ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-13-0038
DATE: 2013-10-04
B E T W E E N:
DANIEL RAYMOND GIBSON
Martha Petryshyn , for the Applicant
Applicant
- and -
JENNIFER ANNE DUNCAN
Unrepresented
Respondent
HEARD: October 2, 2013
at Thunder Bay, Ontario
Mr. Justice D.C. Shaw
Decision On Costs
[1] This is a decision on costs of a motion brought by the applicant, Daniel Raymond Gibson, for the sale of the matrimonial home prior to trial under the Partition Act. The motion was dismissed, with costs to the respondent, Jennifer Anne Duncan. Ms. Duncan was not represented by a lawyer. She prepared for and argued the motion herself. The question is, to what costs is Ms. Duncan entitled as an unrepresented party.
[2] Ms. Duncan presents a summary of the work that she did and the time spent on the motion. Her preparation, which includes reviewing documents, research, correspondence and drafting her responding affidavit, with exhibits, totals 42 hours. She also shows 5 hours for attendance on the motion. She seeks an hourly rate of $150.00 for 47 hours, totalling $7,050.00. She also claims disbursements of $177.00 for photocopying, binders, paper, tabs and labels.
[3] For comparison purposes, counsel for Mr. Gibson files a Bill of Costs, showing 8 hours of preparation for the motion, 3.5 hours for attendance on the motion and .4 hours for work after the motion. Counsel’s solicitor-client rate is shown at $275.00 per hour, for a total fee of $3,272.50 plus disbursements of $25.00. Counsel has 26 years of experience.
[4] Ms. Duncan is employed by the RCMP as a criminal intelligence analyst, seconded to Nishnawbe Aski Police Services in Thunder Bay. She is paid $3,666.16 per month. During submissions on costs, she advised that she took one vacation day from her work to prepare her responding motion materials.
[5] In her submissions on costs, Ms. Duncan filed an affidavit setting out her position. She filed three cases, namely, Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330 (C.A.); Cassidy v. Cassidy, 2011 ONSC 791; and Jordan v. Stewart, 2013 ONSC 5037.
Decision
[6] I do not question that Ms. Duncan spent the time on this motion as set out in her summary. Although the time, if docketed by a lawyer, would be regarded as highly excessive, I accept that, as a lay person, Ms. Duncan needed to educate herself on procedure and on substantive law and that it would have been difficult to draft her affidavit.
[7] The issue of costs in this case is governed by two decisions, Fong v. Chan (supra) and Mustang Investigations v. Ironside, 2010 ONSC 3444 (Div. Ct.). These are both appellate decisions, from the Court of Appeal and from the Divisional Court, respectively.
[8] The Court of Appeal decision in Fong v. Chan is the leading authority on costs to be awarded to unrepresented parties. At paras. 25-26, Sharpe J.A. stated:
“25. I would add that nothing in these reasons is meant to suggest that a self-represented litigant has an automatic right to recover costs. The matter remains fully within the discretion of the trial judge, and as Ellen Macdonald J. observed in Fellows, McNeil v. Kansa, 1997 12208 (ON SC), [1997] O.J. No. 5130, there are undoubtedly cases where the self-represented litigant’s conduct of the proceedings is inappropriate. The trial judge maintains a discretion to make the appropriate costs award, including denial of costs.
- 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, 13 Q.B.C. 872, 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 law 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.
[Emphasis added.]
[9] In Mustang Investigations v. Ironside, the Divisional Court, heard an appeal from a decision of the motions judge who awarded an unrepresented litigant $20,000.00 for fees, holding that “… if the self-represented litigant demonstrates that he or she did the work ordinarily done by a lawyer, then they will have justified receiving an award of costs”. The Divisional Court found that the motions judge erred by ignoring the proviso in Fong v. Chan regarding an opportunity cost and, further, erred in awarding the unrepresented litigant the partial indemnity costs that could reasonably be expected to have been paid to a lawyer had one been retained by the successful unrepresented litigant.
[10] At para. 23, Jennings J., speaking for the Divisional Court in Mustang Investigations stated:
“In my opinion, the language used by Sharpe J.A. is clear. First, to receive costs a lay litigant must demonstrate that he or she devoted time and effort to do the work ordinarily done by a lawyer and that as a result he or she incurred an opportunity cost by foregoing remunerative activity. Second, if an opportunity cost is proved a self-represented litigant should only receive a moderate or reasonable allowance for the loss of time devoted to preparing and presenting the case.”
[11] Jennings J. referred to a number of decisions that he viewed as having wrongly applied Fong v. Chan. At paras. 27-28 he stated:
“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.
It may be that in some cases an injustice will result, to which I would make two responses:
It is difficult to see any injustice in compensating someone for a loss not incurred and;
Regardless, the principle of stare decisis does not permit this court, or judges sitting in motions, or Masters, to modify a decision of the Court of Appeal.”
[12] Jennings J. found that there was nothing in the case before him that would permit the motions judge to infer a loss of remuneration. As a result, the Divisional Court struck the award of $20,000.00 for costs, as “plainly wrong”, and did not allow the unrepresented litigant any costs, apart from disbursements which were not in dispute.
[13] Cases subsequent to Mustang Investigations have applied the principle that unless there is proof of an opportunity cost, no costs will be ordered. These decisions include: Glencairn Gold v. Canadian Committee to Combat Crimes Against Humanity, 2010 ONSC 4282; Tiago v. Meisels, 2012 ONSC 5090, Cohlmeyer v. Ffrench, 2012 ONSC 929; Charendoff v. McLennan, 2012 ONSC 7241; Fortunato v. Khan, 2013 ONSC 5654; and, from the Northwest Region, the decision of Pierce J. in Burns v. Sohi, 2013 ONSC 2908.
[14] Fong v. Chan and Mustang Investigations are appellate decisions which are binding on this court. To the extent that the cases cited by Ms. Duncan conflict with these appellate decisions, the appellate decisions must prevail.
[15] I accept that Ms. Duncan devoted considerable time and effort to do the work that would ordinarily be done by a lawyer retained to conduct the litigation. However, in order to be awarded what Jennings J. described in Mustang Investigations as “nominal costs” Ms. Duncan must also show that as a result of the work she incurred an opportunity cost by giving up remunerative activity.
[16] Although Ms. Duncan did not provide an affidavit proving that she lost remunerative activity, she did say in response to my questioning that she had taken a vacation day to prepare for the motion. Counsel for Mr. Gibson did not take issue with this answer and I am prepared to accept that Ms. Duncan did lose a day of vacation in connection with the motion. I am prepared to regard this as an opportunity cost for which she should receive a moderate allowance. In my view, a reasonable, moderate allowance for this opportunity cost is $250.00.
[17] With respect to the disbursements claimed, if items such as binders, paper, tabs and labels had been claimed by counsel, they would not be allowed because they would be properly part of the lawyer’s overhead, to be subsumed in the lawyer’s hourly rate. However, Ms. Duncan does not have an hourly rate that is calculated to include overhead. I will therefore award her her disbursements of $177.00 as claimed.
[18] I wish to add two comments. Firstly, although I observed that the preparation time was excessive if done by a lawyer, I am satisfied that Ms. Duncan prepared her case to the best of her abilities as a lay person. She also conducted herself properly and respectfully in her submissions. My award of costs is based on the binding authority of the Court of Appeal and the Divisional Court. It is not intended to be critical of Ms. Duncan’s conduct. Secondly, if Ms. Duncan had been represented by counsel, a costs award in the range of $1,500.00 to $3,000.00 would reasonably have been expected for this motion. Costs in the range of the $7,050.00 claimed by Ms. Duncan would not have been a reasonable expectation.
[19] An order shall go that Mr. Gibson shall pay to Ms. Duncan, within 30 days, costs of the motion fixed in the sum of $250.00 for opportunity costs and $177.00 for disbursements, for a total of $427.00.
___”original signed by”
The Hon. Mr. Justice D.C. Shaw
Released: October 4, 2013
COURT FILE NO.: FS-13-0038
DATE: 2013-10-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DANIEL RAYMOND GIBSON
Applicant
- and –
JENNIFER ANNE DUNCAN
Respondent
DECISION ON COSTS
Shaw J.
Released: October 4, 2013
/mls