Court File and Parties

COURT FILE NO.: C-435-13

DATE: 2019-02-07

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: IRIS R. POWELL and THE CLASSIC PLUS WOMAN INC., Plaintiffs

AND:

SEAN SILVA and MOUHAMED AFZAL SAHADAT, ISHAN DHANAPALA, DHANA CORPORATION and FIRST FINANCIAL CONSULTING SERVICES (FFCS) LTD., Defendants

BEFORE: D.A. Broad

COUNSEL: Richard Campbell, Counsel for the Plaintiffs

Osborne G. Barnwell, Counsel for the Defendants, Mohamed Afzal Sahadat, Ishan Dhanapala, Dhana Corporation and First Financial Consulting Services (FFCS) Ltd.

Defendant Sean Silva – Self-represented

ADDENDUM TO COSTS ENDORSEMENT

[1] My Costs Endorsement was released on September 30, 2018. In that Endorsement I noted that the defendant Sean Silva had not delivered any written submissions on costs and accordingly no costs were awarded to him against the plaintiffs as a consequence of the dismissal of their action against him.

[2] Mr. Silva subsequently sought to have the issue of costs re-opened as he indicated that he had attempted to deliver written costs submissions but such submissions had failed to reach me. He delivered a Costs Outline with this request seeking costs against the plaintiffs.

[3] After requesting and reviewing submissions from Mr. Barnwell, counsel for the other defendants, and from Mr. Campbell, counsel for the Plaintiffs, I determined that it would be in the interests of justice to consider Mr. Silva’s written costs submissions and delivered correspondence to the parties to that effect. Mr. Campbell delivered written submissions responding to Mr. Silva’s submissions on costs as directed in my correspondence.

[4] In his Costs Outline Mr. Silva states that the trial comprised seven court days during which he was unable to work. He stated that he lost 8-9 hours on each of those days and calculated that he spent 63 hours in court, plus about five hours to prepare for a total of 69 hours.

[5] Mr. Silva claims $80 per hour for a total of $5,520.00 plus “costs incurred for filing” of $380.00 for a total of $5,900.00.

[6] Mr. Silva also stated that he paid counsel who formerly represented all of the defendants the sum of $2,000.00 but provided no particulars or evidence of this payment.

[7] Mr. Silva referred to the case of Huard v. Hydro One Networks Inc., (2002) 30 C.P.C. (5^th) 164 (Master) in which costs were awarded to a self-represented litigant at a rate of $60 per hour, which he asserts would be presently equivalent to $80 per hour after adjustment for inflation.

[8] Mr. Campbell for the plaintiffs submits that the quantum of Mr. Silva’s costs claim amounts to full indemnity costs and that there is no justification for an award of costs beyond a partial indemnity basis. He points out that Mr. Silva provided no evidence of any payment to the former counsel for the defendants.

[9] Mr. Campbell also submits that Mr. Silva was required to attend court on only one day during which he gave testimony and was cross-examined. He says that if costs to Mr. Silva are justified the quantum should be the sum of $2,000.00 all inclusive.

[10] At para. 19 of Huard Master Dash set forth the principles respecting costs awardable to self-represented litigants derived from the case of Fong v. Chan, 1999 CanLII 2052 (ON CA), [1999] O.J. No. 4600 (C.A.) as follows:

a) Self-represented lay litigants may be awarded costs, and such costs may include an award for counsel fee;

b) A self-represented litigant does not have an automatic right to recover costs. The matter is fully within the discretion of the court;

c) The self-represented litigant is not entitled to costs calculated on the same basis as the litigant who retains counsel.

d) The self-represented litigant may be awarded costs for the time and effort they devoted to work ordinarily done by a lawyer retained to conduct the litigation, but should not recover costs for the time and effort that any litigant would have to devote to his case, such as attending in court in any event;

e) As a result of devoting the time and effort to work ordinarily done by a lawyer the lay litigant must demonstrate that he "incurred an opportunity cost by forgoing remunerative activity."

[11] At para. 20 Master Dash added that “it is trite law that the court should allow only those costs that are fair and reasonable.”

[12] At para. 26 of Fong the Court of Appeal noted that “all litigants suffer a loss of time through their involvement in the legal process” and that a “self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case.”

[13] The Court in Fong added that “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.”

[14] It is noted that no costs were claimed by Mr. Dhanapala (who was represented by Mr. Barnwell) for the time that he spent personally attending the trial, nor would any such award of costs be appropriate.

[15] I find, based on the clear direction from the Court of Appeal in Fong as followed in Huard, that no amount should be awarded to Mr. Silva for his attendance at the trial, which he would have had to devote to the case whether he was represented by counsel or not.

[16] Mr. Silva indicated that he devoted five hours to preparation. Unlike the situation in Huard there is no evidence that Mr. Silva prepared any pleadings or other court documents. I would also allow him two hours (calculated at 50%) travel time for each day of trial, for a total of 19 hours at the rate of $50.00 per hour on a partial indemnity basis. No issue was taken to Mr. Silva’s claim for $380.00 for filing fees.

[17] I would not allow any amount for payment to the former counsel for the defendants given the lack of evidence of payment.

[18] I therefore order that the plaintiff Iris R. Powell pay to the defendant Sean Silva costs in the sum of $1,330.00 comprised of $950.00 for preparation and travel time and $380.00 in filing fees, all inclusive, within 30 days hereof. For the reasons set forth in my Costs Endorsement released September 30, 2018, I award no costs in favour of Mr. Silva against the plaintiff The Classic Plus Woman Inc..

D.A. Broad, J.

Date: February 7, 2019