COURT FILE AND PARTIES

COURT FILE NO.: BK 31-347546

DATE: 20130118

SUPERIOR COURT OF JUSTICE – ONTARIO
(BANKRUPTCY AND INSOLVENCY)

RE: IN THE MATTER OF THE BANKRUPTCY OF THOMAS PIRNER,

OF THE CITY OF TORONTO IN THE PROVINCE OF ONTARIO

BEFORE: JUSTICE NEWBOULD

COUNSEL:
John Legge, for Diane Pirner

Thomas Pirner, in person

ENDORSEMENT

[1] On December 24, 2012 I dismissed a motion by Diane Pirner that I recuse myself. Mr. Pirner has requested costs be paid to him of $5,845. Ms. Pirner requests that costs be denied to Mr. Pirner and instead that costs be allowed to her.

[2] Mr. Pirner is self-represented. In Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330, (C.A.), Sharpe J.A. made clear that a self-represented litigant should be awarded costs only if able to establish that he or she incurred an opportunity cost by foregoing remunerative activity. He 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 Chorley 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 foregoing 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. The trial judge is particularly well-placed to assess the appropriate allowance, if any, for a self-represented litigant, and accordingly, the trial judge should either fix the costs when making such an award or provide clear guidelines to the Assessment Officer as to the manner in which the costs are to be assessed. (underling added)

[3] In this case, Mr. Pirner states in his written argument that the time spent by him inhibited him from opportunities to earn remuneration or engage in a broader job search or training. He stated that he is working with Works Canada to upgrade his skills and offer basic work such as possible student tutoring or mediation and arbitration services. He asked that his time spent, which was considerable and included work that a lawyer would ordinarily do, be set at $70 as hour as his “remuneration history goes from a low of $50 hour for mediation and arbitration work (training received at Humber College and University of Waterloo) to $75 an hour for systems or business tutoring and was earning $100 an hour in project management up to 2010.”

[4] It is not clear at all that during the time Mr. Pirner worked on the recusal motion he forwent any remuneration that he would otherwise have earned. I take from his statements that he has not. He has provided no details of any particular contract he had, or had to turn down, because of the work he did on the motion. In the circumstances I cannot make any order compensating him for his time. He has incurred expenses of $485 that are properly payable.

[5] Mr. Pirner stated that Mr. Klotz spent three hours assisting him. Mr. Klotz was previously his solicitor before he ceased acting by reason of non-payment of fees. However Mr. Pirner states that Mr. Klotz assisted him out of his own good will. In my view Mr. Pirner is entitled to be awarded costs of $250 per hour for three hours, totaling $750 inclusive of HST, on the proviso that it is paid to Mr. Klotz by Mr. Pirner upon receipt of that amount from Mrs. Pirner.

[6] Ms. Pirner has contended that no amount be paid to Mr. Pirner, essentially on the basis that she contends that at the previous attendance leading to my direction at the 9:30 a.m. case conference on October 24, 2012, which was the subject of the recusal motion, Mr. Pirner misled me as to whether Ms. Pirner had fully complied with her obligations regarding an earlier order of June 8, 2012. She contends that Mr. Pirner be sanctioned by refusing him an award of costs.

[7] I decline to act on this request of Ms. Pirner. Even if Mr. Pirner had misled me, that would have been no grounds for me to recuse myself. What the issue was so far as the case conference was concerned was whether a reasonably informed person aware of all of the circumstances could objectively conclude that what I did at the October 24, 2012 9:30 a.m. conference could give rise to a reasonable apprehension of bias on my part. While Mr. Legge raised on the recusal motion the allegation that Mr. Pirner had misled me on the earlier case conference, it was not necessary for me to come to any conclusion on it and I did not.

[8] Ms. Pirner also contends that at the hearing of the recusal motion Mr. Pirner submitted that there was no issue about a patent. For some time now, Mr. Legge has asserted that Mr. Pirner is the owner of a patent and presumably that will be an issue at any hearing for the discharge of Mr. Pirner from bankruptcy. Mr. Legge raised that issue on the recusal motion, but why he did so was not apparent as it was not relevant as to whether I should recuse myself. Mr. Pirner said at the hearing, as he and Mr. Klotz has previously said on his behalf, that while his name is stated to be the inventor of the subject of the patent, he is not the owner. What Mr. Pirner said in argument on the recusal motion is of course not any evidence and any issue regarding the patent rights will have to be decided on the evidence, not on any unsworn statements.

[9] In her cost submissions, Ms. Pirner has filed an affidavit attaching a patent application by Starplex Scientific Inc. dated August 23, 2011 in which Mr. Pirner is named as the inventor of the product. She swears that Mr. Pirner did not disclose any patent until her solicitors and she found reference to patents by on-line research. She fears he may have substantial royalty income that is being concealed. Mr. Legge contends that Mr. Pirner has not disclosed the nature and extent of his relationship with Starplex and that it should be assumed that he has been deliberately hiding a financial interest in the patents. He contends that Mr. Pirner should be sanctioned by an award of costs to Ms. Pirner in an amount to be fixed after completion of the discharge hearing.

[10] I am not privy to what Mr. Pirner or his previous solicitor Mr. Klotz disclosed to Mr. Legge, nor to what requests for information have been made. I do know from statements made in court when I was first involved in this matter that Mr. Legge asserted that Mr. Pirner was the owner of one or more patents and Mr. Klotz responded that after Mr. Legge had raised the issue with him he told Mr. Legge that Mr. Pirner was named as inventor but was not the owner.

[11] I am in no position to hold that Mr. Pirner has or has not any financial interest in any patent. That must await further proceedings, presumably at least on the discharge hearing, when evidence will have to be led. As I stated, what Mr. Pirner said at the recusal motion was not evidence. In any event, it is not an issue that was relevant to the motion that I recuse myself. In the circumstances, I decline to make a cost order in the recusal motion in favour of Ms. Pirner.

[12] An order will go that Ms. Pirner pay to Mr. Pirner within 30 days costs of $1,235 and that $750 of these costs is to be paid by Mr. Pirner to Mr. Klotz.

Newbould J.

DATE: January 18, 2013