CITATION: Asselin-Normand v. King Edward Realty, 2015 ONSC 2876

COURT FILE NO.: CV-14-510449 and CV-14-510450

DATE: 20150601

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: JONATHAN Asselin-Normand, Plaintiff

AND:

KING EDWARD realty, Defendant

AND RE: JONATHAN Asselin-Normand, Plaintiff

AND:

ESPARTEL INVESTMENTS LIMITED, Defendant

BEFORE: Stinson J.

COUNSEL: Jonathan Asselin-Normand, acting in person

Natalie Schernitzki, for the defendant King Edward Realty

David Brooker, for the Defendant Espartel Investments Limited

HEARD at Toronto: by written submissions

ENDORSEMENT AS TO COSTS

[1] This decision addresses the parties’ written submissions regarding the costs of two parallel motions in which the defendants successfully sought an order staying these proceedings or in the alternative appointing the Children’s Lawyer as litigation guardian for the plaintiff, on the ground that the plaintiff was a minor when he commenced the litigation.

Background

[2] At the time the actions were commenced and at the time the motions were argued, the plaintiff was 17 years of age, having been born on February 3, 1997. According to the statements of claim filed by him, the defendants operate hotels in Toronto. In August 2004, the plaintiff telephoned the defendants’ hotels to make a room reservation. When the hotels learned that he was 17 years old they refused to permit him to stay at their hotels because they had minimum age policies of 18 and 21 years. Subsequently, the plaintiff issued the statements of claim in these two actions without naming a litigation guardian, seeking damages arising from the allegedly wrongful conduct on the part of the defendants in denying him lodging.

[3] The defendants moved to stay the actions on the ground that no litigation guardian had been appointed to represent the plaintiff, as required by rule 7.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In response, the plaintiff relied on the fact that, under the law of Quebec, and specifically Article 168 of the Québec Civil Code, he was an emancipated minor, and thus entitled to act as if an adult in law.

[4] In my ruling on the motions, released December 12, 2014, I stayed the two actions until February 13, 2015 (the plaintiff’s 18th birthday) or until a litigation guardian was appointed in both actions, whichever first occurred. I did so on the ground that the plaintiff was still a minor and was therefore considered to be a person under a legal disability. I ruled that neither the English common law nor Ontario recognizes or allows a court to issue a decree of emancipation, and thus the Quebec decree did not alter the plaintiff’s legal status in Ontario.

[5] The successful defendants asked for costs. I declined to entertain that request at the time, given that they had just argued (and I had ruled) that the plaintiff lacked legal capacity. Now that the plaintiff has turned 18 and has attained the age of majority, the defendants have renewed their request for costs. In a reversal of his prior position, the plaintiff asserts that no costs award should be made on the ground that, at the time the motions were argued, he lacked legal capacity.

Analysis

Introduction

[6] In R. v. Hill, 1986 58 (SCC), [1986] 1 S.C.R. 313, Dickson C.J.C. examined the rationale for limiting the rights of persons under the age of majority, and concluded as follows:

76. … [I]n a variety of different contexts, the law has recognized a general incapacity in children to act in a fully rational and responsible manner and has accordingly refrained from the rigorous application to them of the principles of equality and individual responsibility applied to adults.

[7] This recognition by the law that minors lack legal capacity has led to the longstanding equitable practice developed by the Court of Chancery, and continued under the Rules of Civil Procedure today, to require minors to be represented in civil litigation by a next friend or guardian ad litem (now simply referred to as “litigation guardian”). In turn, the courts award costs against the litigation guardian of the unsuccessful party under disability, or in the absence of a litigation guardian, against the lawyer representing the party under disability. An exception to this practice has been applied in cases where the estate of the party under disability is before the court – in some of these cases, the court has ordered the payment of costs out of the minor’s share of the estate.

[8] In this respect, the case at bar appears unprecedented. The plaintiff was seventeen years of age at the time he commenced the actions, but was neither assisted by a litigation guardian nor represented by counsel. Thus the court must decide whether an unsuccessful party under disability can be made liable for costs personally despite lacking the capacity to commence, continue or defend legal proceedings and despite being unrepresented and unassisted.

Submissions of the parties

[9] The defendants focus their submissions on why costs should be awarded against the plaintiff. Both point to the result of the motion, the principle of indemnity, the importance of the issues, the complexity of the proceedings, the reasonable expectations of the parties, and the conduct of the parties. Although the issue was raised during the hearing of the motion and although the court requested submissions on the point from the moving parties, neither defendant commented on whether an unassisted and unrepresented party under disability can incur liability for legal costs personally.

[10] The plaintiff makes submissions on the principle of indemnity, the importance of the issues, the expectation of the parties, the conduct of the parties, unnecessary steps taken, access to justice, and the principle of parens patriae. The plaintiff’s primary submission, however, is that as a party under disability during the motions, he should not be ordered to pay any costs arising therefrom to any of the defendants.

The Rules of Civil Procedure

[11] Rule 7.01(1) of the Rules of Civil Procedure, provides that unless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian. As a minor, the plaintiff was a party under disability when he attempted to commence his action and when he responded to the defendants’ motions to stay: see the definition in rule 1.03.

[12] Indeed, the defendants took the position on the argument of the motions, and maintain in their cost submissions now, that the plaintiff was a party under disability and could not commence, continue or defend a proceeding without a litigation guardian or a judgment allowing him to do so. In his cost submissions, the plaintiff concedes that he was a party under disability at all relevant times.

Costs in cases with litigation guardians

[13] The Rules do not contemplate cost awards against minors personally. Instead, while not a party, the litigation guardian stands in the same position as any other litigant and generally receives or pays costs personally: Smith et al. v. Mason et al., [1897] O.J. No. 205, 17 P.R. 444 (C.A.); Jones v. Lewis (1847), 1 DeG & Sm 245, 63 ER 1052; MacMaster (Litigation Guardian of) v. York (Regional Municipality), [2000] O.J. No. 1404 (C.A.); Cameron (Litigation Guardian and Trustee of) v. Louden, [2002] O.T.C. 659, 117 A.C.W.S. (3d) 28.

[14] Guaranteeing costs has been cited as one of the primary reasons for requiring infant plaintiffs to sue through a next friend: see Fidelity Trust Co. v. Buchner (1912), 1912 400 (ON SC), 26 O.L.R. 367; Miller v. Decker (1956), 1956 626 (BC CA), 20 W.W.R. 388 (B.C.C.A.) at paras. 12-24; Lament v. Kirkpatrick, [1962] O.W.N. 8, [1963] O.J. No. 209. Indeed, rule 7.02(2)(h) requires a litigation guardian to file an affidavit “acknowledg[ing] that he or she has been informed of his or her liability to pay personally any costs awarded against him or her or against the person under disability.”

[15] The involvement of a litigation guardian is not merely for purposes of addressing the issue of costs. As noted in Holmested and Watson: Ontario Civil Procedure, (Toronto: Carswell, 2007), vol. II, at 7-13, the purpose of the rule requiring a litigation guardian is to “…offer protection to the party, the other parties and the court itself…by ensuring that a competent person with a duty to act for the party’s benefit...is there to instruct counsel and take steps in the litigation on the party’s behalf.” See also the discussion on this subject in 626381 Ontario Ltd. v. Kagan, Shastri, Barristers & Solicitors, 2013 ONSC 4114, at paras 16 and 17.

[16] Likewise, as Cranworth L.J. noted in response to submissions by counsel that a next of friend without liability for costs was a contradiction in terms, “though a next friend is in general liable to costs, ‘next friend’ does not mean a person to answer costs, but a person who undertakes to conduct the suit on behalf of the infant”: Lindsay v. Tyrrell (1857), 2 De G. & J. 7. See also Roberts v. Coughlin et al. (1898), 18 P.R. 94.

[17] Similarly, in Scott v. Niagara Navigation Company, [1893] O.J. 245, 15 P.R. 409 at p. 411 (H. Ct. J. P. C.), aff’d (1893), 15 P.R. 455 (H. Ct. J. Ch. Div.) Boyd C. stated that

[t]he primary object in requiring that an infant sue by next friend, is not that the defendants may have security for costs, but that there may be some one before the Court to answer for the propriety of the action, and through whom the Court may compel obedience to its orders. So that, when the natural guardian of the infant is a pauper or in an insolvent condition, the Court will sanction such a person undertaking to conduct litigation on behalf of the infant, lest any other rule might amount to a denial of justice to the children of poor persons: Daniells Chancery Practice, 5th ed. pp. 37 and 73.

[18] Thus, while the norm is for a litigation guardian to be made liable for the cost consequences of the litigation, responsibility for costs is not the primary purpose for the rule requiring a litigation guardian; rather, the rationale for the requirement includes the need for a competent person who can instruct counsel, thereby protecting the parties and the court.

Exception to the rule

[19] As noted above, there does seem to be an exception to the rule that the litigation guardian only is answerable for costs. Specifically, courts have ordered costs to be paid against the estate of a party under disability: Morris et al. v. Wabash Railway Company et al., 1947 66 (ON CA), [1947] O.R. 877, [1948] 1 D.L.R. 197; Socha (Public Trustee of) v. Millar, [1995] O.J. No. 371, 53 A.C.W.S. (3d) 764 (Gen. Div.). In Lipsett v. Perdue (1898), 18 O.R. 575, 5 R.F.L. Rep. 296 (C.A.), for example, Rose J. observed that while “[a]t law, it appears that an infant defendant might be made liable for costs…[i]n equity, the practice has certainly not been to give costs against an infant personally … although they have frequently been ordered paid out of the infant’s share of an estate before the Court.” However, the infants in those cases were not unassisted and unrepresented. The proceedings were conducted properly and in good faith by the infants’ litigation guardians. Accordingly, they have little bearing on the issue in this case. Further, in this case there is no estate before the court.

Reimbursing litigation guardians

[20] While costs are generally not awarded against parties under disability personally, courts have long held that litigation guardians can seek reimbursement from the parties under disability for whom they act: Smith et al. v. Mason et al., supra; Rooney et al. v. Jasinski, 1952 115 (ON CA), [1952] O.R. 869, [1953] 1 D.L.R. 225 at paras. 19-24. In effect, rule 57.06(2) codifies this jurisprudence, allowing a litigation guardian who has been ordered to pay costs to recover them from the person under disability for whom she has acted, unless the court orders otherwise.

[21] As Justice Bird of the British Columbia Court of Appeal stated in Miller v. Decker, 1956 626 (BC CA), [1956] B.C.J. No. 74, 20 W.W.R. 388 (C.A.):

Upon consideration of the authorities cited by counsel as well as numerous others which I have examined since the argument, there is no doubt in my opinion that one who as next friend of an infant brings a motion on his behalf thereby becomes primarily liable for payment of defendant’s costs if the action fails – this apart from consideration of any right which the next friend may have by the infant for payment so made since that issue does not arise here.

[22] Unfortunately, aside from background, the right of indemnity of the litigation guardian by party under disability does little to clarify the issue of costs I am considering.

Costs in cases without litigation guardians

[23] What about cases commenced by parties under disability without the support of a next friend or litigation guardian? There are very few such cases – and almost no modern ones.

[24] In Fernée v. Gorlitz, [1915] 1 Ch. 177, 84 LJ. Ch. 404, for example, the court held that a solicitor who commenced an action on behalf of an infant by her next friend, who was also an infant, was held personally liable for costs incurred by defendants in defending the action.

[25] Likewise, in Kennedy v. Kennedy (1959), 1959 297 (BC SC), 16 D.L.R. (2d) 604, 27 W.W.R. 295, the British Columbia Supreme Court held that without a next of friend, there is no one to give authority for the commencement of the suit, and that when an action or a suit is started without authority, the solicitor who commences the action should be responsible for the costs of the application to set aside or dismiss the proceedings. The court did not award costs against the infant petitioner.

[26] In Hildebrand v. Franck, 1922 129 (SK CA), [1922] 3 W.W.R. 755, 16 Sask L.R. 269, the Saskatchewan Court of Appeal awarded costs against the solicitor given that the respondents were entitled to costs, the appellant infant was not liable and her mother was not qualified to be a next friend.

Conclusion

[27] While nothing in the Rules of Civil Procedure explicitly prohibits the court from exercising its broad discretion to award costs against parties under disability, in my view, the above cases reveal an established practice of not awarding costs against parties under disability personally. Even in cases without litigation guardians, courts have been more inclined to award costs against the lawyer personally – usually on the grounds that their “client” lacked the authority to give instructions – than to order costs against the unsuccessful party under disability.

[28] Furthermore, the reason for appointing litigation guardians stems from the fact that parties under disability are incapable of conducting litigation. Because such parties are unable (and hence not permitted) to advance their own interests in the courts, they should not be held responsible for costs.

[29] What the defendants do not acknowledge in their costs submissions is that the prohibition against parties under disability maintaining legal proceedings is not a free-standing and arbitrary technicality. The defendants succeeded in arguing that the plaintiff lacked the capacity to commence legal proceedings, and in my view, they cannot now say that the plaintiff did, in fact, have legal capacity, albeit only enough to incur costs for his actions. Moreover, as noted above, the defendants have failed to provide any case law or legal justification in support of such a position.

Disposition

[30] For these reasons, I conclude that no order as to costs in favour of the defendants may be made in relation to the motions heard on December 12, 2014.

Stinson J.

Date: June 1, 2015