COURT FILE NO.: 18-00002276-00OT

DATE: 20200107

SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: 18-00002276-00OT
Belleville Small Claims Court File No.: 0469/18

RE: PETER GAMBLE, Plaintiff/Respondent

AND:

HER MAJESTY THE QUEEN in right of ONTARIO as represented by MINISTRY OF FINANCE and ONTARIO PENSION, Defendants/Moving Party

AND BETWEEN:

Court File No.: CV-18-000022776-00OT
Oshawa Small Claims Court File No.: 1876/18

SUPERIOR COURT OF JUSTICE – ONTARIO

ALLAN CORNER, Plaintiff/Respondent

AND:

HER MAJESTY THE QUEEN in right of ONTARIO as represented by MINISTRY OF FINANCE, Defendants/Moving Party

AND BETWEEN:

Court File No.: CV-18-000022776-00OT
Oshawa Small Claims Court File No.: 1877/18

SUPERIOR COURT OF JUSTICE – ONTARIO

GORDON THOW, Plaintiff/Respondent

AND:

HER MAJESTY THE QUEEN in right of ONTARIO as represented by MINISTRY OF FINANCE, Defendants/Moving Party

AND BETWEEN:

Court File No.: CV-18-000022776-00OT
Oshawa Small Claims Court File No.: 2276/18

SUPERIOR COURT OF JUSTICE – ONTARIO

JOSEF KREPPNER, Plaintiff/Respondent

AND:

HER MAJESTY THE QUEEN in right of ONTARIO as represented by MINISTRY OF FINANCE, MUNICIPAL PROPERTY ASSESSMENT CORPORATION, ONTARIO PENSION BOARD and ONTARIO MUNICIPAL EMPLOYEES RETIREMENT SYSTEM, Defendants/Moving Party

HEARD: By Written Submissions

COSTS ENDORSEMENT

[1] Her Majesty the Queen in Right of Ontario (the “Crown”) is a defendant in four actions commenced by Josef Kreppner, Peter Gamble, Gordon Thow, and Allan Corner in the Small Claims Court (three in Oshawa and one in Belleville). The Municipal Property Assessment Corporation (“MPAC”) is a defendant in the action brought by Mr. Kreppner.

[2] The Crown and MPAC brought motions for an order transferring the Small Claims Court actions to the Superior Court of Justice and to have them consolidated or heard one after another or as the trial judge directs. These motions were heard together. On November 20, 2019, I released an endorsement dismissing the motions.

[3] This is my endorsement with respect to costs.

[4] The plaintiffs were self-represented on these motions. Each plaintiff seeks costs of the motion brought in his action:

a. Mr. Kreppner, who took the lead role in arguing the motions, seeks costs on a substantial indemnity scale fixed in the amount of $21,726.28.

b. Mr. Corner seeks costs on a substantial indemnity scale fixed in the amount of $8,058.08.

c. Mr. Gamble seeks costs on a substantial indemnity scale fixed in the amount of $9,208.80.

d. Mr. Thow seeks costs on a substantial indemnity scale fixed in the amount of $8,529.78.

[5] The costs claimed are based on the number of hours expended by each plaintiff at a substantial indemnity hourly rate of $97.50 or such other rate as may be appropriate. Each plaintiff also seeks reimbursement of disbursements.

[6] The first question is whether, according to the principles set forth in the jurisprudence, the plaintiffs are entitled to an award of costs for time expended on these motions.

[7] In Fong v. Chan, 1999 CanLII 2052 (ON CA), 1999 CarswellOnt 3955, the Court of Appeal held that self-represented litigants are not entitled to costs calculated on the same basis as those of a litigant who retained counsel. The Court of Appeal held at para. 26 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 forgoing remunerative activity.

[8] The Fong decision was cited by the Divisional Court in Mustang Investigations Inc. v. Ironside, 2010 ONSC 3444 in which Jennings J., writing for the Court, held at para. 27 that a self-represented litigant who seeks costs must demonstrate that, “as a result of the lawyer-like work put on the file, remunerative activity was forgone”. Jennings J. held that without such proof, no costs are available.

[9] The Fong decision was recently cited by the Court of Appeal for Ontario in Benarroch v. Fred Tayer & Associates P.C., 2019 ONCA 228. The Court of Appeal summarized at para. 33 how the principles in Fong are to be applied:

In summary, as explained in Fong, a trial or application judge retains the discretion to award or not to award costs. Where the judge determines that an award is warranted and, based on the record, the judge is satisfied that lost opportunity costs have been suffered because the self-represented party has foregone remunerative activity, the judge is either to assess and fix “moderate” or “reasonable” costs, or to provide clear guidelines to an assessment officer as to the manner in which costs are to be assessed.

[10] None of the plaintiffs has shown that he has forgone remunerative activity as a result of devoting time and effort to do work ordinarily done by a lawyer in responding to these motions. In these circumstances, based on the principles in Fong and Benarroch, the self-represented plaintiffs are not entitled to an award of costs for time spent responding to these motions.

[11] I allow the claims by each plaintiff for disbursements and fix disbursements to be paid by the Crown and MPAC, jointly and severally, to Mr. Kreppner, and to be paid by the Crown to Messrs. Corner, Gamble, and Thow, as follows:

a. Disbursements are fixed in the amount of $763.78 to be paid to Mr. Kreppner.

b. Disbursements are fixed in the amount of $258.08 to be paid to Mr. Corner.

c. Disbursements are fixed in the amount of $1,018.88 to be paid to Mr. Gamble.

d. Disbursements are fixed in the amount of $242.28 to be paid to Mr. Thow.

[12] The costs as so fixed are to be paid within 30 days.

Cavanagh J.

Date: January 7, 2020