Court File and Parties

Citation: Montague v. TTC, 2017 ONSC 4617 Court File No.: CV-14-507395 Date: 2017-07-28 Superior Court of Justice - Ontario

Re: Yvonne Montague, Plaintiff And: Toronto Transit Commission, Defendant

Before: Mr. Justice P.J. Cavanagh

Counsel: Yvonne Montague, In Person Andrew Davidson, for the Defendant

Heard: Submissions in Writing

Costs Endorsement

[1] After a four day trial, the jury returned its verdict that the defendant Toronto Transit Commission (“TTC”) was not negligent and that the plaintiff was not entitled to any damages.

[2] The TTC was represented by a lawyer from its internal legal department. The plaintiff was self-represented.

[3] The TTC seeks costs of this action on a partial indemnity scale in the amount of $34,392 together with disbursements in the amount of $2,391.40 (inclusive of HST).

[4] The TTC presented a Bill of Costs that includes estimates of time expended for tasks performed in the course of this litigation. The TTC’s Legal Department does not maintain time dockets. According to the Bill of Costs, the time estimates are based on “a detailed review of the complete file including all correspondence, records, internal notes, memos, emails etc.” An hourly charge of $240 was applied to the total time estimate (143.3 hours) to calculate the total fee of $34,392.

[5] The TTC submits that the plaintiff, as the unsuccessful party, should pay costs under the “loser pays” principle which informs this court’s costs regime and that the amount of costs requested is reasonable.

[6] The plaintiff submits that:

a. In the absence of time dockets, costs should not be awarded to the TTC based upon estimates.

b. There was no offer to settle made by TTC other than an extremely minimal settlement amount, and she had no choice than to proceed to trial. Given that the TTC seeks costs on a partial indemnity scale, the offers to settle made by the TTC are of no consequence in fixing the amount to be paid for costs.

c. Although she has a limited ability to pay a costs award, the reality is that she is impecunious and does not have the financial wherewithal to pay the amount of costs requested by the TTC. The plaintiff submits that this is a factor to be considered.

d. Costs should not be awarded for travel time at the same hourly rate that is permitted for performance of legal services.

e. The amount of time estimated for preparation for trial is excessive.

[7] Fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. The discretion is to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure, including the principle of indemnity, the expectations of the unsuccessful party, and the complexity of the issues. Overall, the court is required to consider what is “fair and reasonable”, with a view to balancing compensation to the successful party with the goal of fostering access to justice (Boucher v Public Accountants Council (Ontario), 2004 14579, (2004), 71 O.R. (3d) 291 (Ont. C.A.), at paras. 26, 37.).

[8] I disagree with the plaintiff’s submission that, because the TTC Legal Department does not keep time dockets, the TTC is not entitled to an award of costs for fees. I take the fact that the TTC’s calculation of fees is based upon estimates of time into account when I fix the amount that is fair and reasonable for fees. I regard the hourly rate of $240 to be reasonable.

[9] Although the plaintiff has submitted that she is impecunious, no evidence has been provided to support this submission. In Sutherland v. Manulife, 2011 ONSC 1170, Brown J. (as he then was) addressed the considerations that apply when a party resists a costs award on the grounds of impecuniosity and wrote:

Although it is open to a court to exercise its discretion and make no costs award in the case of an unsuccessful impecunious party, such awards should be “rare”: [citations omitted]. I adopt the following passage from Morden & Perell, The Law of Civil Procedure in Ontario, First Edition, as an accurate statement of the law in this area:

It is appropriate for the court to consider the financial ability of the party to pay an award of costs and the consequences of making or not making the award to the parties.

There is divided authority about whether impecuniosity is a relevant factor and may be considered in awarding and in enforcing costs awards, including determining when the costs should be payable. In our opinion, the better and preferable line of authority is that the court may consider a party’s impecuniosity when making a costs award. There are, however, authorities that adopt the categorical position that impecuniosity will not insulate a party from liability of costs otherwise payable. In any event, impecuniosity is not a shield to costs liability where a party has consistently failed to act reasonably. (p. 660)

Where a court is faced with a request by a litigant not to award costs against her because of her impecunious financial position, a court must weigh two competing policy considerations. First, those with arguable claims (or defences) should not be denied access to their “day in court” solely because of their lack of financial resources. The Ontario Superior Court of Justice is not a court for the rich, but a court for all who live in this province or who have a claim connected to this province. On the other hand, the “loser pays” principle which informs this court’s costs regime reflects, in part, the important policy consideration that exposing a civil litigant to a potential costs award should prompt of the litigant to conduct her case in a reasonable manner which avoids imposing unnecessary costs on the other party.

[10] In my view, as the unsuccessful party, the plaintiff should be held responsible for payment of the TTC’s costs on a partial indemnity scale.

[11] In reviewing the Bill of Costs filed by the TTC, I have taken into account the factors enumerated under Rule 57. In addition, I have considered the principles set forth by the Court of Appeal in Boucher.

[12] In my view, the estimates of time for the tasks listed in the Bill of Costs are reasonable, with the exception of some of the time estimated for preparation for trial. I note that the time estimated for preparation for trial does not include descriptions of the particular work that was done on the days in question. I also note that time was spent in preparation for trial on five days in the month of June 2016 and that additional time was spent in preparation for trial during the month of May 2017. I have reduced the number of hours for preparation for trial by 10 hours to account for duplication.

[13] I therefore fix costs to be paid by the plaintiff to the TTC for fees in the amount of $31,992 (133.3 hours at $240/hour) and disbursements in the amount of $2,391.40, a total of $34,383.40.

Mr. Justice P.J. Cavanagh

Date: July 28, 2017