Court File and Parties
COURT FILE NO.: CV-11-427291
DATE: 20131023
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CYMA CONSULTING INC., Plaintiff
AND:
1780211 ONTARIO INC. ET AL, Defendants
BEFORE: CHIAPPETTA J.
COUNSEL:
Michael A Handler, for the Plaintiff
Amir Ebrahim Kohanbaba and Mohammad Hossein Kohanbaba,
self-represented
HEARD: In Writing
Endorsement
[1] On September 30, 2013, I dismissed the Plaintiff’s motion for summary judgment. I concluded that a trier of fact in the context of a trial proceeding with the benefit of viva voce evidence would be better equipped to resolve the conflict within the evidence including issues of credibility. The individual defendants, Mohammad Hossein Kohanbaba and Amir Ebrahim Kohanbaba, who were self-represented at the motion, seek a total of $21,605.60 as costs for the motion, inclusive of HST.
[2] A Bill Of Costs was provided wherein the amounts claimed for fees and disbursements are listed as follows:
Description
Hours
Rate
Cost ($)
Research
16.5
200
3300
Preparing Evidence
10.25
200
2050
Preparing responding Motion
19.5
200
3900
Preparing Factum
5.5
200
1100
Preparing Book of Authority
11
200
2200
Preparing, Serving, and filing Bill of Costs
5
200
1000
Print and Post
850
Legal fees
3940
Transportation
780
Sub-Total
19120
HST
2485.6
Grand-Total
21605.6
[3] In Fortunato v. Khan, 2013 ONSC 5654, para. 4 and 5 Stinson J. reviewed the circumstances wherein a judge may exercise his or her discretion to award costs to a self-represented litigant:
[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.
[4] In the present case, the individual defendants provided no evidence that either of them gave up remunerative activity to respond to the plaintiff’s motion. They are therefore not entitled to an award for costs calculated on the same basis as those of a litigant who was represented by counsel.
[5] In terms of disbursements, it would appear from a review of the Bill of Costs filed, that the individual defendants claim $850 in “print & post”. No back-up documents were provided however for the disbursements said to have occurred. In my view, disbursements were necessarily incurred by the individual defendants in response to this motion. Upon review of the materials served and filed, the amount of $850 as claimed is not reasonable. The materials served and filed suggest that a sum of $300 for disbursements is reasonable.
[6] Costs of the motion are therefore fixed in the amount of $300 payable forthwith by the plaintiff to the individual defendants.
[7] Finally, as noted by counsel for the plaintiffs, the individual defendants are entitled at present to represent only themselves and not the defendant corporation.
CHIAPPETTA J.
Date: ** October ** •• , 2013