WARNING

This case is subject to subsections 87(8) and 87(9) of the Child, Youth and Family Services Act, 2017. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

Court File No.: CV-15-109 Date: 2018-12-12 Superior Court of Justice - Ontario

Re: AA, Plaintiff And: BB and CC, Defendants

Before: Corkery J. Counsel: None, all parties acting on their own behalf.

Amended COSTS ENDORSEMENT

Amended decision: The text of the original judgment was amended on July 22, 2020 and a description of the amendment is appended.

[1] After a trial in two parts, lasting a total of ten days, BB and CC were found jointly and severally liable for the torts of conspiracy, slander and intentional infliction of emotional distress as against AA. Damages were fixed in the total amount $25,000: $10,000 each for slander and intentional infliction of emotional distress and $5,000 in punitive damages.

[2] The parties acted on their own, unassisted by lawyers.

[3] AA seeks an order for costs based upon time spent preparing for and attending the trial (473 hours), and for two related proceedings that were necessitated by this action: a Child and Family Services Review Board hearing (213.8 hours), and a Norwich application (110.15 hours). AA supports his claim with dockets recording the time he has spent. Relying on decisions of this court, awarding costs to successful self-represented litigants, AA seeks costs calculated at a rate of $150 per hour for the 796.95 total hours invested in the litigation.

[4] Relying on Rule 57.01(1), AA submits that the following factors must be considered in support of his claim: this was a complex proceeding; the issues were important; the defendants unnecessarily lengthened the proceeding; and the defendants acted in bad faith.

[5] AA cites a number of cases from this court in which successful self-represented parties have been awarded costs.

[6] BB opposes the plaintiff being awarded costs. BB submits that: the trial was not complex and (incorrectly) submits that it lasted only five days; AA was already awarded costs for the Norwich application; and AA has failed to show that he incurred any opportunity cost as a result of acting on his own behalf.

[7] CC also disputes AA’s claim for costs. She argues that AA should not be entitled to any costs for: steps taken prior to the action being commenced, including the Norwich application for which he awarded costs; or for educating himself because he is not a lawyer. CC asks the court to consider her poor financial circumstances, her poor health, the history of her family litigation with AA and the mistakes she made because she was not a lawyer.

[8] AA filed a reply to the cost submissions of the defendants. AA disagrees with CC’s and BB’s characterization of their role in the litigation.

[9] In reply to BB, AA submits that the court has evidence that he forewent remunerative activity: it is documented in his statement of claim and his evidence at trial that he had to take time off work to deal with the litigation and for stress leave because of the litigation. He claimed that he had lost his career due to the amount of time he had to take off dealing with this action and prior related matters. He lost a total of 2.5 years of “non-full time work”.

[10] Alternatively, AA submits, citing recent family court decisions of this court, that proof of a loss of remunerative opportunity is not an absolute precondition to awarding costs to self-represented litigants.

[11] Fong v. Chan (1999), 1999 2052 (ON CA), [1999] O.J. No. 4600 (C.A.) remains the leading authority from the Court of Appeal on costs being awarded to unrepresented litigants. In paras. 25 and 26, Sharpe J.A. stated:

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, […]. 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 foregoing 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. The trial judge is particularly well-placed to assess the appropriate allowance, if any, for a self-represented litigant, and accordingly, the trial judge should either fix the costs when making such an award or provide clear guidelines to the Assessment Officer as to the manner in which the costs are to be assessed. [Emphasis added.]

[12] The proper application of Fong v. Chan was considered by the Divisional Court in Mustang Investigations v. Ironside, 2010 ONSC 3444. It held that proof of the opportunity cost is a necessary precondition to even an award of nominal costs. At paras. 23 and 27 to 29, Jennings, J stated:

[23] 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.

[27] 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 foregone. Simply stated, no proof of opportunity cost, no nominal costs available.

[28] It may be that in some cases an injustice will result, to which I would make two responses: (1) it is difficult to see any injustice in compensating someone for a loss not incurred; and (2) regardless, the principle of stare decisis does not permit this court, or judges sitting in motions, or masters, to modify a decision of the Court of Appeal. [Emphasis added.]

[29] In my view, there was nothing referred to in the decision of the motion judge which would permit him to infer a loss of remuneration and I would not allow an award on that account.

[13] Mustang was recently confirmed as the correct interpretation of Fong by the divisional court in Edelstein v. Monteleone, 2017 ONSC 7446:

[5] In Fong, the Ontario Court of Appeal examined the question of what principles should govern the award of costs to self-represented lay litigants. They then decided that such “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.” This principle is clearly articulated in Fong and I was pointed to no authority from the Court of Appeal or higher that has changed it. Thus, until the Court of Appeal or the legislature decides differently, trial courts are bound by the principle articulated in Fong. This is what the trial judge in this case found. In doing so, he committed no error. In fact, as the Divisional Court decided in Mustang, if he had done otherwise, this would have been an appealable error.

[14] The cases cited by AA, Izyuk v. Bilousov, 2011 ONSC 7476, Burns v. Krebss, 2013 ONSC 226, Bergen v. Sharp, 2013 ONSC 74188, and Witter v. Gong, 2016 ONCJ 722, are all cases in which costs were determined under the Family Law Rules, O. Reg. 114/99, as amended. While each of these cases acknowledge the authority of Fong, they all reject an interpretation of Fong that requires proof of “forgoing remunerative activity”. None of these cases consider the Divisional Court’s decision in Mustang. In Bergen v. Sharp, Price J. adopts Perrell J.’s reasoning at trial in Mustang Investigations v. Ironside, 2009 49323 (Ont. S.C.), at paras. 13-14, but this is precisely what was rejected on appeal to the Divisional Court in its decision and confirmed in Edelstein.

[15] In his claim and in submissions at the outset of the trial, AA sought damages for income loss caused by the action of the defendants. This claim did not succeed at trial. Damages, however, are not to be confused with the costs of a lost opportunity. AA proved neither.

[16] Although I have little doubt that AA spent many hours preparing for and successfully prosecuting his claim, having failed to establish foregoing remunerative activity the plaintiff is not entitled to costs for this time.

[17] AA seeks $2,500 for disbursements. This figure is unsupported by any breakdown. The amount of disbursements payable by the defendants is fixed at $1,000.

J.C. Corkery J.

Date: December 12, 2018

Appendix

Amendments made July 22, 2020:

In accordance with the order made June 1, 2020 (AA v. BB and CC, 2019 ONSC 3423):

• the endorsement was amended to use the letters AA, BB and CC in place of the names or initials of parties, and
• the warning was added.