Court File and Parties
COURT FILE NO.: CV-14-498460 DATE: 20170623 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DAVID EDELSTEIN, Plaintiff AND: AGOSTINO MONTELEONE, ANTONIO MONTELEONE SR., DOMENIC MONTELEONE and ANTONIO MONTELEONE, Defendants
BEFORE: Mr. Justice P.J. Cavanagh
COUNSEL: David Edelstein, In Person Salvatore Mannella, for the Defendants
HEARD: Submissions in Writing
Costs Endorsement
[1] The plaintiff represented himself in this action and was successful. Pursuant to my Judgment released on May 2, 2017, the plaintiff is entitled to receive 38.37 per cent of funds held in court ($174,795.04 plus earned interest) for a total of $67,068.86 plus earned interest.
[2] The plaintiff seeks costs from the defendants on a full indemnity basis in the amount of $99,900.48 inclusive of disbursements and HST. Of this amount, $78,775 represents costs calculated based upon time expended by the plaintiff in this litigation at an hourly rate of $200, $10,880.73 represents disbursements, and $10,244.75 represents HST.
[3] Section 131(1) of the Courts of Justice Act provides that subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent of the cost shall be paid. Rule 57.01(4) of the Rules of Civil Procedure provides that nothing in this rule or rules 57.02 to 57.07 affects the authority of the court under section 131 of the Courts of Justice Act to award costs to a party acting in person.
[4] The defendants submit that the plaintiff has failed to lead any evidence of loss of remuneration as a result of the time that he expended in relation to this litigation, either at trial or in his costs submissions. The defendants rely upon Fong v. Chan (1999), 46 O.R. (3d) 330 as it has been interpreted in Mustang Investigations Inc. v. Ironside 2010 ONSC 3444 (Div. Ct.). The defendants submit that, as a result, the plaintiff is not entitled to any costs, other than proper disbursements and the additional sum of $1,500 that was fixed by Master Short and payable in the cause.
[5] In Fong, at paras. 25-26, Sharpe J.A. wrote:
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 Fellowes, McNeil v. Kansa, supra, there are undoubtedly cases where it is inappropriate for a lawyer to appear in person, and there will be 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, supra, 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 forgoing remunerative activity. As the early Chancery rule recognized, a self-represented lay 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.
[6] In Mustang, Jennings J., at paras. 23 and 27, wrote:
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.
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 forgone. Simply stated, no proof of opportunity cost, no nominal costs available.
The Divisional Court in Mustang set aside an award of $20,000 as a counsel fee to a self-represented litigant.
[7] The decisions in Fong and Mustang represent the law in Ontario and these decisions are binding on me. The plaintiff has not provided evidence supporting a claim for lost opportunity costs. Accordingly, I am unable to award costs to the plaintiff in respect of his personal time devoted to the litigation with the exception of costs in the amount of $1,500 that were fixed by Master Short in his endorsement dated April 3, 2017 and payable in the cause. This order was not appealed and, because the plaintiff was successful in the action, he is entitled to these fixed costs.
[8] The plaintiff seeks reimbursement of disbursements in the amount of $10,888.73. The defendants submit that the plaintiff’s claims for reimbursement of travel expenses of 1,800 kilometres at $0.40 per kilometre ($720.00) is excessive given that the plaintiff resides in Toronto and the case was heard in Toronto. The defendants also object to the claim for “Tier 1 Time” in the total amount of $1,239.51 on the basis that there is no description of these disbursements provided nor are there any receipts or documents produced to verify these expenses. In his reply submissions, the plaintiff appended extracts from the Legal Aid Ontario travel tariff that provides for travel hourly rates applicable to different tier levels of lawyers.
[9] I exercise my discretion to allow disbursements for travel expenses in the amount of $720 and to disallow the disbursements claimed for “Tier 1 Time” in the amount of $1,239.51.
[10] I therefore fix the costs of this action in the amount of $1,500 together with disbursements in the amount of $9,641.22 and HST on disbursements of $1,253.36, a total of $12,394.58. These costs are to be paid within 30 days.
Mr. Justice P.J. Cavanagh Date: June 23, 2017