ordinarily be in attendance at court in any event.

[ 10 ] In this case, the Buehlows’ claim is for lost time as a result of these proceedings. Although the Buehlows did not retain counsel, there is no doubt that they lost time and money as a result of this application.

[ 11 ] Although the Buelhows claim reimbursement for time lost as a result of the application, their material lacks detailed time each of them lost from work as a result of these proceedings. While I acknowledge the time each of them spent and the emotional energy each of them expended as a result of the application, I ask myself if it falls within the specific category as defined by the Court of Appeal. As mentioned above, the Court of Appeal in Fong v. Chan, stated, at paragraph 28, that all litigants suffer a loss of time when involved in litigation. Self-represented as well as other litigants do not recover for time they devoted to the case. The Buehlows are no different.

[ 12 ] In the cases which were released after Fong v. Chan, Superior Courts have been divided as to the necessity of proving that as a result of performing the work ordinarily done by a lawyer, the self-represented litigant forewent remunerative opportunities. While I was not referred to the caselaw, more recent cases support the necessity of maintaining the Fong v. Chan principles.

[ 13 ] In Mustang Investigations v. Ironside, 2010 ONSC 3444, 103 O.R. (3d) 633, Jennings J. for the Divisional Court found that the trial judge had erred in awarding costs to a self-represented litigant and emphasized that a self-represented litigant must prove an opportunity cost to be awarded costs. After referring specifically to Huard v. Hydro One Inc. (2002), 30 C.P.C. (5th) 164 (Master Dash) and Korhani v. Bank of Montreal (2002), 118 A.C.W.S. (3d) 626, Jennings J. stated, at paragraph 27:

As I have said, Master Dash, and several trial judges, seem to have interpreted Fong as saying that even in the absence of proof of an opportunity cost, one may assume that because the lay person was involved in the litigation preparing material that might otherwise be prepared by a lawyer, he or she should nevertheless be entitled to nominal costs. With great respect to the Master and those judges, I’m unable to find that the language in Fong permits an award to be made without the self-represented litigant demonstrating that, as a result of the lawyer-like work put in on the file, remunerative activity was foregone. Simply stated, no proof of opportunity cost, no nominal costs available.

[ 14 ] In the end, I cannot help but find that the Buelhows here acted as observers rather than as active participants, in the language of Fong v. Chan, while the other applicants actively, through counsel, participated in the proceeding. I find that neither the time spent by the Buehlows, their attendance, nor their oral submissions at the hearing advanced the case on behalf of the respondents.

[ 15 ] The Buehlows also claimed their disbursements which included travel, payment of costs to the Parkers to set aside a Default Judgment in these proceedings, and disbursements that involved the parties before the Landlord and Tenant Tribunal. Unfortunately, those costs which arose in another proceeding and not the one before me cannot be addressed.

[ 16 ] The only disbursements which I would allow are those which relate specifically to the action before me and money paid out or lost as a result. The disbursements which I would allow for travel and money paid out include:

Travel to the Hanover Police Station $3.99

Cheque for Parker $10.72

Travel to Walkerton Post Office $12.20

Payment to Parkers not recovered $450.00

Total $476.91

[ 17 ] I am of the view that I cannot reimburse them for travel to meet with counsel or to attend meetings related to the action.

[ 18 ] In the end, I find that the Buelhows have not demonstrated that they have done the work ordinarily done by a lawyer, or work for which a lawyer would have been paid in the conduct of this litigation. Their involvement was no different than the other litigants who were represented but not reimbursed for their loss of time.

Conclusion

[ 19 ] As a result, the Buehlows will be entitled to their disbursements of $ 476.91 and to be paid by the Applicants. Their claim for costs is otherwise dismissed.

KRUZICK J.

RELEASED: October 18, 2012