Court File and Parties
COURT FILE NO.: CV-22-684410
DATE: 20221220
ONTARIO SUPERIOR COURT OF JUSTICE
RE: 185 KING DEVELOPMENTS INC., Applicant
-and-
SARA C. TEWSON, TIMOTHY J. TEWSON, JENNIFER M. SMITH, CHARLES WILLIAM NOEL, HUGO DAVID TEWSON, SUSAN J. TEWSON, RORY ANTHONY RANK ASKEW, ANTHONY CRAWFORD LYNDEN POTTER, BARRIE LYNDEN POTTER, NICOLA A. OLSEN, BRIDGET POTTER, CHRISTOPHER N. L. POTTER, EDWARD ALBANY NOEL, WILLIAM LAMBE, JEFFERY LAIDLAW, LORETTA ROBINSON, DAVID HENRY, MARY KOSARCZUK, JEFFERY LAIDLAW SMITH, PATRICIA HERTZBERG, JULIA KATHRYN SIMMERS HAMMELL, PHILIP CAYLEY BOYD, ANNE MIDDLETON, JIM CASSIDY, DOUGLAS ALEXANDER LAMBE, PAUL BERNARD HENRY, LIONEL HENRY, JAMES GRANT LAIDLAW, ROBERT DAVID SMITH, SANDRA DENTON, ROBERT JAMES HENRY, MARIE CASSIDY, MELISSA LAIDLAW, GAEL IRIS ROSSLEE (PREVIOUSLY KNOWN AS GAEL IRIS NEKE), CHARLES HENRY, WILLIAM HENRY, JOHN DUNCAN BACKUS, DOUGLAS ALEXANDER FORLONG, JOHN M. HENRY, ROBERT DALE MACDONALD FORLONG, GRACE ANDRA POWERS, JAMES RUSSELL BACKUS, DUNCAN CAMERON FORLONG, JANE IVISON LYONS, PETER BEVERLEY BOYD, JEAN KNIGHTLEY NIXON, WILLIAM DAVID LAIDLAW, DEBORAH SUE WEIR, KATHERINE MARNIE LAIDLAW, PAUL TAYLOR, DIANA MEREDITH MCNEILL, MARGARET MARLER PEARSON HALLETT BROWN, GEOFFREY DENTON, PHILIP DENTON, VANESSA GRAFI-MAYNARD, ERIC GRAFI, and JEFFERY SANDERS, PENNIE ZIMMERN, TRISTAN ANTHONY HASTINGS PENGELLEY, VENETIA ST. QUENTIN PENGELLEY, JENNIFER ANNE APGAR, JONATHAN APGAR, CHRISTOPHER ANDREW APGAR, BEN APGAR, TIMOTHY APGAR, MALCOLM TAYLOR, JAMES FERGUS EDGAR, NANCY KATHLEEN GREEN, RODERICK JAMES BUCHANAN, NEIL ROSS BUCHANAN, and DIANA JOSEPHINE BUCHANAN TYE, Respondents
BEFORE: FL Myers J
COUNSEL: Sanj Sood and Codie Mitchell, for the applicant
Patricia Hertzberg self-represented respondent
HEARD: December 20, 2022
COSTS ENDORSEMENT
[1] The applicant seeks an order requiring the respondents who unsuccessfully opposed its application to pay a piece of its costs.
[2] The applicant incurred total costs of $112,855.85. It seeks indemnity from the opposing respondents of $25,307.35.
[3] The subject of this case is a narrow laneway behind 185 King Street East in Toronto. The applicant sought a declaration that its predecessors in title, Mr. Mitz and his family, had acquired title to the land by adverse possession. The applicant purchased the land from Mr. Mitz or his company as part of a land assembly for development purposes.
[4] The unusual fact about the case is that paper title to the subject piece of land remains in the name of the person who bought it in 1824. The original owner subdivided and sold off the rest of the block. But he never formally conveyed away the narrow laneway.
[5] The applicant proved that Mr. Mitz, his father, and their respective holding companies, had exclusively occupied the land for about 75 years. They exercised complete dominion over the land by using it to park their cars on a daily basis. They excluded neighbours and all others from the land with their cars and with a chain across the laneway for more than ten years prior to the title to the land being registered provisionally under the Land Titles Act.
[6] The applicant quite properly retained a genealogist to try to find the heirs of the original titled owner. The respondents are largely his great-great-great grandchildren. Unfortunately, they laboured under several misapprehensions about the civil litigation process.
Who are the Self-Represented Respondents who Opposed the Application?
[7] First, only three of the respondents, Patricia Hertzberg, Geoff Denton, and Bill Henry, actively took part in the hearing of the application. Ms. Hertzberg filed a Motion Record and Costs Submissions purportedly on behalf of herself and the respondents Loretta Robinson, David Henry, Mary Kosarczuk, Anne Middleton, Jim Cassidy, Douglas Alexander Lambe, William Lambe, Paul Bernard Henry, Lionel Henry, Robert James Henry, Marie Cassidy, Charles Henry, William Henry, and John M. Henry.
[8] However, in Ontario, only a licensed lawyer is entitled to represent others before the court. Ms. Hertzberg understands that they were "self represented" as they rely on their status in response to the applicant's costs submissions.
[9] The term "self-represented" means what it says. Litigants are entitled to represent themselves before the court. They do not represent others.
[10] Mr. Henry spoke at the hearing and adopted Ms. Hertzberg's submissions. He is on Ms. Hertzberg's list.
[11] Mr. Denton also spoke and supported the position advanced by Ms. Hertzberg. But he is not listed as someone whom she purports to represent.
[12] The applicant limits its request for costs to those respondents who opposed the application. That would seemingly include all of the respondents listed by Ms. Hertzberg. But I cannot give recognition to her representation –certainly not without those respondents appearing (by filing a Notice of Appearance) or otherwise advising the court that they intend to adopt the submissions of Ms. Hertzberg. Ms. Hertzberg delivered a document entitled "Response to the Application" that lists the fourteen other family members whom she purports to represent (including Mr. Henry). But it too is signed only by Ms. Hertzberg. There is nothing from the others to indicate that they are knowingly participating in the proceeding and opposing the applicant.
[13] In my view, Ms. Hertzberg, Mr. Henry, and Mr. Denton are the respondents who appeared in opposition to the application. If one or more of them has an agreement with the thirteen others to share costs, they can work that out among themselves. But I cannot award costs against a party who has not appeared personally or given some indication that they are opposing the application with Ms. Hertzberg. Her purported representation, without being a lawyer, cannot bind others before the court.
Self-Represented Status
[14] The opposing respondents chose to represent themselves before the court as is their right. They quite rightly quote from the Civil Law Handbook for Self-Represented Litigants of the Canadian Judicial Council to recite their right to be informed of potential consequences and responsibilities of participating without a lawyer. In fairness, the full section says:
Information, assistance and self-help support for self-represented persons should be made available through the normal means of information, including pamphlets, telephone and courthouse inquiries, legal clinics and internet searches.
All self-represented parties should be:
informed of the potential consequences and responsibilities of proceeding without a lawyer;
referred to available sources of representation, including those available from Legal Aid, pro bono assistance and community and other services; and
referred to other appropriate sources of information, education, advice and assistance.
[15] The opposing respondents did not lack for legal resources. In her Costs Submissions, Ms. Hertzberg writes:
Even though we were (incorrectly) advised by a lawyer that Costs were highly unlikely to be awarded, we realize that our opposition to the Applicant's case would have caused more work for the Applicant's lawyers.
[16] In Ontario, the unsuccessful party is normally required to pay a portion of the successful party's legal costs. The court usually needs a reason to exercise its discretion otherwise. The starting point is that the successful party should be entitled to indemnity for about 60% of its legal fees plus disbursements and applicable taxes. However, the court always makes a discretionary decision when awarding costs. The principal objective is that costs must be fair and reasonable in the circumstances. The quantum should also be viewed through the lens of access to justice to prevent costs liability from being a bar to legitimate positions being brought to the court. See: Boucher v Public Accountants Council (Ontario), 2004 14579 (ON CA), (2004), 71 O.R. (3d) 291, at paras 26, 37.
[17] I cannot know what the respondents were advised by a lawyer or if they have any basis for complaint about the advice they received. But it is clear that they had access to a lawyer. By the time the application came to me at the hearing, the positions were already set and the costs were already incurred. I had no way to know or assess whether the respondents correctly understood the potential costs liability that they had accrued to that date. But, here again, Ms. Hertzberg's Costs Submissions show the access to information available to the opposing respondents and their current understanding of applicable principles:
"The court should seek to balance the indemnity principle with the fundamental objective of access to justice."(2). Unable to afford legal counsel, we self-represented in order to gain access to justice. We complied with the rules and procedures of the court to present our case clearly and concisely. We spent hundreds of hours in preparation to compensate for our lack of legal training and knowledge. Those in the legal system hold a massive advantage over those who are not. This applies to every aspect: research, preparation, presentation at Hearing, settlements and costs.
Individuals cannot afford the legal costs that a large corporation can afford. Yet we feel we should be able to present our case at a Hearing without having to risk a huge (huge for us) legal bill. For access to justice to be fair, we think it is reasonable that the costs award to the applicant be substantially reduced from the amount requested.
(2) Langenfeld v TPSB, 2018 ONSC 5309, at para. 16
The Respondents' Opposition
[18] Like all civil litigation, this case was about money. The opposing respondents wanted the developer to pay them for great-great-great grandfather's laneway.
[19] In her Costs Submissions, Ms. Hertzberg fairly acknowledges:
- Importance to the Respondents. When we learned there was property in downtown Toronto, belonging to our ancestor, where a high-rise development was planned, we were expecting potential compensation. However, when we received an application asking the court to simply grant the developer full title to the land, with no compensation to the descendants, we were offended. It felt like an egregious affront to our family. Then after studying the requirements for adverse possession, and the applicant's initial claim for it, we had reasonable questions to raise.
We couldn't afford to hire a lawyer, however we were told we could file a response to the application and our 'descendants' perspective would be heard. We believed we had rights needing protection. Our case obviously fell short at the Hearing, but we felt a heavy responsibility to the family (past, present and future) to stand up and make our best case. As family, it was important.[Emphasis in original.]
[20] As descendants of the original owner of the land, the respondents formed an expectation that they were entitled to compensation, i.e. money, from the developer. Matters of money do have a way to translate in peoples' heads into assertions of loftier principles. The opposing respondents' great-great-great grandfather was a prominent person in Canadian history. But our law knows of no general entitlement of descendants to compensation apart from individuals proving that they have an ownership interest in their progenitor's property. Absent a provable claim to title for individuals, there was no familial issue at play. But the opposing respondents decided that they had "rights that needed protection". So, their claim for money morphed into an assertion of family honour.
[21] The opposing respondents felt a heavy responsibility to make a "large corporation" building a "high rise development" pay them money. They chose to see a refusal as an affront. So they opposed this claim knowing that doing so would cause the applicant to spend money answering their opposition.
Analysis
[22] I agree with the opposing respondents that they should not be met with unreasonable or unforeseeable liability for costs in litigation. I agree that self-represented parties are entitled to consideration especially related to their lack of technical knowledge that may lead them into missteps that can increase costs unexpectedly.
[23] I agree as well that the applicant had to incur most of its costs on historical analysis that was required irrespective of any opposition. Any costs to be awarded against the opposing respondents should be limited to the incremental costs caused by their involvement.
[24] I do not accord the opposing respondents' financial circumstances much weight. I have no evidence about the actual circumstances of the three who were before me or the other thirteen who are apparently standing behind some or all of them.
[25] I know that Ms. Hertzberg says that some of the respondents are people of modest means and overall they could not afford a lawyer. But that is a choice of spending priorities. People with very limited means retain counsel when they feel they must. Perhaps the respondents were told that they did not have much of a claim so they chose not to incur the cost of a lawyer. There are innumerable reasons why the case proceeded as it did. The court cannot know the respondents' spending priorities or circumstances. So this cannot be a significant factor.
[26] Ms. Hertzberg repeats in her costs submissions the respondents' understanding and reliance upon assurances that there would be no financial risk to them in opposing this proceeding. That tells me that the cost risk was a known concern. It also suggests that the opposing respondents felt they could take a free shot at the applicant's bank account with no real downside. That too could be a reason not to hire a lawyer.
[27] The applicant asks for about $25,000 in costs all-inclusive. Objectively this is not a "shocking" figure as submitted by Ms. Hertzberg. It is just under one-quarter of the actual cost of this proceeding for the applicant.
[28] Ms. Hertzberg objects to paying more than 50% of the amounts claimed by the applicant for preparation and attendance at the hearing. She submits that the applicant still had to prepare and attend to prove its claim. However, that is not correct. Had the opposing respondents not opposed, the application would have been read in writing without a court appearance under s. C.1.3 of the Notice to Profession and Parties – Toronto Region found at https://www.ontariocourts.ca/scj/practice/practice-directions/toronto%20/toronto-notice-to-profession/#C_Civil_Matters. Given the overwhelming evidence adduced by the applicant, no oral hearing would have been required.
[29] I am satisfied that the hours, rates, and disbursements claimed by the applicant are fair and reasonable. They are tailored just to the incremental costs which the opposing respondents acknowledged their involvement would cause. Moreover, $25,000 is not an amount that ought to have been unexpected. In fact it is at the low end of the reasonable range for a proceeding like this in Toronto Region in my view. The respondents opposed a developer's title on a land assembly. They had to reasonably expect a full-spirited response commensurate with the respondents' spirited reaction to the affront they felt.
[30] Finally, the applicant made a submission for enhanced costs in view of the respondents' willingness to malign the integrity of its three witnesses including a professional person. Ms. Hertzberg quite plainly called the witnesses liars and conspirators without a hint of evidence supporting the assertion. Peoples' reputations matter especially to professionals whose livelihoods depend on their reputations. In their assertion of familial dignity, the opposing respondents also ignore that they would be seen by the applicant as rather brazenly exploiting a gratuitous windfall. After all, they only learned about the long-forgotten property because the applicant did such a thorough and responsible job preparing the case. The respondents' entitled approach and self-justification for hyperbolic submissions both on the merits and in their Costs Submissions could be a basis for the court to award a higher percentage of costs indemnification against them.
[31] Overall, I am satisfied that the opposing respondents' assertions are explicable by their self-represented status, their zeal to reclaim past glory, and for a payday along the way. It may have been avaricious, but it does not meet the level of reprehensible conduct required to award enhanced costs.
[32] The respondents were wrong about their risk of costs. They were wrong about their entitlement to be represented by Ms. Hertzberg. They were wrong thinking that they had some kind of inherited family right to payment for great-great-great grandfather's land. And they were wrong thinking that their assertions of rights-of-way held by others and conspiracy allegations undermined clear and compelling evidence of actual historic use of the land. It would just be piling-on misery to add enhanced liability in my view.
[33] In all, it is fair and reasonable for costs to follow the event. Ms. Hertzberg, Mr. Denton, and Mr. Henry are ordered to pay costs on a partial indemnity basis fixed in the amount of $25,000 all-inclusive. As noted above, if any of the opposing respondents are entitled to indemnification from others, that is a matter for them to work out amongst themselves.
FL Myers J
Date: December 20, 2022