SUPPLEMENTARY REASONS FOR JUDGMENT - COSTS

[1] Following a seven-day trial of this defamation suit, I awarded the plaintiff a total of $850,000 in damages and prejudgment interest in the amount of $69,268. I have now received the costs submissions filed pursuant to the concluding paragraphs of my judgment. These consisted of a 116-page brief submitted by the plaintiff and a 25-page brief by the defendant. I declined to consider a reply submission by the plaintiff which, I was advised by the court office, the plaintiff had filed, despite my order to the contrary.

[2] The starting point of any analysis of costs awards must be the fairness and reasonableness standard percolating through the case law and confirmed in Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), at paras. 24-25.

[3] Historically, self-represented parties were considered ineligible to claim costs beyond disbursements because they were “unrepresented.” That rationale reflected a measure of professional bias which was cured in modern case law acknowledging that individuals representing themselves were doing the work of lawyers, albeit without the benefit of legal training beyond what they have learned during the litigation. The main limitation on this was that self-represented litigants cannot recover compensation for the time they would have spent as the party, in the way of a party represented by lawyers. That would be unfair to parties who do retain lawyers. The seminal decision on this point is Fong v. Chan, 1999 CanLII 2052 (ON CA).

[4] During the trial, the court occasionally saw a glimpse of the acrimonious litigation, including references to various motions over pleadings, injunctive relief, and other procedural remedies. In the end, the plaintiff obtained a trial date for a summary trial on the basis that it was a straightforward case in which the only contested issue was to be the assessment of damages. Indeed, in his costs submissions, he reverted to this position and stated: “The matter was not complex.” As I remarked in my trial decision, the trial involved a contest over liability without much cogent evidence supporting the multi-million dollar claim for damages beyond a spreadsheet, a corporate annual report, and a request that the court extrapolate the plaintiff’s expected fortunes, but for the defendant’s defamatory conduct.

[5] The plaintiff cannot be solely to blame for the nature of the case as presented. The defendant defended the case based on justification, i.e. truth of the libel that the plaintiff had been involved in mortgage fraud. The investigator who informed the defendant’s conduct was not called as a witness. Nor was there any evidence of efforts to locate the investigator beyond counsel’s submission that the bank knew only that she had moved abroad. Insofar as the defence had to be proven by hearsay, including the principled exception to it, the bank relied on the non-expert bank employees who interpreted the investigator’s conclusions at the time, instead of other employees from the bank’s forensic unit. Much of the defence effort focused on the plaintiff’s disregard for process, such as his reliance on mortgage brokers for some of his marketing leads. While this might have called for discipline or termination of employment, it did not directly justify telling the plaintiff’s prospective employers that he knowingly submitted fraudulent mortgage documents to the bank’s underwriters.

[6] Thus, in different ways, each of the parties engaged in contesting peripheral or immaterial points without focusing on the real issues in the case. As this is not an assessment but a trial judge’s fixing of costs after an appreciation of the conduct of the case, I can only surmise that much of the interlocutory steps involved skirmishes over matters other than the elements of a libel suit. None of this should be laid at the feet of defence counsel, who conducted themselves very professionally and conceded points in a fair and honourable manner. I cannot excuse the self-representing plaintiff in the same manner. He continuously tried to dress the claim up with various torts and contractual claims that bore little connection to the facts. Perhaps he learned of these legal theories from the various lawyers he consulted, but they were not at the trial to face the scrutiny of the arguments in open court. Returning to the plaintiff’s assertion that it was to be a simple trial of liability where the main contest was damages, the plaintiff failed to follow his own legal advice. His conduct at the trial provided a looking-glass through which one could see how a simple case could years and various interlocutory steps to overcome to reach trial.

[7] There is a long line of cases dealing with the scale of costs where a party asserting fraud fails to prove it or fails to lead evidence that could be weighed by the court. I will consider the fact that the bank led a defence of justification but failed to adduce no cogent evidence that the plaintiff was involved in fraud. However, I also take into account the plaintiff’s lack of trust in the process to identify the lack of evidence, which mistrust led to the assertion of fanciful work-around theories based on negligence, bad faith contractual performance, interference with economic relations, and other legal concepts. I will therefore consider the fees on a partial indemnity scale.

[8] With the above comments regarding the nature and scope of the litigation, I will now turn to the individual costs claimed by the plaintiff.

LAWYERS’ FEES

[9] The plaintiff sought $40,574.20 for reimbursement of lawyers’ fees between 2014 and 2017. The supporting documentation consisted of copies of cheques paid to lawyers, without the actual invoices describing the services. Various cheque notations referring to “Gary’s Case” do not specify whether they pertained to this case or to the employment tribunal.

[10] It would be harsh to disallow the claim for legal fees on the basis that there is no evidence of services connected to this case, since he is a self-represented party. If the plaintiff wishes to claim these fees for the purposes of his costs claim, he may serve and file a supplementary brief containing the law firm accounts with full descriptions, subject to any redactions for sensitive privileged information. He shall do so within the next ten days, failing which this element of the claim will be disallowed without further adjudication. If the plaintiff serves and files the accounts, the defendant shall have a right to respond within ten days of such service.

TRANSCRIPTS

[11] The plaintiff has submitted a claim totalling $11,535.16 for transcript costs. While this amount seems high, the defendant has not contested it. The amount of these disbursements will be allowed in full.

HOTEL COSTS OF TRIAL

[12] The plaintiff has claimed $1,807.51 for the cost of hotel stays downtown for the trial. Ordinarily, the costs of making one’s way to court are absorbed by parties if they reside within the same municipality as the venue. This item will therefore not be allowed.

COSTS OF FILING MOTIONS

[13] The plaintiff has claimed $2,963 for the filing fees he has paid to file motions. Pursuant to rule 57.03, costs of motions are fixed by the court hearing the motion unless it is an exceptional case. I have not been directed to any such exceptional direction. The plaintiff is entitled to the costs incidental to motions as awarded by the judicial officer hearing the motion. Therefore, I decline to fix any costs of motions.

BOOK BINDING COSTS

[14] In my trial decision, I stated that I would exclude from any costs order the cost of preparing paper briefs. The Toronto Practice Directions have made it clear that proceedings are to be conducted by uploading files to Caselines. One rationale for allowing self-represented litigants to participate in the costs regime is to encourage good practice and to discourage bad practice: Fong, at para. 24. While I appreciate that the plaintiff was more comfortable using bound paper volumes, that indulgence resulted in delays during the trial waiting for the plaintiff to rifle through his tabs of paper volumes and locating items on Caselines. I therefore do not allow any reimbursement for book binding costs.

COUNSEL FEE

[15] The plaintiff claims $357,200 on account of 400 days of lost work due to this case, including the trial. The defendant rightly points out that this was already the subject of a claim incorporated into the damages claim. Awarding this amount in its entirely would certainly amount to double recovery. Indeed, I refer to the fact that $350,000 out of the $475,000 I awarded for damages for loss of income consisted of my assessment of his measurable employment income loss during the period up to 2019, and the remaining $125,000 represented a gradually attenuating measure of such loss thereafter. Since the litigation started in the second year after the plaintiff’s resignation, I seems clear that I have already awarded as employment income loss the amount claimed as costs.

[16] Despite the foregoing, it is also customary for parties represented by a lawyer to pay a counsel fee at trial beyond the hourly rate compensation. I am prepared to allow the plaintiff a counsel fee for the trial alone, based on a partial indemnity rate of $1,000 per day over seven days. I therefore allow $7,000.00 to the plaintiff on account of this element of partial indemnity costs.

SUMMARY

[17] Based on the foregoing, I provisionally fix the costs awarded to the plaintiff in the amount of $18,535.16. I refer to the procedure for the plaintiff to serve and file the lawyer’s accounts, if he intends to pursue a claim for same. If, at the conclusion of ten days, the plaintiff does not serve and file a brief containing those accounts, the provisional award of costs will be permanent.

Akazaki J.

Released: May 17, 2024

Gary Curtis v. Bank of Nova Scotia, 2024 ONSC 2851

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Gary Curtis

and

Bank of Nova Scotia

SUPPLEMNTARY REASONS FOR JUDGMENT - COSTS

Akazaki J.

Released: May 17, 2024

Gary Curtis v. Bank of Nova Scotia, 2024 ONSC 2851

Case Summary

SUPPLEMENTARY REASONS FOR JUDGMENT - COSTS

LAWYERS’ FEES

TRANSCRIPTS

HOTEL COSTS OF TRIAL

COSTS OF FILING MOTIONS

BOOK BINDING COSTS

COUNSEL FEE

SUMMARY

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Legal Tests 1