Court File and Parties
COURT FILE NO.: CV-20-00634930-0000 DATE: 20210607
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
CANDICE CHRISTINE KIRKBY and CHRISIAN TOROK Applicants
– and –
RANDALL URIAH OTULAKOWSKI and MONICA HELEN OTULAKOWSKI Respondents
Counsel: Alexander Melfi, lawyer for the Applicants Self-represented and acting in person
HEARD: Written Submissions
COSTS ENDORSEMENT
DIAMOND J.:
[1] At the conclusion of my Endorsement released on May 5, 2021, I permitted the parties the opportunity to exchange written submissions in the event they were unable to resolve the costs of this application. The parties subsequently exchanged and filed costs submissions pursuant to a fixed schedule. I have now received and reviewed the parties’ respective costs submissions.
[2] The respondents, who were self-represented for the majority of this application, seek their costs payable by the applicants in the all-inclusive amount of $33,320.25. This amount is comprised of costs on both a partial indemnity rate and a substantial indemnity rate, as the respondents submit that they obtained a result better that the terms proposed in their Offer to Settle dated May 12, 2020.
[3] To begin, I do not find that the respondents’ Offer to Settle (contained in a lengthy letter) trigger the costs consequences of Rule 49.10 of the Rules of Civil Procedure. The respondents’ offer was not open for acceptance until the hearing of the application. While I find that the respondents’ offer (and additional correspondence they delivered) amounted to good faith efforts to try and resolved the dispute between the parties, I cannot find that the result achieved on this application was necessarily “better” than the terms of the respondents’ offer, as those terms were somewhat convoluted and went beyond the scope of the issues at play in this application. As such, any costs to be awarded to the respondents shall be on a partial indemnity basis.
[4] Even though the relief sought by the applicants was not granted, I accept that the application was in fact commenced as a result of and in response to the respondents’ unilateral actions, namely the removal of the paving stones and the planting of thorn bushes. That said, the respondents were clearly the successful parties on this application.
[5] The applicants submit that the costs claimed personally by the respondents as self-represented parties do not meet the test set out by the governing jurisprudence. In Girao v. Cunningham, 2021 ONCA 18, the Court of Appeal for Ontario held that costs should only be awarded to self-represented parties 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.
[6] The applicants submit that the respondents have not proffered any evidence to show that they were required to forgo other remunerative activity or that a lost opportunity cost was incurred in responding to this application. While there may be merit in that position, I do not find that to be a complete bar to the respondents’ request for costs. As recently put by my colleague Justice Akbarali in Pavloski et al. v. Ramkissoon, 2021 ONSC 3941:
“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.
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.
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.”
[7] The respondents should be entitled to some of their costs. In addition to the factors set out in Rule 57.01 of the Rules of Civil Procedure, as mandated by the Court of Appeal for Ontario in Boucher, I remain mindful of my obligation to consider what is “fair and reasonable” in fixing costs with a view to balancing compensation of the more successful party with the overall goal of fostering access to justice.
[8] I have no difficulty with the respondents’ proposed partial indemnity hourly rate of $60.00. However, the hours spent by the respondents (over 304 hours) are excessive, and in reviewing their Costs Outline, some of their time was incurred to deal with matters that are not recoverable as legal costs.
[9] Having regard to the results achieved and the reasonable expectation of the parties, in my view a fair and reasonable result is an order requiring the applicants to pay the respondents their partial indemnity costs of this application in the all-inclusive amount of $8,500.00. Order accordingly.
Diamond J.
Released: June 7, 2021
COURT FILE NO.: CV-20-00634930-0000 DATE: 20210607
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
CANDICE CHRISTINE KIRKBY and CHRISIAN TOROK Applicants
– and –
RANDALL URIAH OTULAKOWSKI and MONICA HELEN OTULAKOWSKI Respondents
COSTS ENDORSEMENT
Mr. Justice Diamond
Released: June 7, 2021