Court File and Parties

COURT FILE NO.: CV-19-619104-0000

DATE: 20210531

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Slobodan Pavloski, Datsun Property Management Ltd., Sadhna Gurha, Dashpal Singh Takhar, Kylwant Ajimal, Krishandat Ramnarain and York Condominium Corporation No. 414

AND:

Krishnanand Ramkissoon

BEFORE: J.T. Akbarali J.

COUNSEL: Paul Robson, for the plaintiffs, and proposed plaintiff Charles Fernandes

Krishnanand Ramkissoon, in person

HEARD: In writing

ENDORSEMENT

[1] On May 14, 2021, I released an endorsement dismissing a motion brought by the plaintiffs in which they sought interim injunctive relief restraining the defendant from publishing, continuing to publish, or otherwise disseminating on the internet any articles or statements that reference the plaintiffs and their business affairs: 2021 ONSC 3554.

[2] The parties have been unable to agree on costs, and as a result, I have received written submissions.

[3] The defendant, who is the successful party, is self-represented. He describes himself as a “retired sexagenarian with serious brain and heart issues that have left him with lingering ailments, deaf in one ear and sporadically brain-fogged and dazed.”

[4] His bill of costs demonstrates a significant time commitment to respond to the plaintiffs’ motion. It seeks $3,885.75 in costs for close to 100 hours of time at $40/hr on a partial indemnity scale, claimed for time spent by the defendant’s wife. In addition, he seeks $277.75 in disbursements.

[5] The defendant relies upon Fong v. Chan, 1999 CanLII 2052 (ON CA), where the Court of Appeal held that self-represented litigants can be entitled to costs:

Quite apart from authority and as a matter of principle, it seems to me to be difficult to justify a categorical rule denying recovery of costs by self-represented litigants. As noted in Fellowes McNeil, supra, and in Skidmore, supra, modern cost rules are designed to foster three fundamental purposes: (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.

[6] The plaintiffs rely on Girao v. Cunningham, 2021 ONCA 18, where the Court of Appeal for Ontario recently held that fees should only be awarded to lay litigants who demonstrate that they (i) devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation; and (ii) as a result, incurred an opportunity cost by foregoing remunerative activity. They argue that the defendant satisfies neither of these requirement and, as a result, only minimal costs should be awarded.

[7] With respect to the first factor set out in Girao, I have no doubt that the defendant and/or his wife devoted significant time and effort to do the work ordinarily done by a lawyer. Although he filed no factum, the defendant’s affidavit included references to case law. Moreover, he prepared thoughtful materials.

[8] With respect to the second factor, there is no submission or evidence before me that the defendant or his wife incurred an opportunity cost by foregoing remunerative activity.

[9] However, while the defendant did not forego an opportunity for remunerative work, given his health condition, I accept that litigating costs him in intangible ways. His materials describe the difficulty in representing himself while struggling with his health limitations. Moreover, as a retired person, he would have spent his working life earning his retirement. I see no principled reason why someone who is retired, after having worked to ensure they could have the benefits of retirement and not have to pursue remunerative activities anymore, does not suffer a cost when they have to give up the benefit they have earned through remunerative activity in order to act for themselves.

[10] Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The court exercises its discretion taking into account the factors enumerated in r. 57.01 of the Rules of Civil Procedure, including the principle of indemnity, the reasonable expectations of the unsuccessful party, and the complexity and importance of the issues. Overall, costs must be fair and reasonable: Boucher v. Public Accountants’ Council for the Province of Ontario, 2004 CanLII 14579 (Ont. C.A.), 71 O.R. (3d) 291, at paras. 4 and 38. A costs award should reflect what the court views as a fair and reasonable contribution by the unsuccessful party to the successful party rather than any exact measure of the actual costs to the successful litigant: Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), 2002 CarswellOnt 4020, 118 A.C.W.S. (3d) 341 (C.A.), at para. 4.

[11] Keeping in mind the three purposes of costs awards, the defendant has not established that he or his wife incurred an opportunity cost by foregoing remunerative activity, so the principle of indemnity does not apply. Moreover, if I were to award costs against the plaintiffs for bringing an unsuccessful motion on the basis of inappropriate behaviour, in the absence of any claim for indemnification, the costs award would function as a type of punishment, which is not the proper role of costs.

[12] However, the third principle laid out in Fong - encouraging settlements - is principle I can appropriately consider despite the fact that the defendant is self-represented and has not foregone remunerative activity to act for himself. The plaintiffs should not have carte blanche to litigate with impunity on the basis that there will be no costs exposure, especially when doing so costs the defendant in other ways, as I have noted above. The plaintiffs, like all other litigants, should be incentivized to consider reasonable settlement positions. I thus conclude that the goal of promoting settlements should still be addressed through a modest costs award in this proceeding. Indeed, the plaintiffs have accepted that some costs award is appropriate.

[13] In my view, it is fair and reasonable that the plaintiffs pay $1,500, all inclusive, towards the defendant’s costs.

J.T. Akbarali J.

Date: May 31, 2021