F U R T H E R C O S T S E N D O R S E M E N T

COURT FILE NO.: 11-106 (Owen Sound)
DATE: 20121213
SUPERIOR COURT OF JUSTICE - ONTARIO

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

nature of the claim

[ 1 ] Following the release of my Costs Endorsement in this matter, the Respondents, Scott Buehlow and Tammy Buehlow (“Buehlows”) requested an opportunity to provide a reply to the Applicants’ submissions notwithstanding that the time had expired for them to do so.

Background

The Applicants sought costs and made submissions that were dated July 12, 2012. The Applicants responded with Submissions dated August 31, 2012. On September 6, 2012, an extension of time for reply was conveyed to the Buehlows. My endorsement was released on October 18, 2012, after receiving no reply from the Buehlows.

[ 2 ] On October 24, 2012, by email to the court, the Buehlows requested an opportunity to reply and to make further submissions, which I permitted them to do. On October 24, 2012, the Buehlows filed a Reply entitled “Rebuttal to Aug.31, Parkers Reply to the Buehlows’ Costs Submission (Prepared by John Kirby)”. I have now reviewed their reply.

[ 3 ] The nature of the main application was for a determination as to the validity of four leases, including one of the Buehlows’ leases. The application was heard on November 24, 2011.

[ 4 ] The Applicants (the Parkers) were at all times represented by counsel. The other respondents – Timothy Yundt, Sara Barnhum, James Ecsedi, Tammy Ecsedi, Donna Bartlett, and Stephen Bartlett – were represented by counsel. The Respondents Scott Buehlow and Tammy Buehlow appeared in person. The Application against the respondent, Beverly Lewis Watts, was discontinued.

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

Analysis

[ 6 ] In making my costs award, I was mindful of the provisions of rule 57.04(4) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, which now expands the discretion of the court to award costs to a party acting in person. The Buehlows’ reply referred me to the leading case in Ontario, Fong v. Chan (1999), 1999 2052 (ON CA) , 46 O.R. (3d) 330, a decision of our Court of Appeal which states, at para. 26, that “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.”

[ 7 ] In applying that decision, I was mindful of the Buehlows’ “Description of Duties” that detailed the time they lost from remunerative activities and from work. However, I was unable to characterize the work that the Buehlows were engaged in, as accounted for in their July 12, 2012 submissions, as work that a lawyer would ordinarily do. As is often the case, they attended the application as observers and interested litigants. This case and their cause was carried by their co-litigants who were represented by counsel. Indeed, the Buehlows were interested parties who allowed their co-respondents to carry the ball. At the end of counsels’ submissions, knowing that the Buehlows were in court, I asked them if they wished to add anything. Their subsequent oral submissions did not assist me, as they simply repeated the position expressed by counsel for the other Respondents.

[ 8 ] The Buehlows take the position that it is “difficult to accept that Mr. Kirby’s (counsel for the Applicant) billable activities are considered” if they are not also entitled to costs. However, Mr. Kirby’s work is the work of counsel. In contrast, the time the Buehlows lost cannot be qualified as “work that would ordinarily be done by a lawyer”. Litigants who hire counsel lose time in litigation and must then also bear the financial cost of their lawyer. The work and review of documents which the Buehlows argue in their Description entitles them costs relates to work product by lawyers for the other Respondents, not to work done by them.

[ 9 ] In the reply, the Buehlows took issue with the statement made by the Applicants’ counsel that their claim for this one day hearing was excessive in any case. This was not a finding of the court. While I take no issue with their accounting of their time lost, I could not characterize it so as to compensate them for the considerable time they (and the other individuals) personally lost. In their reply, the Buehlows referred to the Applicant’s offer to them to settle costs. Our courts encourage settlement of issues including costs. The offer made, now in hindsight, should have been accepted by them. The offer to settle these costs, which was not known to me, exceeded my award.

[ 10 ] The Buehlows described themselves as “unwilling participants” in this action commenced by the Applicants against them. Like the other respondents, they were clearly thrown into this action against their will. In the end, however, they were successful. The success was based on the facts and the law as put forward by counsel for the other respondents and from which they benefited.

[ 11 ] If every successful litigant was able to recover costs for loss of personal time in litigation in addition to the costs paid to counsel it would take us down a slippery slope and only add to the already out of reach cost of court proceedings. While I recognize that the Buehlows were unwilling participants, I find I cannot compensate them beyond the award made.

[ 12 ] Having read and now considered the reply of the Buehlows, my conclusion and decision of October 18, 2012 remains unchanged.

KRUZICK J.

RELEASED: December 13, 2012