Court File and Parties
COURT FILE NO.: CV-18-76859 DATE: 2020/06/01 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Gladys Segura Mosquera, Plaintiff -and- Rogers Communications Inc.- Operator of Fido Solutions, Defendant
BEFORE: The Honourable Justice P. Kane
COUNSEL: Self-represented, Counsel for the Plaintiff Kyle Lambert, for the Defendant Rogers Communication Inc. Vanessa Wynn-Williams, for the Proposed Defendant Canadian Radio-Television and Telecommunications Commission
Costs decision
[1] The plaintiff successfully brought a motion to set aside the November 23, 2018 order dismissing her motion to transfer her Small Claims Court proceeding, No. SC-17-143801 (the “SC Action”), to this Court and to add the Commission for Complaints for Telecom-Television Services (the “CCTS”) and the Canadian Radio-Television and Telecommunications Commission (the “CRTC”) as defendants.
[2] The court in setting aside the November 23, 2018 order dismissing the plaintiff’s motion to transfer her SC Action to this Court, ordered that such motion should proceed and be determined on its merits and as such, did not decide the merits thereof.
[3] The plaintiff seeks costs and served a Bill of Costs dated November 25, 2019, in which she claims $103,764 which includes $102,960 on a partial indemnity scale at $90 per hour for 1,144 hours of her time as a self-represented litigant, $720 for her court attendance and $84.71 for disbursements.
[4] Rogers filed submissions dated December 16, 2019 opposing the plaintiff’s claim for costs.
[5] The plaintiff on January 9, 2020 filed lengthy submissions in reply.
[6] Counsel for the CRTC appeared on this motion but neither argued nor filed responding materials on the motion. The CCTS neither filed responding materials nor appeared on this motion.
Analysis
[7] In granting the plaintiff’s motion, the Court concluded its decision with the following provision as to cost:
- Any party seeking costs of this motion shall within 30 days from the date of this decision submit brief written argument including a draft bill of costs and a summary of time dockets or time and dates of work performed and claimed. (emphasis added)
[8] The plaintiff’s cost submissions do not comply with the above order in that:
a. she did not detail her time expended and the worked she performed per date on this motion; b. she included her time and disbursements for her original November 23, 2018 motion; c. the $84.71 of disbursements claimed provides no breakdown or the nature thereof beyond a charge of $0.10 per undisclosed item or event; and d. includes no claim as to HST.
[9] In her reply submissions, the plaintiff acknowledges that the costs for the original November 23, 2018 motion is a matter to be determined upon the argument of that motion to transfer the SC Action to this Court and to add the CRTC and the CCTC as defendants.
[10] The plaintiff does not contest that she was unemployed. Her Notice of Motion and reply cost submissions confirm her unemployment and resulting limited income. She does not identify any income lost in bringing this motion to set aside the November 2018 dismissal order.
[11] In her reply submissions, the plaintiff acknowledges that she kept no record of her time expended or the work she performed per date as to this motion or her November 23, 2018 motion.
[12] The plaintiff submits that to deny her costs because she lost no income or other remuneration in bringing this motion:
a. is discriminatory in awarding costs to employed litigants and denying costs to unemployed self-litigants because they lost no remuneration in presenting the legal proceeding; b. would contravene her s. 15 rights under the Canadian Charter of Rights and Freedoms; c. would contravene ss. 137.1-137.5 of the Courts of Justice Act, R.S.O. 1990, c. C.43, namely to encourage individuals to express themselves on matters of public interest and to promote participation in debates of public interest; d. is unfair, as she does not have home internet service to electronically record the date, description and time of her work on this motion and failed to manually record it.
[13] Neither the CRTC or the CCTS were parties to this proceeding upon the plaintiff’s argument of this motion. That fact, combined with their lack of involvement in argument of the motion, dictates that it would be inappropriate to award costs against either of those entities.
[14] Pursuant to r. 57.01:
a. it was appropriate for the plaintiff to bring this motion, as to which she was successful; b. the purpose and outcome of this motion was important to the relief the plaintiff seeks to pursue in this Court; c. the motion was of lower complexity; d. the presentation and argument of the motion proceeded in a timely and appropriate manner; and e. the factors as to amounts claimed or recovered, apportionment of liability, whether conduct shortened or lengthened the proceeding duration, whether any conduct was improper, vexatious or unnecessary or taken through negligence, mistake or excessive caution or whether a party’s denial of or refusal to admit anything that should have been admitted, are not relevant.
[15] An award of cost normally is on a scale of partial indemnity unless there are special circumstances which are not present in this case.
[16] A cost award is intended to reimburse a successful party for some of the legal costs they incurred or the loss of income they suffered in pursuing that step in the proceeding.
[17] The principles established by the Court of Appeal as to the entitlement of a self-represented litigant to an award of costs include the following:
a. a self represented litigant has no automatic right to recover costs; b. self represented litigants are not entitled to costs calculated on the same basis as those of a litigant who retains counsel; c. all litigants suffer a loss of time through their involvement in the legal process and a self represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case; d. cost should only be awarded to those lay self represented litigants who can demonstrate that they devoted time and effort to the work ordinarily done by a lawyer retained to conduct the litigation and that as a result, the lay litigant incurred an opportunity cost by forgoing remunerative activity: e. a lay litigant must satisfy the court that lost opportunity costs, such as turned away business with a resulting loss of revenue, have been suffered because the self represented party has foregone remunerative activity: Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.), at para. 26 and Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228, at paras. 18, 26, 27 and 33.
[18] The plaintiff has not alleged or established that she incurred any lost opportunity, liability or out-of-pocket costs in relation to presenting and arguing this motion.
[19] An award of costs is not a reward, a damage award or compensation for emotions related to the legal proceeding. If a party has no expenses incurred for legal fees or has not lost income in relation to that step of the proceeding, there is no such liability or loss of income to be reimbursed.
[20] It cannot be contended therefore that a party who is denied an award of costs and who has not incurred liability for such legal expenses nor lost income, is thereby denied their Charter s. 15 right to equal protection and equal benefit of a law created to reimburse a successful party for such a liability or loss of income.
[21] The plaintiff has presented nothing to support her unarticulated position that not being entitled to reimbursement for costs she has not incurred or income she has not lost, discourages participation by herself or others to express themselves on or debates matters of public interest.
[22] Sections 137.1 - 137.5 of the Courts of Justice Act address the prevention of legal proceedings that limit freedom of expression on matters of public interest, or gag proceedings. The plaintiff brought the SC Action. Neither this nor her November 23, 2018 motion are a s. 137.1(3) motion to dismiss her action as gag litigation.
[23] A court’s refusal to award costs to reimburse out of pocket expenses not incurred, does not contravene ss. 131.1 - 137.5 of that legislation.
[24] Many events and facts, both historically and currently, are recorded in writing and not by a computer. The plaintiff had capacity to record the work she performed, it’s duration and the date thereof in bring this motion regardless of her lack of access to a computer.
Conclusion
[25] Based upon the above analysis, no costs are awarded on this motion.