Court File and Parties

Court File No.: CV-17-572977 Court File No.: CV-17-574683 Date: 2018/11/22 Ontario Superior Court of Justice

Application brought pursuant to Rules 14.02(3), 14.05(3)(d), 14.05(3)(e), 14.05(3)(g) and 14.05(3)(h) of the Rules of Civil Procedure and Section 51 (2) of the Land Titles Act.

Parties

BETWEEN:

Aragon (Wellesley) Development (Ontario) Corporation Applicant – and – Piller Investments Limited, Glad Day Bookshop Inc., Toronto General Trusts Corporation or its successor, Eleanor Jane Stevenson, David William Robert Stevenson, Ruth Clare Stevenson, also known as Ruth Clare Lodge, Catherine Elizabeth Stevenson, Robert William Stevenson, William Alexander Young, Donald Gordon Young, Katherine Anne Lodge, David Arthur Lodge, John Steven Lodge, Margaret Jean (Peggy) Williams, John Douglas Williams, Elizabeth Jane Williams, Adrienne Jane Stevenson, Faith Elaine Dinsdale, John David Dinsdale, Brendan Scott McCallum, Kaitlin Sarah McCallum, Celina Egialak Hogaluk, Troy Justin Kakapak Oakoak, David Alexander Young, Duncan Alexander Young, Alicia Meagan Young, Robin Leigh Reid, Tobin James Reid, Samantha Celotto Lodge, and Travis Celotto Lodge Respondents

AND BETWEEN:

Piller Investments Limited Applicant – and – Aragon (Wellesley) Development (Ontario) Corporation, First Elnor Holdings Limited, Pusateri International Group Inc., 9775056 Canada Inc., IMH 77 Wellesley Ltd., Toronto General Trusts Corporation, Eleanor Jane Stevenson, David William Robert Stevenson, Ruth Clare Stevenson, also known as Ruth Clare Lodge, Catherine Elizabeth Stevenson, Robert William Stevenson, William Alexander Young, Donald Gordon Young, Katherine Anne Lodge, David Arthur Lodge, John Steven Lodge, Margaret Jean (Peggy) Williams, John Douglas Williams, Elizabeth Jane Williams, Adrienne Jane Stevenson, Faith Elaine Dinsdale, John David Dinsdale, Brendan Scott McCallum, Kaitlin Sarah McCallum, Celina Egialak Hogaluk, Troy Justin Kakapak Oakoak, David Alexander Young, Duncan Alexander Young, Alicia Meagan Young, Robin Leigh Reid, Tobin James Reid, Samantha Celotto Lodge, and Travis Celotto Lodge Respondents

Counsel

Melvyn L. Solmon and Cameron Wetmore for the Respondent Piller Investments Limited (in the first application) and for the Applicant Piller Investments Limited (in the second application) William Alexander Young, self-represented John David Dinsdale, self-represented

Heard: In writing

Before: Perell, J.

Reasons for Decision – Costs No. 2

[1] On October 15, 2018, I made a costs decision in two applications. I ruled that neither Mr. Young nor Mr. Dinsdale had proven that they lost an opportunity for remuneration as a result of time spent doing work ordinarily done by a lawyer. As such, costs were not available to them for their time spent as self-represented litigants. I ruled that they were entitled to an indemnification for the legal expense of Mr. Davis’s legal service on a partial indemnity basis. I awarded $8,288.25 on a partial indemnity scale for the time when Messrs. Dinsdale and Young were represented by Davis Barristers. I also ruled that Messrs. Dinsdale and Young were entitled to their assessable disbursements, which come to $1,968.40.

[2] Thus, in my costs decision, I did not make an award for the period of time during which Messrs. Dinsdale and Young were self-represented litigants, Mr. Dinsdale claimed costs of $26,123.93 from Piller and Mr. Young claimed costs of $31,671.05 from Piller.

[3] Unfortunately, I was unaware that Mr. Young and Mr. Dinsdale had filed additional costs submissions on October 12, 2018. In these circumstances, I advised the parties that I was prepared to reconsider my costs decision provided that Piller had an opportunity to respond to the additional costs submissions.

[4] Piller responded. Following Piller’s response, without permission to do so, Mr. Young and Mr. Dinsdale delivered further submissions which took umbrage at Piller’s submissions. The supplementary submissions reiterated with emphasis and some additional details what Mr. Young and Mr. Dinsdale had already submitted.

[5] In its response, Piller agreed that the disbursement for stationary, photocopies and postage should be $528.74 rather than $264.37; i.e., Piller agreed to an increase from $1,968.40 to $2,232.77. I approve this increase to the costs award.

[6] Piller, however, did not agree that Messrs. Young and Dinsdale’s unsworn costs submissions constituted proof that they had lost an opportunity for remuneration as a result of time spent doing work ordinarily done by a lawyer.

[7] I have no doubt that Messrs. Young and Dinsdale’s costs submissions are true and in the circumstances of this case I see no reason why those unsworn submissions should be ignored as evidence. Had Piller wished the submissions under oath with a right to cross-examine, then it could and should have made that request before submitting its reply costs submissions.

[8] Therefore, taking all of Messrs. Young and Dinsdale’s submissions as true, the issue becomes whether they have provided sufficient evidence that they lost opportunities for remuneration because they were engaged in doing the work that a lawyer would normally do.

[9] In this regard, I agree with Piller’s submissions that the evidence is insufficient to establish any genuine lost opportunities.

[10] It should also be noted that Messrs. Young and Dinsdales’ roles in the applications were akin to that of interveners. They had no commercial or financial interest in the applications and they would not be personally affected by the outcome. Interveners typically do not receive costs and are frequently relieved of any exposure to costs.

[11] I appreciated Messrs. Young and Dinsdales’ assistance, but the principal litigants in the two applications were Aragon and Piller, who each had considerable litigation risk and a substantial financial and commercial interest in the outcome of the litigation.

[12] Messrs. Young and Dinsdale sided with Aragon, but Aragon was well represented and did not need their assistance. I am quite sure that Messrs. Young and Dinsdale never would have expected to pay costs had Aragon lost.

[13] Piller could have disputed paying any costs to Messrs. Young and Dinsdale but to its credit Piller accepted that they should be indemnified for the costs paid while they were represented by a lawyer in the applications.

[14] Therefore, apart from the increase in disbursements, I do not change my costs award.

[15] Order accordingly.

Perell, J. Released: November 22, 2018

[1] See Aragon (Wellesley) Development (Ontario) Corp. v. Piller Investments Ltd., 2018 ONSC 6117.