Court File and Parties

COURT FILE NO.: CV-18-605963 DATE: 20200226 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ROSA ESTANOL, Applicant AND: YORK CONDOMINIUM CORPORATION NO. 299, Respondent

BEFORE: Kimmel J.

COUNSEL: Matthew Morden, for the Applicant at the June 4, 2019 hearing/Applicant self-represented at the November 19, 2019 hearing David Elmaleh, for the Respondent

READ: Written costs submissions filed January 31, 2020 and February 10, 2020 (Application heard June 4, 2019, Motion for Leave to File Fresh Evidence Heard November 19, 2019)

COSTS ENDORSEMENT

[1] I decided this application and motion for fresh evidence in my January 15, 2020 endorsement. The parties were afforded the opportunity to make submissions as to costs if no agreement could be reached. I have now received written costs submissions and a costs outline/bill of costs from each side.

Positions of the Parties

(i) The Applicant’s Position

[2] The applicant seeks partial indemnity costs of the application and compensation for her time spent on the motion for fresh evidence after she discharged her counsel.

[3] The applicant relies on the fact that she was successful in getting some of the relief she sought on both the application and the motion for fresh evidence and claims costs as the successful party. She claims that her success was on issues that took the majority of the time and effort and that she considers to be the most important (see Jackson v. Mayerle, 2016 ONSC 1556 at para. 66).

[4] The amounts claimed are supported by:

a. A costs outline that indicates the amounts the applicant was invoiced by the lawyer who represented her at the initial hearing of the application on June 4, 2019, reflecting 149.7 hours of time, that translates into a partial indemnity claim of $38,805.56 for legal fees and taxes; and

b. A costs outline that indicates 84.2 hours spent by the applicant preparing the materials for, and attending on, the motion for fresh evidence that was heard on November 29, 2019, that she translates into a claim for compensation of $3,885.83 calculated at $65.00 per hour; and

c. A summary of disbursements (totalling $9,863.00 in the aggregate) that includes:

i. $5,745.77 (inclusive of taxes) claimed to have been incurred during the period in which the applicant was represented by counsel; and

ii. $4,117.23.00 (inclusive of taxes) claimed to have been incurred by the applicant directly in connection with the fresh evidence motion.

[5] The applicant relies on Abela v. Gibbens, 2018 ONSC 2544, at paras. 36-45, in support of her claim for compensation for her own time spent on tasks that she asserts would have been performed by a lawyer, had she been represented by a lawyer on the motion for fresh evidence. She claims to have spent 84.2 hours on the motion. The applicant originally sought $7,472.75 in compensation for her time spent on the motion for fresh evidence, calculated at $125.00 per hour, which she indicates, in reliance on the Abela case, is the average billable hourly rate for paralegals employed by the provincial government. In her reply submissions, the applicant reduced the hourly rate for her own time to $65.00 per hour, which reduced the claim for her time spent on the fresh evidence motion to $3,885.83.

(ii) The Respondent’s Position

[6] The respondent relies upon the observation made at paragraph 125 of my January 15, 2020 endorsement that there had been divided success on both the motion and the application. The respondent suggests that each party should bear their own costs; or that there be no order as to costs. The respondent argues that there is no presumptive entitlement to costs where there has been divided success and points out the many claims that the application did not succeed on.

[7] The respondent agrees that if costs are to be awarded to any party that they should be on a partial indemnity scale. The respondent challenges the amount of partial indemnity costs that the applicant claims, having regard to its own partial indemnity costs claimed and what is fair and reasonable (see Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.)). The respondent also relies on the principle of proportionality, given the amounts at issue.

[8] The respondent’s bill of costs prepared and provided to the applicant’s counsel at the conclusion of the June 4, 2019 hearing, well before my decision was released, indicated partial indemnity costs of $15,568.09 (inclusive of disbursements totalling $586.09 and applicable taxes). The respondent’s bill of costs prepared and provided to the applicant at the conclusion of the motion for fresh evidence on November 29, 2019 indicated partial indemnity costs of $2,702.06 (inclusive of disbursements totalling $310.86 and applicable taxes).

Entitlement to Costs

[9] Costs are in the discretion of the court, under s. 131 of the Courts of Justice Act. Rule 57.01(1) of the Rules of Civil Procedure contains a non-exhaustive list of factors that guide the court in the exercise of its discretion.

(i) The Application

[10] While the applicant is not presumptively entitled to costs in this case because there was divided success, she did obtain some relief that included an order requiring the condominium corporation to maintain and repair common elements appurtenant to the applicant’s unit and to pay some ensuing damages, for work that the respondent had not been willing to undertake without a court order. Having now considered the parties’ submissions and the fact that the applicant had to bring the application in order to obtain that relief, I have decided that the applicant is entitled to some costs of the application, on a partial indemnity scale but less than what she has asked for (in an amount that I will fix in the next section of this endorsement dealing with quantum).

(ii) The Fresh Evidence Motion

[11] While not everything that was requested by the applicant was granted on the motion for fresh evidence, the respondent resisted the request to put before the court evidence that ultimately was important to my decision, concerning leaks that had occurred after the June 4, 2019 hearing. That too is a consideration that might have supported a finding that the applicant was entitled to some costs of the motion for fresh evidence.

[12] However, the applicant represented herself on the motion for fresh evidence. The respondent correctly points out that the test for recovery of costs for a lay litigant not only requires that she demonstrate that she spent time and effort to do the work ordinarily done by a lawyer but also requires that she demonstrate, through evidence properly before the court, that she incurred an opportunity cost by foregoing remunerative activity as a result. See Mustang Investigations v. Ironside, 2010 ONSC 3444 (Div. Ct.) at para. 23, citing with approval Fong v. Chan (1999), 46 O.R. (3d) 330. [1]

[13] The applicant submits that working on the motion took her away from other income earning activities on behalf of her family, but there is no evidence of this. The respondent contends that, absent some evidence of a lost remunerative opportunity, costs for the applicant’s time should not be awarded. See Logtenberg v. ING Insurance Co., at para. 16. I agree that, in the absence of any evidentiary support, the applicant’s claim for compensation for her own time spent on the motion for fresh evidence does not meet the test. This is not the first time that it has been pointed out to the applicant in these proceedings that evidence must be presented in the form of an affidavit and not through submissions.

[14] There will be no costs of the motion for fresh evidence awarded to either party.

Quantum of Costs

[15] According to the plaintiff, the amount at issue in the proceeding was approximately $60,000.00. The respondent indicates that it was less than $50,000.00. My calculations would put the total amount at issue slightly higher than this, but it is roughly in this ballpark.

[16] With this ballpark in mind, I do not consider the partial indemnity costs of the applicant for the application (of $38,805.56 plus $5,745.77 in disbursements) to be proportionate to the amounts that were at issue. They are also in excess with what the respondent could reasonably have expected to pay if it lost. An objective measure of what the respondent reasonably expected can be found in the costs outline that its counsel delivered at the June 4, 2019 hearing, before the outcome of the application was known. The partial indemnity costs indicated for the respondent in that costs outline was for a total of $15,568.09 (all inclusive).

[17] Without intending any criticism of the applicant’s counsel for how he handled this case and his client, it is not reasonable to expect the respondent to pay for 149.7 hours of the lawyer’s time on an application such as this, when the respondent’s lawyers spent approximately 67 hours. There may be a justification for the applicant’s counsel having spent more time than respondent’s counsel, but I am not satisfied that it was reasonable (or that the respondent would have reasonably expected) that the applicant’s counsel would spend more than double the amount of time spent by respondent’s counsel.

[18] There is no evidence of any material lengthening of the proceeding by the respondent. The mere fact that it would not agree with the applicant’s position and required the applicant to comply with the Rules is not grounds to enhance a costs award against it. The respondent also points out that some of the arguments made by the applicant about the conduct of the proceeding and the justification for her higher costs are based on submissions and not evidence.

[19] The divided success is another factor relevant to my determination of the appropriate quantum of costs. The applicant sought many heads of relief that were not granted, some of which involved serious allegations of wrongdoing, including claims for oppression and punitive damages.

[20] The determination of the appropriate amount of costs does not lend itself to an exact mathematical calculation in this case. In the exercise of my discretion, having regard to the Rule 57.01 factors referred to above and the submissions of the parties, I am awarding the applicant her partial indemnity costs of the application fixed in the amount of $15,000.00 plus applicable taxes.

[21] The respondent’s disbursements are also significantly lower than those claimed by the applicant. However, a large amount of the disbursements claimed by the applicant were incurred directly by her. Absent evidence or explanation, I am not prepared to order the respondent to reimburse amounts claimed to have been incurred by the applicant directly. Even a line of the listed disbursements during the period that the applicant was represented by counsel is said to include $1,650.82 paid directly by the applicant. There may also be some non-recoverable costs listed under counsel’s disbursements. However, I am not prepared to parse through those, as that is not the role of the court.

[22] Ultimately, I am not satisfied that the disbursements said to have been paid directly by the applicant are properly recoverable. In the exercise of my discretion, I am awarding the applicant her disbursements on the application fixed in the reduced amount of $3,649.16 plus HST (which excludes disbursement amounts said to have been paid by the applicant directly).

[23] Although even these reduced disbursements that I have awarded to the applicant significantly exceed those claimed by the respondent, I can see that there could be justification for the applicant’s disbursements being higher given what was in issue for the applicant and the onus that was on her in the first instance.

Costs Award

[24] The applicant is entitled to her partial indemnity costs of the application fixed in the amount of $15,000.00 for lawyer’s fees, and $3,649.16 for disbursements, plus applicable taxes on both amounts, payable forthwith by the respondent. There shall be no costs to either party of the motion for fresh evidence.

Kimmel J. Date: February 26, 2020

[1] I am aware of a more recent decision I this area from the Court of Appeal for Ontario, Benarroch v. Fred Tayor & Associates P.C., 2019 ONCA 228 and from the Superior Court in Kreppner v. HMQ, 2020 ONSC 70. These cases uphold the requirement of some evidence of a lost opportunity(ies) for an award of remuneration to a self-represented party.