Court File and Parties

Court File No.: CV-10-415550 Date: 2018-06-28 Superior Court of Justice - Ontario

Re: Margaret Pinto, Plaintiff And: Toronto Transit Commission, Defendant

Before: Carole J. Brown, J.

Counsel: Margaret Pinto, Self-represented Chad Townsend, for the Defendant

Heard: June 4-8, 11-15, 18-21, 2018

Costs Endorsement

[1] Following a 13 day trial, the jury returned a verdict finding the Toronto Transit Commission ("TTC") was not negligent as regards the injuries sustained by the plaintiff.

[2] The action arose from a slip and fall on a TTC bus on December 31, 2008, resulting in a fracture to the plaintiff’s left ankle. The plaintiff claimed that as a result of the fracture, her ankle has never healed, she is experiencing excruciating pain which affects her mobility and has been unable to work since the accident, nine and one-half years ago. She sought damages in the total amount of almost $2 million.

[3] The medical evidence showed that her fracture had healed completely within two months and that her orthopedic surgeon had told her that she could go back to work one month after the accident. The objective findings of the various medical practitioners she consulted indicated that the subjective complaints of the plaintiff were not consistent with the objective assessments and radiological reports. There was nothing found by the expert orthopedic surgeons which could explain her complaints.

[4] Where she did not agree with evidence adduced, including the evidence of the orthopedic surgeons at Mount Sinai and St. Michael's Hospital, she alleged that their reports were tampered with or fabricated. As regards the radiological reports and x-rays, she made the same allegations. She also alleged that surveillance videotape of her was tampered with or fabricated, as well as transcripts of TTC adjusters interviews with her. It was the theory of the plaintiff that the TTC had attempted to conceal, intentionally destroy, tamper with or alter much evidence that would have been of benefit to her.

[5] The claim was commenced in 2011. Numerous motions were brought, many by the plaintiff, a two day motion regarding undertakings was heard, a status hearing was adjourned three times, and there were four pretrial hearings. Two Rule 49 offers were made, one on June 27, 2016 at the time of the scheduled trial in the amount of $40,000 inclusive of interest, with costs to be assessed or agreed upon; the second on May 18, 2018, prior to this trial in the amount of $90,000 all-inclusive, plus costs to be assessed or agreed upon. It is the position of the defendant that the last offer was reasonable and, on the part of the TTC, was economically motivated. The plaintiff did not accept the offer and it is the position of the defendant that the plaintiff was unreasonable not to accept it.

[6] She fired two consecutive lawyers prior to the trial.

[7] It is the position of the defendant that self-represented plaintiffs should be subject to the same consequences as all parties. The same rules must apply to self-represented parties as all parties.

[8] It was the position of the plaintiff that she should not be required to pay costs as she is impecunious. She submitted that she was fighting for her rights which were not unreasonable, that she can no longer work and cannot pay the costs. It is her submission that the TTC can afford this.

[9] No evidence of impecuniosity was presented.

[10] The defendant seeks its costs on a partial indemnity scale from January 2011 to termination of this trial in the amount of $94,360.95 for fees and $31,130.76 for disbursements, for a total of $125,491.71. The defendant relies on the cases of Montague v TTC, 2017 ONSC 4617 and Sutherland v Manulife Financial, 2011 ONSC 1170 as regards the costs awards.

[11] In Sutherland, in which the self-represented plaintiff maintained that she was impecunious which would make the imposition of costs unjust, the court at paragraph 9 stated as follows:

[9] Although the plaintiff has admitted 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 cost award on the grounds of impecuniosity and wrote:

Although it is open to a court to exercise its discretion and make no cost 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.

[12] In the case of Montague v TTC, the court, having taken into account the factors enumerated under Rule 57 and the principles set forth by the Court of Appeal in Boucher, fixed costs to be paid by the plaintiff to the TTC on the ground that the defendant’s bill of costs, in all of the circumstances, was reasonable and that the unsuccessful party, the plaintiff, should be held responsible for payment of the TTC’s costs on a partial indemnity basis.

[13] In the case of Sutherland v Manulife, also involving a self-represented party, the court stated as follows at paragraphs 9 and 10:

[9] 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 the litigant to conduct her case in a reasonable manner which avoids imposing unnecessary costs on the other party.

[10] In terms of the first policy consideration, where a litigant argues that her limited financial resources would make the imposition of costs unjust, the litigant must place before the court some evidence of her financial situation.

[14] In that case, the court awarded costs against the plaintiff on the ground that they were reasonable in the circumstances of the motions involved and in light of the plaintiff’s unreasonable conduct which put the defendants to the unnecessary expense of bringing the motions. The court further declined to defer the plaintiff’s payment of the costs.

[15] In awarding costs, which is in the discretion of the court pursuant to the Courts of Justice Act, section 131, I have taken into account the factors enumerated in Rule 57, including the time spent, the results achieved and the complexity of the matter, as well as the application of the principle of proportionality. In addition, I have considered the principles set forth by the Court of Appeal in Boucher v Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3rd) 291 (C.A.), as well as Sutherland v Manulife, supra. I am satisfied, in all of the circumstances, the defendant’s costs, which do not include all of the costs incurred over the seven year period of litigation, are reasonable. I find that while the plaintiff was entitled to assert her rights initially, based on all of the evidence before this Court and based on her conduct throughout, her conduct of the case was unreasonable and her refusal to accept the offers made to her by the TTC in an effort to avoid litigation was not reasonable.

[16] Accordingly, I award costs to the defendant, payable by the plaintiff in the total amount of $125,491.71 all-inclusive.

Carole J. Brown, J.

Date: June 28, 2018