Court File and Parties

Court File Nos.: 16-58711-A1 and 17-60499 Date: 2019-01-14 Superior Court of Justice - Ontario

Re: Action 1 (16-58711-A1): MARTIN ANDREW WOOLSEY, COLLEEN WOOLSEY, TAYLOR WOOLSEY, by her litigation Guardian, MARTIN WOOLSEY, OLIVIA WATSON, by her litigation Guardian, COLLEEN WOOLSEY and DAVID WATSON, by his litigation Guardian, COLLEEN WOOLSEY, Plaintiffs

And: REGAN BRENNAN and INTACT INSURANCE COMPANY, Defendants

And: JEFF MAILOUX and JAKE ROUNDTREE, Third Parties

Counsel for Action 1: Matthew A. Caldwell, Counsel, for the Plaintiffs (not appearing) Jasmina Mrkalj-Skelly, Counsel, for the Defendant, Brennan Sheila Shoghian, Counsel, for the Defendant, Intact Insurance Company (not appearing) Linda M. O’Brien, counsel for the Third Party, Jake Roundtree

And Re: Action 2 (17-60499): REGAN MAUREEN BRENNAN and CORNELIUS A. BRENNAN, Plaintiffs

And: JEFF MAILOUX and JAKE ROUNDTREE, Defendants

Counsel for Action 2: Cornelius A. Brennan, Counsel, for the Plaintiffs Linda M. O’Brien, Counsel, for the Defendant, Jake Roundtree

Before: The Honourable Mr. Justice R. B. Reid

Submissions Received: November 20 and December 13, 2018

Costs Endorsement following Summary Judgment Motion

Introduction

[1] Jake Rowntree (incorrectly shown in the Title of Proceedings as “Jake Roundtree”) brought two motions for summary judgment, one in each of two actions arising from a motor vehicle accident between Martin Woolsey and Regan Brennan. In the first action, Mr. Woolsey sued Ms. Brennan who in turn made a third-party claim against Mr. Rowntree and Jeff Mailoux for contribution and indemnity. In the second action, Ms. Brennan is a plaintiff, together with her father, Cornelius Brennan. Mr. Rowntree and Mr. Mailoux are defendants.

[2] The summary judgement motion was dismissed for the reasons contained in ONSC number 6423 dated October 26, 2018.

[3] The issue of costs was settled as between Mr. Rowntree and Ms. Brennan in the action where Ms. Brennan is a defendant.

[4] This endorsement relates to costs of the summary judgment motion in the action where Ms. Brennan and Cornelius A. Brennan are plaintiffs.

Positions of the parties

[5] Ms. Brennan seeks an order for costs in her favour on a substantial indemnity basis. She was successful in defending the summary judgment motion. The issue of Mr. Rowntree’s liability is potentially very significant to the ultimate outcome of the action and her costs were substantial. The substantial indemnity cost request is $18,465.33 inclusive of HST and disbursements.

[6] Counsel for Mr. Rountree submits that there should be no costs awarded in favour of the plaintiff because Cornelius Brennan, who argued the matter for Ms. Brennan and who is also her father, is a self-represented plaintiff and there is no indication of any opportunity cost incurred as a result of the work undertaken in defending the summary judgment motion.

[7] In reply, Cornelius Brennan submits that he is a plaintiff only by way of a Family Law Act (R.S.O. 1990, c. F.3) derivative claim and that Ms. Brennan was not self-represented.

Analysis

[8] The court’s discretion to awards costs flows from s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[9] I first consider the matter without regard to the issue of whether the Brennan plaintiffs were self-represented.

[10] Factors to be considered in the exercising of discretion are enumerated in rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Success is a presumptive factor and in this case, and the plaintiffs were entirely successful. In the normal course, an award of costs would be appropriate in favour of the plaintiffs, payable by the defendant Rowntree. Without making any comment about the strength of the plaintiff’s claim against Mr. Rowntree, I acknowledge that the issue is potentially significant in the ultimate outcome of the claim.

[11] The plaintiffs provided no justification for consideration of a substantial indemnity costs award. Therefore, the appropriate scale of costs is partial indemnity.

[12] If I was to make a partial indemnity costs award, I find that a reasonable amount is $10,560 inclusive of HST, plus disbursements of $407.93, also inclusive of HST. I have included a reduction of counsel’s claim for fees arising from his attendance to serve and file documents which should more appropriately be charged at clerk rates, and applied a 40 percent discount to the substantial indemnity rate claimed.

[13] Mr. Brennan did not respond to the submission that an opportunity cost must be demonstrated by a self-represented litigant to justify a costs award.

[14] In the Ontario Court of Appeal decision of Fong v. Chan, [1999] O.J. No. 4600, at paragraph 26, the court determined that self-represented parties, be they lawyers or lay litigants, should be on the same footing. They should not recover costs for the time and effort that any litigant would have devoted to the case. This is because all litigants suffer a loss of time through their involvement in the legal process. Costs should only be awarded when the litigant can demonstrate that they devoted time and effort to do the work that would ordinarily be done by a lawyer retained to conduct the litigation and that as a result, they incurred an opportunity cost by forgoing remunerative activity.

[15] The necessity of proving an opportunity cost was confirmed by the Divisional Court in Mustang Investigations v. Ironside, 2010 ONSC 3444. Referring to Fong, the court held at paragraph 23:

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.

[16] The importance of proving an opportunity cost was emphasized when, at paragraph 27, the court held: “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.”

[17] More recently, in Sydney Charendoff v. Alec McLennan, 2012 ONSC 7241, Justice MacDonnell considered a costs claim by the successful defendant who was a self-represented lawyer. He endorsed the Fong and Mustang Investigations decisions. Despite the fact that the self-represented lawyer obviously did work ordinarily performed by a lawyer retained to conduct the litigation, the lack of proof of opportunity cost was fatal to the costs claim.

[18] I note that in the case before me, Mr. Brennan made no assertion that there was a lost opportunity to do remunerative legal work on other files as a result of work performed on the response to the summary judgment motion.

[19] Therefore, if Ms. Brennan and Mr. Brennan are considered self-represented, there is an absence of evidence about actual opportunity cost incurred and no reason for me to infer that Mr. Brennan had to decline other remunerative activity in order to work on this case.

[20] I turn to the key issue of whether the plaintiffs were self-represented.

[21] As a co-plaintiff, Mr. Brennan is obviously a self-represented party in the action. The fact that his claim as plaintiff relates to damages under the Family Law Act as opposed to damages for personal injuries is of no consequence.

[22] Ms. Brennan was represented as plaintiff in the summary judgment motion by her father and co-plaintiff, Mr. Brennan.

[23] The claims against Mr. Rowntree are based on negligence and occupiers liability. Although the basis for the damage quantification differs as between the two plaintiffs, the same liability issues apply. The summary judgment motion dealt only with the liability issues and as such, both plaintiffs were equally interested in the outcome. There appears to be no disagreement on this point since, in his costs submissions, Mr. Brennan identified that: “the Plaintiffs in both proceedings have a very serious issue to be addressed with respect to responsibility for the motor vehicle accident”. Further, he stated that: “[I]f the Application for Summary Judgment had been successful both Plaintiffs would have been deprived from [sic] their right to have a full and final determination of their damages.”

[24] A general assertion is made that Ms. Brennan “has retained counsel [presumably Mr. Brennan] privately”. However, beyond that broad assertion, there is no substantiation of any such relationship. In fact, in another portion of his written submission Mr. Brennan adds that Ms. Brennan “is not in a position to retain private counsel”.

[25] Mr. Brennan also asserts that he prepared all pleadings, other documentation, and attended for cross-examination and at court on the motion as counsel for Ms. Brennan, in the action where she is named as plaintiff. I accept that Mr. Brennan took steps in the proceeding on behalf of Ms. Brennan as if she was a private client.

[26] Mr. Brennan asserts that there is no rule that a lawyer cannot represent a friend or relative and further states that he is entitled to act as counsel until such time as it is necessary for him to become a witness.

[27] The flaw in Mr. Brennan’s argument is that he is in fact a co-plaintiff whose interest is exactly aligned with that of his daughter. It is beyond debate that he is not entitled to costs as a self-represented lawyer outside the parameters of the Fong decision to which I have already referred. Indeed, he has made no such request.

[28] It is not possible for Mr. Brennan to occupy the role of self-represented plaintiff and simultaneously act as counsel for a co-plaintiff thereby entitling the co-plaintiff to costs for his services that he himself could not claim.

[29] As a result, I decline to make an order of costs in favour of the plaintiffs in action 17-60499 except as to disbursements in the amount of $408 which are payable by Mr. Rowntree to Ms. Brennan within 30 days.

Reid J. Date: January 14, 2019