Court File and Parties

COURT FILE NO.: CV-20-650464 DATE: 20220228 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ELIOT ABRAHAMS AND: THE ATTORNEY GENERAL OF ONTARIO, representing HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, JUDY GOLDENFAJN-ABRAHAMS and TILDA ROLL

BEFORE: VERMETTE J.

COUNSEL: Eliot Abrahams, self-represented Andi Jin, for the Attorney General of Ontario representing Her Majesty the Queen in right of the Province of Ontario Sarah L. Jones, for Judy Goldenfajn-Abrahams Tilda Roll, self-represented

HEARD: In writing

Endorsement as to Costs

[1] On January 24, 2022, I released an endorsement dismissing this action on the basis that it is vexatious and constitutes an abuse of process. The parties were not able to agree on costs and have delivered costs submissions.

Positions of the Parties

a. Position of the Defendant Attorney General of Ontario

[2] The Attorney General of Ontario seeks his costs at a partial indemnity rate in the amount of $1,000.00. The costs outline that he filed before the hearing of the motion requested costs in the amount of $2,000.00 on a partial indemnity basis, and reflected costs in the amount of $2,173.75 based on time spent. Having had the benefit of my reasons on the motion, the Attorney General now seeks costs in the amount of $1,000.00 and submits that such a costs award is appropriate. He also points out that on May 21, 2021, he offered to settle this motion on a without costs basis, but the Plaintiff refused.

b. Position of the Defendant Judy Goldenfajn-Abrahams

[3] Ms. Goldenfajn-Abrahams seeks costs on a partial indemnity basis in the amount of $4,333.70. She submits that the costs claimed are reasonable and notes that counsel was required to review the numerous prior family law decisions and research the applicable case law. She also submits that there was no delay in bringing the motion to strike and points out, among other things, that her current counsel was only retained on March 8, 2021. Ms. Goldenfajn-Abrahams argues that the delivery of her Statement of Defence does not preclude a costs award because it is clear from her Statement of Defence that she always took issue with the sufficiency of the Plaintiff’s claim.

c. Position of the Defendant Tilda Roll

[4] Ms. Roll filed a costs outline seeking costs in the amount of $4,019.25, which she identifies as “her time spent as the client, and lost opportunity”. [1] She claims an “allowance rate” of $240 per hour for her, and $120 per hour for her assistant. While the other Defendants only claim costs in relation to the motion and do not claim any costs with respect to other steps in the litigation (such as the preparation of a Statement of Defence), Ms. Roll is claiming costs for three hours that relate to the preparation and delivery of her Statement of Defence and her review of the other Defendants’ Statements of Defence, and for the court fee paid to file her Statement of Defence. Her costs outline includes the following statement:

Ms. Roll has been negatively impacted by this vexatious matter as she has been unable to take on a few files due to her unavailability, and due to commitments required by her to complete the motion and factum materials in accordance with a set timeline.

d. Position of the Plaintiff

[5] The Plaintiff’s position is that no costs should be awarded. He submits that the Defendants did not move at an early stage, contrary to Rule 21.02 of the Rules of Civil Procedure, and that costs would have been minimized had the motion been brought early. He complains that he did extensive work in relation to the action, including preparing an affidavit of documents and motion materials in anticipation of a number of motions. The Plaintiff also consulted with legal counsel to obtain an opinion and to help formulate a plan. He included with his submissions a copy of a law firm’s invoice in the amount of $565.00.

[6] With respect to the costs claimed by Ms. Goldenfajn-Abrahams, the Plaintiff argues that they are not reasonable and that the time spent by her counsel is significantly higher than the time spent by the other Defendants. With respect to the costs claimed by Ms. Roll, the Plaintiff submits that her submissions do not comply with the decision of the Court of Appeal in Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228 (“Benarroch”), as required in paragraph 47 of my Endorsement. Further, he points out that Ms. Roll’s factum was filed late, and he argues that she should not be awarded any costs for the preparation of her factum.

Entitlement to Costs

[7] The Defendants were successful on this motion. In my view, there are no factors in this case that militate against the general principle that costs should follow the event and that the costs of the motion should be fixed and ordered to be payable within 30 days pursuant to Rule 57.03(1)(a) of the Rules of Civil Procedure.

[8] I decline to deny costs or reduce the quantum of costs on the basis of any delay in bringing the motion to strike. The Attorney General of Ontario and Ms. Goldenfajn-Abrahams are only seeking costs with respect to the motion to strike and are not seeking any costs with respect to the other steps in the action. Since the Plaintiff did not agree to have his action dismissed, it was necessary for the Defendants to bring this motion and costs were incurred as a result. Further, given that this action was found to be vexatious and an abuse of process, it is appropriate that the Plaintiff be ordered to pay costs.

[9] While the costs sought by Ms. Roll are not limited to the motion, this issue is overridden by the fact that her submissions do not comply with the principles set out in Benarroch.

[10] In Benarroch, the Court of Appeal stated the following at paragraphs 27-28 and 32-35:

[27] Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.) explained that, where a litigant is self-represented, some compensation may be awarded for lost opportunity costs, even in the absence of payments made to a lawyer. That compensation, however, is not for the time and effort that any litigant would have devoted to the case. It 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. The self-represented litigant must also show that an opportunity cost was incurred because some remunerative activity was forgone.

[28] Where the self-represented litigant is a lawyer, he or she will not recover anything for the time spent on the matter that would necessarily have been devoted to the case had outside counsel been retained. There will likely be no clear way to differentiate between time devoted by the lawyer that would have been spent on the matter as “client” and time devoted in lieu of retaining an outside lawyer to deal with the matter. Some time is clearly either “client time” or “lawyer time”, but much of the time will be a blend of both.

[32] A further caution made in Fong is that an award of lost opportunity costs should be “only a ‘moderate’ or ‘reasonable’ allowance for the loss devoted to preparing and presenting the case”: at para. 26. This signals that the court should avoid a straight application of a lawyer’s hourly rate. Regular 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 business person. These amounts should be taken into account in the analysis of a proper costs award, but they cannot be recovered as they would if a lawyer had been hired as external counsel.

[33] 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 forgone 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.

[34] Where, as here, the self-represented party is a lawyer, the lawyer will be treated in substantially the same way as any other self-represented litigant. In other words, the self-represented lawyer will receive no compensation for the time that the lawyer would have devoted to the matter as a client if external counsel had been retained. In addition, the lawyer will not necessarily recover his or her regular or even partial indemnity rate for all of the time devoted to the work ordinarily done by a lawyer retained to conduct the litigation. He or she will only get an “allowance” for the lost opportunity to devote the time to remunerative activities.

[35] […] 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. [Emphasis added.]

[11] In my view, Ms. Roll has failed to provide satisfactory evidence of lost opportunity costs/forgone remunerative activity, her costs outline reflects a straight application of her hourly rate, and any attempt to distinguish “client time” from “counsel time” is unclear. Accordingly, in light of the principles set out in Benarroch, any costs award with respect to the motion should be nominal.

Quantum

[12] The quantum of costs sought by the Attorney General of Ontario is less than the amount reflected in his costs outline and is eminently reasonable.

[13] With respect to the costs sought by Ms. Goldenfajn-Abrahams, the partial indemnity rate used in the costs outline for Ms. Jones is too high. As a general rule of thumb, partial indemnity rates are 60% of full indemnity rates: see James v. Chedli, 2020 ONSC 4199 at para. 14. Further, I am of the view that the total number of hours spent by Ms. Goldenfajn-Abrahams on the motion slightly exceeds what would reasonably be expected on this type of motion in the context of an action brought under Rule 76 and where all three Defendants largely repeated the same arguments. Consequently, a reduction must be applied to the quantum sought by Ms. Goldenfajn-Abrahams. In my view, a reasonable quantum is $2,700.00.

[14] I find that an appropriate amount for a nominal costs award in favour of Ms. Roll is $750.00. In coming to this amount, I took into account the quantum of the other Defendants’ costs awards (on a comparative basis) and the fact that Ms. Roll incurred certain disbursements in relation to the motion (e.g., court filing fee).

Conclusion

[15] Taking the foregoing into account, as well as the factors set out in Rule 57.01(1) of the Rules of Civil Procedure, I find that the fair and reasonable awards of costs on a partial indemnity basis in favour of the Defendants are in the following all-inclusive amounts:

a. $1,000.00 in favour of the Attorney General of Ontario;

b. $2,700.00 in favour of Ms. Goldenfajn-Abrahams; and

c. $750.00 in favour of Ms. Roll.

[16] Accordingly, I order the Plaintiff to pay these amounts to the Defendants within 30 days.

Vermette J. Date: February 28, 2022

[1] This amount also includes disbursements in the amount of $599.25.