ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 6278/11 and 6274/11(Sarnia)
DATE: 20121115

BETWEEN:

Lorne Bion Goetz Plaintiff – and – Stephen Goetz and Kevin Goetz Defendants

Lorne Bion Goetz, acting in person

Stephen Goetz, acting in person
Kevin Goetz, acting in person

COSTS

Campbell J.:

[ 1 ] My decision in this matter was released August 17, 2012. At the end of that decision I provided that written submissions for costs could be made. The cost submissions were not to exceed six pages.

[ 2 ] I received a document entitled Costs Submission of the Defendants, dated September 11, 2012. It appears to be a joint submission of both Kevin Goetz (“Kevin”) and Stephen Goetz (“Steve”). I received the submissions of Lorne Goetz (“Lorne”) which are dated September 11, 2012.

[ 3 ] The defendants seek costs and deny the plaintiff is entitled to costs. The plaintiff seeks costs and denies that the defendants are entitled to costs.

Background

[ 4 ] This matter was heard over six days. Evidence was heard over four of those days. At issue was the “passing of accounts” as ordered by Donohue J. in his decision dated November 22, 2010.

[ 5 ] I noted in my decision that the accounts as presented were not in compliance with the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. The parties agreed and the matter proceeded as a review of the transactions conducted by the plaintiff Lorne and a review of the two transactions completed by Kevin.

[ 6 ] This matter has a moderately complex factual history. The facts were reviewed extensively in my August 17, 2012 decision. I will refer briefly to the facts in the analysis portion of this endorsement.

Position of the Parties

[ 7 ] The defendants utilize cost submissions to once again underline an historic and ongoing family dispute. They do, however, seek fees of $12,354.75 and disbursements of $24,133.95 together with HST of $1,258.22. In addition, they request that the plaintiff re-pay the estate approximately $11,000. This amount, they say, I should order payable by the plaintiff and refer me to the order of Desotti J. made August 24, 2012. As I interpret their submissions the defendants argue that the entire proceeding resulted from the plaintiff’s intransigence. Therefore they should receive their full indemnity costs and the plaintiff should receive nothing.

[ 8 ] Most of the plaintiff’s submissions are directed to the issues raised in the trial. He also uses the submissions to criticize his previous counsel. He disputes the defendants’ allegations that they should be reimbursed for their lost opportunity to earn employment from income and that the substantial disbursements incurred for work done by OVID Consultants.

[ 9 ] At the conclusion of his submission, the plaintiff seeks costs of $23,892.06. He sets out the disbursements that he claims he incurred. Additionally, he seeks fees to reimburse him for 160 hours of time spent in dealing with the matter together with $9,810.59 paid to Dally & Elliott. There is no detailed or itemized account with respect to the latter.

Plaintiff’s request for Costs

[ 10 ] Fundamental to the determination of the plaintiff’s request for costs is a determination of success. Justice Donohue directed that the plaintiff pass his accounts. As has been previously stated, the massive amount of documents filed by the plaintiff were not accounts within the meaning of the Rules.

[ 11 ] I found the best way to give structure to a review of the plaintiff’s accounts was to deal with the defendants’ objections. Those objections, as outlined in Exhibits 3, 3A and 3B to the trial, dealt with specific transactions. The challenged amount in Exhibit 3 was significantly higher than the amount set out in Exhibit 3B.

[ 12 ] In the end, I found that the plaintiff should reimburse the estate $12,329.60. That was the dollar amount of transactions which I concluded the plaintiff had not established were appropriate.

[ 13 ] I also directed the balance of two Canadian Imperial Bank of Commerce (“CIBC”) accounts be paid to the executors of the estate of Leonard Goetz. That point was conceded early at the trial.

[ 14 ] Therefore, while the plaintiff’s accounts were not entirely approved, they were substantially approved. The manner in which the information was provided by the plaintiff did not make the review process as straightforward as it could have been. The two accountants called by the plaintiff did little to assist the court in considering the plaintiff’s accounts.

[ 15 ] In the end, it cannot be stated that either the plaintiff or the defendants were entirely successful in the positions they took with respect to the plaintiff’s accounts. I find the success as it related to a review of the plaintiff’s accounts was divided. In terms of dollar value, it would appear the plaintiff had substantially greater success. However, that conclusion would ignore the manner in which the accounts were presented.

[ 16 ] I have considered rule 57.01(1). Specifically, I have considered the result and the apparent lack of any offer to settle. I conclude the plaintiff is not entitled to his costs of his application. Later in this decision I will deal the issue of counsel fees paid to self-represented litigants. The plaintiff argued that the defendants provided no evidence to support their claim having regard to the principles set out in Fong and Chan (1999), 46 O.R. (3d) 330, [1999] O.J. No. 4600 (C.A.) (“ Fong ”). However, the plaintiff did not provide any evidence or information in that regard.

[ 17 ] After considering all of the factors I conclude the plaintiff is not entitled to costs of his application as claimed. However, I find the plaintiff is entitled to recover disbursements incurred as a result of having to pass his accounts.

[ 18 ] I would award recoverable disbursements as follows:

Photocopying $ 377.08
Stationary Supplies $ 72.78
Binding $ 183.04
Postage and Courier $ 153.23
Transcripts $ 130.90
Stamps $ 15.30

$ 932.33

Plus HST (13%) $ 121.20

Total $1,053.53

I have not included any amount for the services rendered by the plaintiff’s former counsel. There was no documentation to support that claim and I would not consider such an account as a disbursement in any event.

Defendants’ Costs

[ 19 ] The defendants’ application to pass accounts was entirely successful. That is, two transactions were required to be considered. The defendants’ position on both of those transactions was sustained. That, however, does not end the matter.

[ 20 ] The Court of Appeal confirmed that self-represented litigants may be entitled to counsel fees in appropriate circumstances. Sharpe J.A. noted that a self-represented litigant does not have an automatic right to recover costs. The matter remains within the discretion of the trial judge. He stated:

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 foregoing remunerative activity. As the early Chancery rule recognized, a self-presented lay litigant should receive only a “moderate” or “reasonable” allowance for the loss of time devoted to preparing and presenting the case.

[ 21 ] The Court of Appeal’s decision in Fong was referred to in Mustang Investigations v. Ironside et al. , 2010 ONSC 3444 , 103 O.R. (3d) 633 (“ Mustang ”). In that decision, the court found that to receive costs a self-represented litigant must demonstrate that he or she devoted time and effort to the work ordinarily done by a lawyer and that he or she incurred an opportunity costs as a result by foregoing remunerative activity.

[ 22 ] As recently as September 10, 2012, the Superior Court of Justice has dealt with this issue. In Tiago v. Meisels , 2012 ONSC 5090 , [2012] O.J. No. 4227, Stinson J. referred to Fong and Mustang . In para. 6 of that decision he stated:

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 .

[ 23 ] Here, the defendants have not provided any evidence of his lost opportunity. There is no evidence to justify either the 160 hours spent in dealing with this file or the hourly rate claimed. I have no doubt that the defendants did spend considerable time preparing and appearing in court. However, on the evidence and information I have I conclude that is time that they would have spent, in any event, as a litigant in these proceedings.

[ 24 ] While the decision in Fong and cases subsequent to it refer to the court’s general discretion, I am not prepared to award a fee for the time spent by the defendants. Given the manner in which the trial was conducted and the lack of evidence with respect to lost opportunity and remuneration I am not prepared to exercise my discretion in favour of the defendants.

[ 25 ] Dealing with the defendants’ specific reference to rule 57.01(1)(a-i) I would comment as follows:

a) The dollar value of the transactions made by Kevin are substantial, however, my decision concluded that the defendant was simply following the instruction of Leonard Goetz;

b) I have already commented on the issue of success;

c) The law on the matter was not particularly complex. The facts were complex mainly as a result of the manner in which the parties chose to deal with them;

d) The issues were important only to parties;

e) The conduct of all the parties tended to lengthen the proceeding as they all dealt into the relevant evidence and comments on each other;

f) The applications were necessary as a result of the decision of Donohue J.;

g) I do not believe the plaintiff can be criticized for questioning the transactions conducted by Kevin, considering the family dynamics, such challenge was predictable;

h) I do not find this factor to be significant in assessing costs in this situation.

[ 26 ] The defendants have claimed substantial disbursements incurred for OVID Consultants. I have no information about OVID Consultants. I do not know who or what they are; I have no specifics of the services they performed. I have an invoice void of detail. The defendants have not established the appropriateness of this disbursement.

[ 27 ] There are, however, some disbursements which I conclude were properly incurred and ought to be paid by the estate. I would summarize them as follows:

File application $ 181.00
Canada Post Express $ 87.92
Photocopying $ 388.80
Filing documents $ 313.00

$ 970.72

Plus HST (13%) $ 126.19

Total $1,096.91

[ 28 ] Defendants have also submitted to be reimbursed $11,000 as the result of the decision of Desotti J., made August 24, 2012. I have reviewed that order and do not conclude that it was intended that I determine the costs issue. However, I will request the court file from Sarnia be forwarded to me so that I can review the matter in its entirety before rendering a final decision on that issue.

“Original signed “ Campbell ”

Scott K. Campbell
Justice

Released: November 15, 2012

COURT FILE NO.: 6278/11 (Sarnia)

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Lorne Bion Goetz Plaintiff – and – Stephen Goetz and Kevin Goetz Defendants costs S.K. Campbell J.

Released: November 15, 2012