Court File and Parties
Court File No.: CV-17-577128 Date: 2023 09 19
Superior Court of Justice - Ontario
Re: Muthu Ponnampalam, Plaintiff - and - Piramenthiratheesan Thiravianathan, Defendant
Before: Associate Justice Todd Robinson
Parties: M. Ponnampalam, in person P. Thiravianathan, in person
Heard: In writing
Costs Endorsement
1After granting the plaintiff’s motion to strike the defendant’s statement of defence, I invited the parties to make written submissions as to costs if they could not reach an agreement. I fixed a timetable for those submissions. The plaintiff filed written submissions in accordance with my directions. The defendant did not. In the absence of having received responding costs submissions by the ordered deadline, my determination on costs of the motion inadvertently fell through the cracks through no fault of the plaintiff.
2The plaintiff was completely successful on the motion and seeks his costs of $16,970.50, comprised of partial indemnity costs of $517.50 to May 18, 2022 and substantial indemnity costs from May 18, 2022 of $14,572.00. He takes the position that offers to settle made on May 18 and June 29, 2022 entitle him to the substantial indemnity costs claimed.
3Costs are discretionary. I am afforded broad discretion by s. 131 of the Courts of Justice Act, RSO 1990, c. C.43 and subrule 57.01(1) of the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”) to fashion a costs award that I deem fit and just in the circumstances. Subrule 57.01(1) sets out a non-exhaustive list of factors to be considered in exercising that discretion, which are in addition to considering the result of the hearing. Subrule 1.04(1.1), which is also applicable, requires the court to make orders that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding. Costs awards should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant: Davies v. Clarington (Municipality), 2009 ONCA 722 at para. 52.
4There are three main purposes of costs rules: (i) to indemnify successful litigants for the costs of litigation, (ii) to encourage settlement, and (iii) to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan at para. 22.
5Both parties were self-represented on this motion. Accordingly, I must also consider the established framework for assessing costs claimed by self-represented litigants. In particular, the Court of Appeal has set out that costs should generally only be awarded to self-represented litigants who demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation and, as a result, incurred an opportunity cost by foregoing remunerative activity: Girao v. Cunningham, 2021 ONCA 18 and previously in Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228.
6The plaintiff claims an hourly rate of $150.00 for his time and has provided a time log that tallies the total time he spent on this motion at 108.15 hours. The time log is the basis for the plaintiff’s costs claim. I have three main concerns with the plaintiff’s costs claim.
7First, the rate of $150 per hour has no rationalized basis beyond the plaintiff’s submission that it “is fair and within the range accepted in case law”. He points to the decision in Ferlisi v. Boucher, 2021 ONCJ 103, at para. 11, where the court noted various cases fixing hourly rates for self-represented litigants in the range of $100-$200 per hour. That range is wide. No submissions have been made on why $150 per hour is an appropriate rate to use in this case.
8Second, I have reviewed the time log. It includes significant administrative time, such as time spent having affidavits commissioned, preparing motion confirmation forms, effecting service, and uploading materials to CaseLines. Such time would not be recoverable by a represented party. It is equally not recoverable by a self-represented party.
9Third, and most significantly, I am not satisfied that the plaintiff has met the requirements to establish an entitlement to costs on the particular facts of this motion. I accept that the plaintiff has spent the hours outlined in the time log, but there is nothing before me supporting that the plaintiff gave up remunerative activity to pursue this motion.
10The plaintiff submits that he had to forego remunerative employment as a self-employed licensed professional engineer. He relies on the last paragraph in his first affidavit tendered on this motion, which states as follows:
I am a licensed Professional Engineer and a self-employed individual who incurred an opportunity cost by foregoing remunerative activity to prepare persuasive documents that include this affidavit, factum, and other motion materials and spent a significant amount of time on the work that a lawyer would have completed in bringing this motion. Therefore, each time the defendant defaults on complying with the timetable, his disclosure and production obligations requires me to seek the court’s assistance to remedy the default. As a result, the cost of this litigation increases and the final determination of the case on its merits gets pushed back, delayed by the need to bring motions to compel the defaulting defendant into compliance with his obligations.
11The above statement was supported by two exhibits to the plaintiff’s affidavit, namely a copy of his membership with the Professional Engineers of Ontario (PEO) and a copy of a corporate profile report for SHARU Management Inc., in which the plaintiff is the sole director.
12Amidst the allegations advanced by the defendant in his responding statement sworn August 9, 2022 is one that I find relevant here. The defendant asserted that the plaintiff “came to Canada as an Engineer, since then he had some family issues and separated from wife and kids, then he stop working because he need to support his own family.” He further states unequivocally that he knows the plaintiff has not worked “in his field” (i.e., engineering) since coming to Canada. The plaintiff’s supplementary affidavit responded to these assertions by stating they were false and pointing to his PEO membership card and the corporate profile report for his business.
13This matter was also raised during the parties’ submissions at the motion hearing. The plaintiff spoke direction to the defendant’s allegations during his moving submissions. He asserted that they were not true, pointing again to the PEO membership card and corporate profile report as providing his “current status.” In his responding submissions, the defendant told me that his statement about the plaintiff not working had come from what he was told by the plaintiff himself.
14The context of the parties’ relationship is important to why I have considered the defendant’s evidence. The defendant’s affidavit sets out that the plaintiff and the defendant have known each other for some 35 years. They are from the same village in Sri Lanka and the plaintiff was a classmate of one of the defendant’s brothers in the 1980s. The plaintiff and defendant are now part of the same community in Toronto. They worked together as part of a non-profit cultural association, which appears to be how they came to get to know one another. These aspects of the defendant’s evidence were not disputed on this motion. The parties’ relationship lends some foundation for the defendant’s statements being based on his own personal knowledge or belief, as opposed to being entirely unfounded.
15The plaintiff’s affidavit statements are self-serving. The first affidavit baldly states as a fact the requirement of the case law. Notably, it uses the Court of Appeal’s own language. No evidence supporting the statement was tendered. In response to the defendant’s assertion that the plaintiff was not working, the second affidavit attacks the defendant’s allegations as being false. However, the plaintiff opted to put forward no new evidence in support of his bald assertions.
16I accept that the plaintiff had an active membership with the PEO during the period when this motion was brought and argued. The expiry date on the membership card is listed as January 31, 2023, which is a date several months after the motion was argued. I also accept that the plaintiff has a registered corporation. Neither of those facts meets the requirement of demonstrating a loss of remunerative activity. Having a current PEO membership and an active corporation is not itself evidence of actively working as an engineer.
17There is simply no evidence before me on whether the plaintiff was actively working during the course of this motion being brought and heard and, if so, what remunerative activities were foregone in the course of bringing this motion. The plaintiff was evidently aware of the requirement to tender such evidence, since he sought to address it in his affidavit materials and made oral submissions on it. His bald assertion was directly challenged by the defendant. The plaintiff opted not to tender further and better evidence in response to that challenge.
18In my decision on the motion, I specifically directed that the parties address in their costs submissions the restrictions on costs available to self-represented litigants as set out by the Court of Appeal. In preparing his costs submissions, the plaintiff therefore had a further opportunity to put evidence forward to support his costs claim. He has not done so.
19I acknowledge that the plaintiff has sought to supplement his affidavit evidence with an email dated May 24, 2022, which is presumably intended to support his position. However, the email does not assist the plaintiff. It is tendered without any context. It states, “It is an honour for me that you considered me for this position and offering an opportunity. […] During this time, I am unable to release myself from my current commitments to accept your offer. I would appreciate being kept informed about similar opportunities in the future.” The plaintiff has not explained the circumstances of the email, who the recipient is, or what “opportunity” has been offered and cannot be accepted. The email alone is insufficient to support lost opportunity costs.
20I am mindful that failing to tender specific evidence outlining lost opportunity costs is not a complete bar to the plaintiff. Although not cited by the plaintiff, there is case law supporting that, in exercising its discretion on costs, the court may consider other factors, such as whether a costs award may meet another purpose for costs: see, for example, Kirkby & Torok v Otulakowski, 2021 ONSC 4115. Costs always remain in the discretion of the court.
21As already noted, discouraging and sanctioning inappropriate behaviour by litigants is another purpose of costs. The plaintiff submits that I should sanction the defendant’s conduct for, as the plaintiff characterizes it, ignoring and defying the orders of this court. However, I already have. Ongoing and unexplained breaches of court orders was significant in my decision to strike the defendant’s defence, with prejudice. The defendant’s conduct has resulted the loss of his defence to the plaintiff’s claim. In my view, he has already been sanctioned for the very behaviour raised by the plaintiff in support of costs.
22For these reasons, I am not convinced that a costs award is appropriate in this case, with one exception. The plaintiff has incurred disbursement costs bringing this motion. A total of $748.00 is claimed. They are unchallenged by the defendant. In my view, they are reasonable and should be recoverable by the plaintiff.
23For the above reasons, there shall be no costs of the motion, save and except that the defendant shall pay to the plaintiff his disbursements fixed in the amount of $748.00, payable within thirty (30) days. Order accordingly.
Associate Justice Todd Robinson
Date: September 19, 2023