COURT FILE NO.: CV-21-00672382-0000
COURT FILE NO.: CV-22-00679310-0000
DATE: 20220629
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
WALTER CAMPBELL and OLAKEMI SOBOMEHIN
Applicants
- and –
TORONTO STANDARD CONDOMINIUM CORPORATION NO. 2600
Respondent
Walter Campbell and Olakemi Sobomehin, self-represented
Eric Kerson for the Respondent
AND BETWEEN:
TORONTO STANDARD CONDOMINIUM CORPORATION NO. 2600
Applicant
- and –
WALTER CAMPBELL, OLAKEMI SOBOMEHIN and ENID WING SUM CHAN
Respondents
Eric Kerson for the Applicant
Walter Campbell and Olakemi Sobomehin, self-represented
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] Pursuant to s. 46(1), para. 9 of the Arbitration Act, 1991,[^1] Olakemi Campbell (a.k.a. Sobomehin) and Walter Campbell brought an application to set aside an arbitral award requiring them to pay $30,641.72 to the respondent Toronto Standard Condominium Corporation No. 2600. I granted the Campbells’ application, and I dismissed the Condominium Corp.’s late-arriving cross-applications to enforce the arbitral awards as common area expenses.[^2]
[2] I advised the Campbells that self-represented litigants have a quite prescribed right to claim costs, but I directed that if the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Campbells’ submissions within 20 days of the release of my Reasons for Decision followed by the Condominium Corp.’s submissions within a further 20 days.
[3] The parties did not agree about the matter of costs, and the Campbells are seeking full indemnity costs in the amount of $37,814.65, or substantial indemnity costs in the amount of $30,453.52, against the Respondent, Toronto Standard Condominium Corporation No. 2600 (the “Condominium Corp.”) all-inclusive of HST and disbursements. The Campbells did not make a request for nor calculate costs on a partial indemnity basis.
[4] The Condominium Corp. submits that there should be no costs payable to the Campbells. In the alternative, the Condominium Corp. submits that the Campbells should receive a counsel fee of $1,666.66 plus disbursements of $391, which are their filing fees.[^3] The suggested counsel fee is based on the Condominium Corp.’s calculation of the per diem counsel fee granted to self-represented litigants by the Court of Appeal in Girao v. Cunningham,[^4] which I discuss below.
[5] The role of costs has grown from its historic role of indemnification for the cost of litigation. Modern costs rules are designed to advance five purposes in the administration of justice: (1) to indemnify successful litigants for the costs of litigation, although not necessarily completely;[^5] (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences;[^6] (4) to discourage and sanction inappropriate behaviour by litigants in their conduct of the proceedings;[^7] and (5) to encourage settlements.[^8]
[6] In my book, The Law of Civil Procedure in Ontario (4th edition)[^9] written with John Morden, I discuss the treatment of costs when the successful litigant is a self-represented litigant at paragraphs 10.96-10.97 as follows:
The Self-represented Litigant’s Entitlement to Costs
10.96 At one time, apart from disbursements, costs were not available to a self-represented litigant on the theory that a litigant was not entitled to recover compensation for his or her time and trouble in participating in the proceedings.[^10] This policy diminished over time as the courts and legislatures addressed the questions of whether a corporation or public authorities that employed a lawyer and paid a salary to him or her could claim costs,[^11] or whether a self-represented lawyer who was a party to a lawsuit ought to be able to claim costs for the conduct of the proceedings.[^12] Courts came to realize that the various policies or purposes that justified awarding costs to represented litigants applied to self-represented litigants. Under modern authority, both self-represented lawyers and self-represented litigants may be awarded costs including a counsel fee.[^13]
10.97 In Fong v. Chan,[^14] Sharpe J.A. concluded that both self-represented lawyers and self-represented lay litigants may be entitled to costs and that the costs may include allowances for counsel fees. Justice Sharpe observed that a rule precluding a recovery of costs to self-represented litigants would deprive the court of a useful tool to encourage settlements and to discourage or sanction inappropriate behaviour. However, self-represented litigants are not entitled to costs calculated on the same basis as litigants who retain counsel. Justice Sharpe stated:
The self-represented litigant 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.[^15]
In order to recover costs, the self-represented litigant is required to prove lost opportunities for remuneration and that he or she devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation.[^16] If an opportunity cost is proved, the self-represented litigant should receive a moderate or reasonable allowance for the loss of time devoted to preparing and presenting the case.[^17]
[7] In Girao v. Cunningham,[^18] Ms. Girao was a legally-untrained, self-represented, non-English-speaking litigant faced with what the Court of Appeal described as a phalanx of defence counsel, two of whom represented the defendant and two of whom represented an insurance company. The trial was 20-days long, and it involved many witnesses and complex medical evidence. Ms. Girao lost the trial, but the Court of Appeal, without deciding the merits, ordered a new trial because of the unfairness of the trial.[^19] Ms. Girao sought a counsel fee as a self-represented litigant for herself and her husband. She sought nearly $800,000 calculated at $150 per hour for the trial and the appeal. The Court of Appeal granted her an all-in costs award of $55,512.79 for the trial and the appeal. The Court explained its award in paragraphs 9 to 14 of its costs endorsement[^20] as follows:
- The principles for awarding fee allowances to self-represented litigants were set out by Rouleau J.A. in Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228, following Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330, [1999] O.J. No. 4600 (Ont. C.A.), per Sharpe J.A. At para. 26 of Fong, Sharpe J.A. set out two conditions that 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.
There is no doubt that much of what Ms. Girao and her husband did was work ordinarily done by a lawyer although, as noted in Fong and Benarroch, self-represented litigants should not be awarded a fee allowance for time they would ordinarily be attending in court.
Another policy direction in Fong was that costs should serve to dissuade misconduct in litigation. That is why an insurer faced with an unrepresented litigant should expect to pay costs in some amount, particularly where the insurer's trial tactics merit sanction, as in this case. In Benarroch, at para. 35, Rouleau J.A. stated that where there is little evidence of lost opportunity costs, any award will likely be nominal. There is no doubt that Ms. Girao and her husband would happily have been doing something else during the many hours they spent preparing for and attending at the trial and the appeal. We would grant a fee allowance that is, in the context, nominal but that is also consistent with the policy direction in Fong to reflect disapproval of a party's inappropriate trial tactics.
As to method of calculation and quantum, Ms. Girao claims for 5,261 hours including time for attendance at hearings and for document compilation that is not compensable. On several days, her claimed hours exceed 24 hours in the day. Her proposed hourly rate of $150 per hour falls at the very high end of the range established by case law. There is no doubt that Ms. Girao spent considerable time working on her case and her work proved effective. However, her method of accounting for such time does not lend itself to calculation based on hours worked.
We are mindful of the comments of Rouleau J.A. in Benarroch, who noted that lump sum costs awards may be preferable in order to avoid transforming costs hearings into complex proceedings where the self-represented claimant is called upon to account for every minute of the day and prove every penny of revenue: at para. 18.
Ms. Girao is entitled to a modest fee allowance for the trial and the appeal, which we fix at $35,000, for an all-in costs award of $55,512.79.
[8] Having considered the above jurisprudence about costs and self-represented litigants and reviewing the submissions of the parties in which several pertinent background facts were brought to my attention and having reviewed the Campbells’ Bill of Costs, I award the Campbells $7,500 all inclusive.
[9] I do so: (a) to facilitate access to justice; (b) to discourage and sanction inappropriate behaviour by litigants in their conduct of the proceedings; and (c) to encourage settlements particularly in Condominium Act applications, where the case law reveals a tendency to not settle precisely because the Condominium Corp. wishes to recover a full indemnity for the expense of its grievances with the unit owners.
[10] My rationale for this costs award is as follows.
[11] The Campbells were the successful party and had they been represented by a lawyer, then they would have been entitled to be indemnified for their legal costs.
[12] Had their lawyer submitted a Bill of Costs, I would have awarded costs on somewhere between a partial and a substantial indemnity basis.
[13] The award would have been above a partial indemnity scale because of: (a) my finding that the Condominium Corp. committed constructive fraud; (b) the Condominium Corp.’s late arriving cross-applications was unfair to the Campbells’ purchaser and inefficient, duplicative, and procedurally unfair to the Campbells; and (c) the Condominium Corp. ought to have accepted the very fair and very reasonable offer of $5,000 to settle made by the Campbells to pay the lawyer’s fees in March 2020 but the Condominium Corp. refused and chose to litigate.
[14] Had a lawyer been involved, a reasonable award of costs between a partial and a substantial indemnity would have been between $20,000 to $30,000 and that quantum is something that the Condominium Corp. would have reasonably expected to pay. In this last regard, I note that the Condominium Corp.’s Bill of Costs for the Campbells’ application was for a full indemnity of $23,856.81.
[15] But, of course, a lawyer was not involved in the Campbells’ application, and counsel 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 forgoing remunerative activity.
[16] In the immediate case, the Campbells certainly devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation, but they did not show that they forwent remunerative activity. The Campbells say that they had to forgo crucial hours that would have been spent at their full-time jobs as a software engineer and as a chemical engineer but there is no evidence that they were docked pay.
[17] However, as noted above, the role of costs is not just to remunerate lawyers or self- represented litigants who do lawyer’s work at the expense of lost income opportunities. As noted by the Court of Appeal in Girao v. Cunningham and in Benarroch v. Fred Tayar & Associates P.C., where there is little evidence of lost opportunity costs, any award will likely be nominal but may serve the other purposes of costs. In the immediate case, a costs award serves the purposes of facilitating access to justice, discouraging and sanctioning inappropriate behaviour by litigants in their conduct of the proceedings, and encouraging settlements.
[18] An appropriate and reasonable award in the circumstances of the immediate case is $7,500, all inclusive.
[19] Order accordingly.
Perell, J.
Released: June 29, 2022
COURT FILE NO.: CV-21-00672382-0000
COURT FILE NO.: CV-22-00679310-0000
DATE: 20220629
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
WALTER CAMPBELL and OLAKEMI SOBOMEHIN
Applicants
- and –
TORONTO STANDARD CONDOMINIUM CORPORATION NO. 2600
Respondent
AND BETWEEN:
TORONTO STANDARD CONDOMINIUM CORPORATION NO. 2600
Applicant
- and –
WALTER CAMPBELL, OLAKEMI SOBOMEHIN and ENID WING SUM CHAN
Respondents
REASONS FOR DECISION - COSTS
PERELL J.
Released: June 29, 2022
[^1]: S.O. 1991, c. 17.
[^2]: Campbell v. Toronto Standard Condominium Corp. No. 2600, 2022 ONSC 2805.
[^3]: The Campbells claimed $1,009.00 in disbursements, but they did not deliver any breakdown or evidence in support of the claim.
[^4]: 2021 ONCA 18.
[^5]: Hamilton-Wentworth (Regional Municipality) v. Hamilton-Wentworth Save the Valley Committee, Inc., (1985), 1985 CanLII 1957 (ON SC), 51 O.R. (2d) 23 (H.C.J.).
[^6]: Standard Life Assurance Co. v. Elliott, (2007) 2007 CanLII 18579 (ON SC), 86 O.R. (3d) 221 (S.C.J.); Benquesus v. Proskauer, Rose LLP, 2005 CanLII 21097 (ON SC), [2005] O.J. No. 2418 (S.C.J.).
[^7]: Standard Life Assurance Co. v. Elliott (2007), 2007 CanLII 18579 (ON SC), 86 O.R. (3d) 221 (S.C.J.).
[^8]: Reynolds v. Kingston (City) Police Services Board (2007), 2007 ONCA 375, 86 O.R. (3d) 43 (C.A.); 1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), 2006 CanLII 35819 (ON CA), 82 O.R. (3d) 757 (C.A.); British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371; Somers v. Fournier (2002), 2002 CanLII 45001 (ON CA), 60 O.R. (3d) 225 (C.A.); Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (C.A.); Fellowes, McNeil v. Kansa General International Insurance Co., (1997), 1997 CanLII 12208 (ON SC), 37 O.R. (3d) 464 (Gen. Div.).
[^9]: P.M. Perell and J.W. Morden, The Law of Civil Procedure (4th ed.) (Toronto: LexisNexis Canada, 2020).
[^10]: Kendall v. Hunt, 1979 CanLII 763 (BC CA), [1979] B.C.J. No. 1519 (C.A.), overruled in Skidmore v. Blackmore, 1995 CanLII 1537 (BC CA), [1995] B.C.J. No. 305 (C.A.); Buckland v. Watts, [1970] 1 Q.B. 27 (C.A.); Millar v. Macdonald (1892), 14 P.R. 449 (Ont. Div. Ct.); London Scottish Benefits Society v. Chorley (1884), 13 Q.B.D. 872 (C.A.). M. Burgess, “No Good Reason Not to: Awarding Costs to Successful Unrepresented Litigant” (1999) 21 Advocates’ Q. 119.
[^11]: The Solicitors Act, R.S.O. 1990, c. S.15, s. 36 provides: “Costs awarded to a party in a proceeding shall not be disallowed or reduced on assessment merely because they relate to a solicitor or counsel who is a salaried employee of the party.” See also s. 131(2) of the Courts of Justice Act, R.S.O. 1990, c. 43.
[^12]: The Solicitors Act, R.S.O. 1990, c. S.15, s. 36 provides: “Costs awarded to a party in a proceeding shall not be disallowed or reduced on assessment merely because they relate to a solicitor or counsel who is a salaried employee of the party.” See also s. 131(2) of the Courts of Justice Act, R.S.O. 1990, c. 43.
[^13]: Geremia v. Harb (2008), 2008 CanLII 19764 (ON SC), 90 O.R. (3d) 185 (S.C.J.); Samson v. Hooks Industrial, Inc., [2003] O.J. No. 4203 (S.C.J.); Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (C.A.); Skidmore v. Blackmore, 1995 CanLII 1537 (BC CA), [1995] B.C.J. No. 305 (C.A.). R. Flannigan, “Costs for Self-Represented Litigants: Principles, Interests and Agendas” (2007) 33 Advocates’ Q. 447; M. Burgess, “No Good Reason not to: Awarding Costs to the Successful Unrepresented Litigant” (1999) 21 Advocates’ Q. 119.
[^14]: (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (C.A.). See also: Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228; Dezsi (c.o.b. Dezsi Construction) v. Walker, 2019 ONSC 3163 (Master).
[^15]: (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (C.A.).
[^16]: Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228; Im v. BMO Investorline Inc., 2019 ONSC 3339 (Master); Edelstein v. Monteleone, 2017 ONSC 7446 (Div. Ct.); Mustang Investigations v. Ironside, 2010 ONSC 3444, [2010] O.J. No. 3184 (Div. Ct.), rev’g [2009] O.J. No. 3848 (S.C.J.).
[^17]: Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 22; Mitchinson v. Marshall Kirewskie, Barristers and Solicitors, 2018 ONSC 7419; Charendoff v. McLennan, 2012 ONSC 7241; Mustang Investigations v. Ironside, 2010 ONSC 3444, [2010] O.J. No. 3184 at para. 23 (Div. Ct.), rev’g [2009] O.J. No. 3848 (S.C.J.).
[^18]: 2021 ONCA 18 (J.M. Fairburn A.C.J.O., P.D. Lauwers and B. Zarnett JJ.A.).
[^19]: Girao v. Cunningham, 2020 ONCA 260.
[^20]: Girao v. Cunningham, 2021 ONCA 18.