Court File and Parties

Court File No.: CV-10-411655
Date: 201309011
Superior Court of Justice – Ontario

Re: NICOLO FORTUNATO, Plaintiff

And:

ALI AFANDY, ABID HASHMI, SHAHNAWAZ ISHAQUE, SHAH JAHAN KHAN, ANVER KARIM, A.J. KARIM, GERTRUDE ARMBRUST, Defendants

Before: Stinson J.

Counsel:
Nicolo Fortunato, acting in person
Shah Jahan Khan, acting in person

Heard: By way of written submissions

ENDORSEMENT AS TO COSTS

[1] This endorsement concerns the costs claim of the plaintiff Nicolo Fortunato arising from his successful claim against the defendant. In my reasons released July 19, 2013, I awarded Mr. Fortunato damages of $30,000. In para. 79 of my reasons I stated as follows:

[79] In relation to costs, I encourage the parties to resolve that issue. If they cannot, they may make written submissions as follows:

(a) Mr. Fortunato shall serve his bill of costs on Mr. Khan, accompanied by written submissions within fifteen days of the release of these reasons.

(b) Mr. Khan shall serve his response on Mr. Fortunato within fifteen days thereafter.

(c) Mr. Fortunato shall serve his reply, if any, within ten days thereafter.

(d) In all cases, the written submissions shall be limited to three pages, plus bills of costs. I expressly invite Mr. Khan to submit the bill of costs he would have tendered on Mr. Fortunato if he had been successful in the action.

(e) I direct Mr. Fortunato to collect copies of all parties' submissions and arrange to have a package containing all submissions delivered to me in care of Judges' Administration, Room 170 at 361 University Avenue, Toronto, as soon as the final exchange of materials has been completed. To be clear, no materials should be filed individually: rather, Mr. Fortunato will assemble a single package for delivery as described above.

[2] As required by para. 79(a), Mr. Fortunato served written submissions as to costs on Mr. Khan on July 25, 2013. Mr. Khan has not yet responded. In the face of that non-response, Mr. Fortunato has filed with the Court his submissions only, according to para. 79(e). This decision is therefore based on his submissions alone.

[3] Mr. Fortunato seeks fees of $10,500, based on 300 hours at $35 per hour. He also seeks disbursements of $629.

[4] In relation to Mr. Fortunato's claim for fees, self-represented parties such as the plaintiff 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: see Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330 at paras. 25-26 (C.A.) and Mustang Investigations v. Ironside (2010), 2010 ONSC 3444, 103 O.R. (3d) 633 at paras. 23 and 27 (Div. Ct.).

[5] The foregoing cases confirm 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.

[6] In the present case, Mr. Fortunato provided no evidence that he gave up remunerative activity to pursue his claim. Indeed, he is retired, and not generally engaged in remunerative activity. As such, he suffered no income loss. As a consequence, he is not entitled to any award for fees.

[7] In relation to disbursements, the expenses claimed are reasonable. I therefore allow the total sum of $629 for disbursements.

[8] In the result, I fix Mr. Fortunato's costs at the all-inclusive sum of $629 and order Mr. Khan to pay that sum, in addition to the damage award of $30,000.

[9] Mr. Fortunato also filed a written submission regarding the alleged non-fulfillment of the terms of his settlement with one or more of the other defendants. This costs endorsement is not the appropriate place to address those concerns. If Mr. Fortunato wishes to enforce the terms of that settlement agreement, he may seek to do so pursuant to the Rules of Civil Procedure, including rule 49.09, if applicable.

Stinson J.

Date: September 11, 2013