NEWMARKET

COURT FILE NO.: CV-12-111399-00

DATE: 20150731

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SUZANNE MILLER, Plaintiff

AND:

ROSETTA DEBARTOLO-TAYLOR, 2070935 ONTARIO INC. and

(JAMES) KEVIN TAYLOR, Defendants

BEFORE: THE HON. MADAM JUSTICE M.E. VALLEE

COUNSEL:
Ms. Miller, Self-Represented

M.L. Biggar, for the Defendants

HEARD: By written submissions

COSTS ENDORSEMENT

[1] Ms. Miller obtained judgment against Mr. Taylor on November 28, 2008 in action 07-CV-7252. She commenced this fraudulent conveyance action on October 3, 2012 after she learned that Mr. Taylor had taken steps to convey his interest in certain assets which otherwise would have been available to satisfy, in whole or in part, the 2008 judgment.

[2] During the course of this action, the defendants brought two motions, one to strike the plaintiff’s claim and another for summary judgment on the basis that the fraudulent conveyance action was commenced outside of the applicable limitation period. The defendants were unsuccessful on both motions. Costs were awarded to the plaintiff. The plaintiff then brought a motion for summary judgment on the action. She was successful. This endorsement deals with the costs related to that motion

[3] Aside from any appeal, the plaintiff’s success on her summary judgment motion concludes the action. Accordingly, the plaintiff is entitled to her costs of the action, except for the costs of the above-noted defendants’ motions as they were the subject of earlier orders.

[4] In my endorsement dated November 13, 2013 relating to costs of the defendants’ motion to strike the claim, I reviewed the jurisprudence regarding awarding costs to self-represented parties. The reader is directed to that endorsement. I will not repeat it here; however, I will set out the applicable principles. Costs are not to be awarded as if the self-represented party had counsel. If a party has counsel, costs may be awarded as partial reimbursement for legal fees actually incurred. Obviously, a self-represented party does not incur legal fees. Nevertheless, it is not desirable to immunize an unsuccessful party from a costs award simply because the other party is self-represented. If a self-represented party is employed and earning an income, she may incur a loss of opportunity cost if she spends time conducting the litigation that would otherwise have been spent earning an income. There must be some evidence of the income and the fact that it has decreased as a result of the litigation. It does not need to be detailed. Even if the evidence is thin, it may be sufficient to prove a loss of opportunity cost. If the loss is proved, a self-represented party is entitled to a reasonable allowance for the loss of her time to conduct the litigation.

[5] Ms. Miller requests that her costs be calculated using a rate of $150 per hour. This rate has a historical basis. Prior to the commencement of the fraudulent conveyance action, Mr. Taylor made an assignment into bankruptcy. Upon her application, the bankruptcy court assigned to Ms. Miller the rights of the trustee under s. 38 of the Bankruptcy and Insolvency Act to pursue Mr. Taylor’s unaccounted for assets. In the related order, dated September 4, 2012, the court stated that all benefits derived from the proceeding shall belong exclusively to the applicant (Ms. Miller) and other creditors who agree to contribute pro rata to the expense of the proceedings on an hourly rate of $150 for the applicant. In other words, if Ms. Miller was successful in obtaining a benefit through the fraudulent conveyance action, and if other creditors were entitled to share in it, they were required to compensate her for her efforts on their behalf.

[6] While a rate of $150 per hour is reasonable in the circumstances set out in the order, difficulties arise with using it in the context of determining costs payable by the defendants in this action. Understandably, a self-represented party does not perform legal work as efficiently as a lawyer would. In fact, Ms. Miller spent many hours on certain items. For example, her outline shows that she spent 24 hours on her statement of claim which included researching, drafting, editing, reviewing with a consultant and filing the claim at the court office. Using the hourly rate of $150, Ms. Miller claims $3,600 for this item. A lawyer charging $3,600 at $500 per hour would docket 7.2 hours. An experienced litigation lawyer would not require 7.2 hours to prepare the claim in this action. If Ms. Miller’s rate were to be used to determine costs, the amount would be higher than an amount that counsel would request.

[7] Ms. Miller requests $6,457.35 for disbursements which includes HST. This amount is supported by receipts.

[8] Generally stated, Ms. Miller carried out the following work in conducting the litigation:

• Research and preparation of statement of claim
• Receipt and review of defendants’ demand for particulars
• Prepare and serve response to demand for particulars
• Correspondence with opposing counsel regarding case management
• Court attendances regarding case management
• Receipt and review of statement of defence
• Gather documents for affidavit of documents
• Prepare affidavit of documents and serve on opposing counsel
• Legal research for summary judgment motion
• Prepare motion record, factum and brief of authorities for summary judgment motion
• Attempt service several times on opposing counsel
• Attend court to oppose defendants’ requests for adjournments
• Amend factum and brief of authorities, serve on opposing counsel
• Appear on long motion for summary judgment, 2 days
• Receipt and review of reasons for judgment
• Prepare draft orders relating to various endorsements and provide to opposing counsel for approval as to form and content
• Correspondence and telephone discussions with opposing counsel regarding the above

[9] It should be noted that Ms. Miller’s materials for her summary judgment motion were extensive and helpful to the court.

[10] In considering an appropriate amount of costs payable to a self-represented party, I am to determine a reasonable allowance for the loss of Ms. Miller’s time to conduct the litigation. Ms. Miller is a real estate agent. She provided an affidavit setting out the particulars of her income and attached as an exhibit, a letter from her broker describing her income and its decline. Based on the record before me, I am satisfied that she has proved that she suffered a loss of opportunity cost.

[11] Ultimately, in fixing an amount for costs, the overriding principles are fairness and reasonableness. See Boucher v. Public Accountants 2004 14579 (ON CA), 71 O.R. (3d) 291. In determining an amount that is fair and reasonable, I must consider what the losing party would expect to pay for costs. The amount must be proportionate to the issues in the action. The importance of the issues must also be considered.

[12] A brief account of the events that took place after Mr. Taylor’s appeal of the trial judge’s decision was dismissed shows that Ms. Miller pursued this matter for a further 5 years. After defending Mr. Taylor’s unsuccessful appeal (from December 2008 to April 1, 2010), Ms. Miller spent most of the following year (April 2010 to June 2011) trying to collect the amount of the judgment. In September 2011, Mr. Taylor made an assignment into bankruptcy. The bankruptcy proceedings took place over the next year. Ms. Miller made an application to the bankruptcy court and obtained an order assigning her the rights of the trustee to pursue Mr. Taylor’s unaccounted for assets and allowing her to commence the fraudulent conveyance action. She commenced this action in October, 2012. Over the last two years, the parties brought various motions. My decision regarding Ms. Miller’s motion for summary judgment was released on April 24, 2015. Obviously, the issues in this action were extremely important to Ms. Miller.

[13] Had Ms. Miller been represented by counsel, the defendants ought to have expected to pay approximately $30,000 plus disbursements and HST for the costs of this action. In exercising my discretion pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, I conclude that a fair, reasonable and proportionate allowance for Ms. Miller’s loss of opportunity cost related to conducting the litigation is $9,000. Disbursements of $6,457.35 are allowed. Accordingly, the defendants shall pay to Ms. Miller $15,457.35 all inclusive, within 30 days.

VALLEE J.

Date: July 31, 2015