Im v. BMO Investorline Inc., 2019 ONSC 3339

Court File and Parties

COURT FILE NO.: CV-15-533145 MOTION HEARD: 2019 03 13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sae-Bin Im v. BMO Investorline Inc., CIBC Investor Services Inc., TD Waterhouse Canada Inc., Canadian Securities Administrators, Investment Industry Regulatory Organization of Canada and Joe Oliver, Minister of Finance, Canada

BEFORE: MASTER R. A. MUIR

COUNSEL: Sae-Bin Im in person Robert Trenker for defendant BMO Investorline Inc. Elie Farkas for the defendant TD Waterhouse Canada Inc. Zev Smith for the defendant CIBC Investor Services Inc. Stephen Aylward for the defendants Canadian Securities Administrators and Investment Industry Regulatory Organization of Canada

SUPPLEMENTARY REASONS FOR DECISION - COSTS

1The court heard three motions in this action on March 13, 2013. The defendants BMO Investorline Inc. (“BMO”) and Canadian Securities Administrators and Investment Industry Regulatory Organization of Canada (collectively, “IIROC”) each brought motions seeking an order dismissing this action as a result of the plaintiff’s breach of the peremptory order of Master Pope made September 12, 2017.

2The plaintiff initially brought a motion before Justice Nakatsuru on January 14, 2019. The plaintiff’s motion sought, among other things, an order varying Master Pope’s order of September 12, 2017 and extending the time for the plaintiff to file his statement of claim. The plaintiff’s motion raised most of the same issues as the BMO and IIROC motions. I therefore determined that all three motions should be heard by me at the same time.

3I released my reasons for decision on March 15, 2019. I dismissed the BMO and IIROC motions and made an order extending the time for the plaintiff to file his statement of claim. I also asked for written costs submissions. I have now received and considered those submissions.

4The plaintiff was largely successful on these motions and requests costs. The defendants suggest that there be no order for the costs of these motions.

5The successful party on a motion is ordinarily entitled to costs. However, there are exceptions to that general rule. In my view, this is one of those cases where the successful party should be denied his costs.

6First, the plaintiff has received a substantial indulgence from the court. He was permitted to file his statement of claim nearly four years after issuing his notice of action and after having missed a deadline in an earlier peremptory court order. There has obviously been significant delay with this action. The defendants were justified in bringing their motions given the lengthy delay and the plaintiff’s failure to comply with the peremptory order of Master Pope.

7Second, much of the evidence and argument on these motions would have been required regardless of the position taken by the defendants. It was necessary for the plaintiff to satisfy the court that a further indulgence was justified.

8Finally, the plaintiff has not provided any evidence of lost income as a result of having to prepare for and appear on these motions. Such evidence is a requirement. Self-represented litigants must show evidence of a lost opportunity before they are entitled to costs. See Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228 at paragraph 18.

9For these reasons, I have concluded that it is fair and reasonable that there be no order for the costs of these motions.

Master R. A. Muir