COURT FILE NO.: CV-19-81365
DATE: 20210420
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HUI LING LI, Plaintiff
-and-
DENIS MICHAUD, DEAN MICHAUD, 8443971 CANADA CORPORATION and 2336789 ONT ARIO INC., Defendants
BEFORE: Mr. Justice Pierre E. Roger
COUNSEL: Self-represented Plaintiff/Responding Party
J.F. Lalonde, Counsel for the Defendants/Moving Parties
HEARD: In writing
costs endorsement
Background
[1] I dismissed the defendants’ motion for summary judgment: Li v. Michaud, 2021 ONSC 1896. The parties have been unable to agree on the costs of that motion. Therefore, as directed, they have filed written submissions on costs.
[2] On the motion for summary judgment, the parties filed numerous conflicting and voluminous affidavits.
[3] The defendants are land developers. They purchased and developed a property adjacent to the plaintiff’s property; they built a small apartment building on the property. During the excavation of their property, the defendants removed some of the roots of a large maple tree. Thereafter, in order to construct their building, the defendants cut all the branches of that large maple tree that were overhanging on their side of the property line. This led to the destruction of the large maple tree. The plaintiff is self-represented. She brought a simplified procedure action against the defendants seeking damages for the destruction of the large maple tree.
[4] The parties exchanged pleadings and affidavits of documents. During the spring and summer of 2020, the plaintiff repeatedly asked the defendants to attend at an examination for discovery, as is allowed under Rule 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The defendants steadfastly refused to attend, and instead, brought a motion for summary judgment. The plaintiff brought a motion seeking the defendants’ attendance at their examination for discovery, but that motion was not heard. On January 28, 2021, while in the midst of the motion for summary judgment, after receiving the plaintiff’s factum which complained of the defendants’ refusal to attend at an examination for discovery, defendants’ counsel wrote to the plaintiff to offer that his clients be examined for discovery. It seems the plaintiff was then more preoccupied with dealing with the defendants’ voluminous motion for summary judgment, and examinations for discovery were not conducted.
[5] I dismissed the defendants’ motion for summary judgment because I found that the moving party defendants had not met their initial evidentiary burden of demonstrating that there was no genuine issue requiring a trial regarding their defence; the plaintiff’s evidence raised issues requiring a trial; granting a partial summary judgment would have frustrated the Hryniak objective of using summary judgments to achieve proportionate, timely and affordable justice; and I found conflicting allegations and disputes between the parties on almost everything such that exercising the fact finding powers under r. 20.04(2.1) would not have been in the interests of justice because a simplified procedure action already allows a comparatively timely, affordable and proportionate procedure that would more fairly and justly resolve these conflicting issues between the parties.
[6] The plaintiff is self-represented. She says that she spent 418.5 hours in order to respond to the defendants’ motion for summary judgment; this includes reviewing the defendants’ numerous and voluminous materials and preparing responding materials. She says that she had to take time off work – that she used 16 days and 5.5 hours of vacation time that could otherwise have been paid out as income if not taken to work on this motion. She argues that the defendants brought their motion for summary judgment as a litigation tactic to delay and to force her to incur costs, that she had to arrange for the translation of some of their materials, and that bringing this motion for summary judgment was unreasonable in the circumstances of this case considering the expedited process already provided at Rule 76.
[7] The defendants argue that the plaintiff is not entitled to any costs because all motion materials will be used at the summary trial and because the plaintiff has not incurred an opportunity cost by foregoing any remunerative activity. They argue that the costs of the motion should be in the cause.
[8] The defendants admit that the plaintiff performed work that would ordinarily have been done by a lawyer. However, they argue that the plaintiff is a federal public servant and that “… it is known that most federal public servants have flexible schedules, generous vacation entitlements, generous holidays, generous benefits, and are secure in their positions through collective rights and a protective legal framework. Since COVID, the vast majority of federal public servants in Ottawa do not attend work. They work from home with little or no supervision. The plaintiff is likely one of those. She has incurred no loss of employment or business income. There is no evidence or even a suggestion that the motion took her away from any business pursuit. The plaintiff was, in all likelihood, working on the motion while being paid by her employer, the federal government.”
Issue
[9] The issues include whether the plaintiff, a self-represented party, is entitled to costs, and if so, what is the appropriate amount of costs.
Analysis
[10] The costs of and incidental to a proceeding or to a step in a proceeding are in the discretion of the court: s. 131 of the Courts of Justice Act. Rule 57 provides for factors to be considered by the court in the exercise of its discretion over costs.
[11] Self represented parties may, within the discretion of the trial or motion judge, receive costs: Fong v. Chan, (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (Ont. C.A.), recently affirmed and expanded in Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228, 433 D.L.R. (4th) 112 and Girao v. Cunningham, 2021 ONCA 18.
[12] Self-represented litigants may receive costs awards where they can demonstrate that they accomplished work ordinarily done by a lawyer and that they incurred an opportunity cost by forgoing remunerative activity as a result: Benarroch at para. 18, 27; Fong at para. 23.
[13] The Court of Appeal in Girao, at para. 9, puts it as follows:
two conditions […] must be met if a self-represented litigant is to be awarded a fee allowance. Fees should only be awarded to those lay litigants who can demonstrate that they:
a. devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation; and
b. as a result, incurred an opportunity cost by foregoing remunerative activity.
[14] At para. 26, in Fong, Sharpe J.A. states that self-represented litigants:
should not recover costs for the time and effort that any litigant would have to devote to the case. 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: affirmed in Benarroch at para. 19.
[15] As well, self-represented litigants should not receive compensation for the time they would have spent instructing lawyers or even attending events that they would have attended as a party in any event: Benarroch at para. 26.
[16] Costs for self-represented litigants “is only for the work done by the self-represented litigant over and above the normal involvement of a client, and provided it concerns work that would ordinarily be accomplished by a lawyer”: Benarroch at para. 27.
[17] Self-represented litigants are not compensated in the same quantum as individuals who have retained a lawyer, but rather, should “receive only a “moderate” or “reasonable” allowance for the loss of time devoted to preparing and presenting the case: Fong at para. 26. In interpreting this phrase, the court in Benarroch stated at para. 32 that “[r]egular hourly rates are of course relevant, as would be the daily rate of a self-represented labourer or the lost profits of a self-employed businessperson. These amounts should be considered in the analysis of a proper costs award”.
[18] At para. 35 of Benarroch, the Court of Appeal rejected the submissions that only nominal costs should be awarded. In rejecting this argument, the court stated: “Where there is little evidence of lost opportunity costs, any award the court may decide to make will likely be in a nominal amount. However, where the self-represented party has demonstrated that the lost opportunity costs were significant, as here, an award for an amount greater than mere nominal costs is justified.”
[19] In deciding costs for self-represented parties, it is useful to bear in mind the policy objectives outlined in Fong, at para. 22: “(1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behaviour by litigants. It seems to me that all three purposes are fostered by allowing the trial judge a discretion to award costs to self-represented litigants.”
[20] The utility of using costs to reinforce such goals was reiterated in Girao at paras. 10 and 11. In that case, despite the self-represented party not having shown that she had foregone remunerative opportunities, she was awarded a nominal costs award to reflect disapproval of the opposing party’s inappropriate trial tactics: at para. 11.
[21] At para. 18 of Benarroch, Justice Rouleau stresses that “claims for lost opportunity costs should [not] become complex hearings where the self-represented claimant is called upon to account for every minute of the day and prove every penny of revenue that was lost.” In Girao, at para. 13, the Court of Appeal interpreted this paragraph to mean that lump sum costs awards may be preferable, in order to avoid unnecessary complexity. In Girao, at para. 12, the court stated that the “hourly rate of $150 per hour falls at the very high end of the range established by case law”.
[22] In Blustein v. Kronby, 2010 ONSC 1718, 2010 CarswellOnt 1985, Belobaba J. referred to a rate of $60 per hour for self-represented litigants: para. 20. In McLoughlin v. McLoughlin Estate, 2016 ONSC 114, Beaudoin J. states, at para. 97:
As for Barry’s claim for costs as self-represented litigant, I am satisfied that Barry had to forego remunerative employment as a self-employed communications consultant to prepare responding materials and, to his credit, he prepared persuasive documents that included well- drafted affidavits from himself, his sister and sister-in-law. I would not allow the 385 hours as claimed. This would translate into 10 weeks of fulltime work. Barry cannot claim the time he would normally spend as a litigant in responding to an application but only for doing the work that a lawyer would have completed. As for his time he spent in preparing his accounts as Attorney for property and Estate Trustee, Barry was required to prepare these accounts and he can be compensated by the estate for completing those tasks. I allow 80 hours for the work that a lawyer would have completed in response to the application at the rate of $100 per hour for a total of $8,000.
[23] At paragraph 10 of her costs submissions, the plaintiff states that “Besides many evenings and weekends, Li used 16 days and 5.5 hours of vacation time (that could be cashed out as income if not taken) to work on this motion.” That is the extent of the information provided to the court about her loss of opportunity.
[24] The above statement by the plaintiff, about her loss of vacation time, was not provided in an affidavit (and was in part misspelled). However, I specifically directed the parties, in the last paragraph of my decision dismissing the motion for summary judgment, to provide brief written submissions not exceeding three pages dealing with the issue of costs. I did not say that the self-represented party was to provide an affidavit. The defendants argue that there is no evidence of a loss of opportunity before the court, but they did not request that the plaintiff file an affidavit to confirm what she states at paragraph 10 of her submissions, and they did not request an opportunity to cross-examine the plaintiff either on that statement, or on an affidavit had they required that she confirm what she said at paragraph 10 of her submissions in an affidavit.
[25] I find it somewhat disingenuous to argue that a statement made by a self-represented litigant that she took 16 days of vacation plus 5.5 hours to work on responding to a motion should be given absolutely no weight when the court requested brief submissions not exceeding three pages and no request was made that the statement be confirmed in an affidavit or subjected to cross-examination. I cannot simply assume what is alleged by the defendants when the plaintiff says in her written submissions that she took vacation time - the defendants could have requested that this be confirmed in an affidavit and could have requested to cross-examine the plaintiff, they did not. Moreover, as indicated by the Court of Appeal in the above referenced decisions, we should not be inviting “unnecessary complexity” when dealing with costs.
[26] The plaintiff was successful in defending the defendants’ motion for summary judgment. Her materials were relatively well prepared and were helpful to the court in deciding the matter. This was an important motion for the parties and the defendants filed voluminous materials, some in English and some in French.
[27] There is no question that bringing an unsuccessful motion for summary judgment causes some delay in the conduct of a legal action. Here, the plaintiff requested to proceed with examinations for discovery during the summer of 2020. Although the pandemic was and is still ongoing, it is well-known that lawyers and parties conduct examinations for discovery virtually and did so during the summer and fall of 2020. There was, therefore, no valid reason for the defendants to refuse to be examined for discovery at a convenient time during the summer or fall of 2020. This refusal delayed the conduct of this action. It was subsequently offered too late, at the last minute before the motion was to be argued. Moreover, this motion for summary judgment was a risky proposition when one considers that a summary trial might have avoided the uncertainties associated with a motion for summary judgment. Unnecessary motions for summary judgment should be discouraged, and costs are a mean not only to indemnify successful litigants for the costs of litigation, but to encourage settlements and to discourage and sanction inappropriate behaviour by litigants.
[28] Applying the above, I find that the plaintiff is entitled to some reasonable amount for costs, either on the basis of a nominal amount or on the basis that she incurred an opportunity cost in accomplishing tasks that would have been done by a lawyer. She was the successful party and the above circumstances do not warrant ordering costs to be in the cause.
[29] I will not allow 418.5 hours, which appears excessive. The vacation time apparently taken by the plaintiff totals approximately 125 hours, which also appears excessive. A self-represented party is not entitled to receive compensation for the time they would have spent instructing lawyers or attending events that they would have attended as a party in any event. Moreover, some of the affidavits prepared by the plaintiff to respond to the defendants’ motion for summary judgment and some parts of her factum could be used or be helpful in presenting her evidence and arguments at a summary trial, and are therefore not entirely a lost effort.
[30] Considering the above, I will allow $5,000 for the plaintiff’s costs. This amount is a nominal amount considering the materials filed on this motion, which fairly and reasonably addresses the above. In addition, or alternatively, it reflects approximately 80 hours at about $60 per hour for the lost portion of the work that would ordinarily have been done by a lawyer and is well within the vacation time allegedly lost by the plaintiff.
[31] The costs award of $5,000 is payable by the defendants to the plaintiff within the next 30 days.
Mr. Justice Pierre E. Roger
Date: April 20, 2021
COURT FILE NO.: CV-19-81365
DATE: 20210420
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: HUI LING LI, Plaintiff
-and-
DENIS MICHAUD, DEAN MICHAUD, 8443971 CANADA CORPORATION and 2336789 ONT ARIO INC., Defendants
BEFORE: Mr. Justice Pierre E. Roger
costs endorsement
Roger J.
Released: April 20, 2021