Obita v. Algonquin College, 2025 ONSC 1980

COURT FILE NO.: CV-22-89230
DATE: 2025/03/31
ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:
Rachel Obita, Plaintiff
– and –
Algonquin College, Defendant

Self-represented plaintiff
Chris Rutherford, for the defendant
HEARD: In writing

Ruling on Costs

Corthorn, J.

Introduction

[1] Rachel Obita attended Algonquin College (“the College”) from January 2019 to April 2021. Ms. Obita graduated with an Advanced Diploma in Business Administration—International Business. Ms. Obita commenced this action in May 2022. On the final page of her amended statement of claim (“the Pleading”), Ms. Obita lists ten causes of action asserted against the College.

[2] In November 2024, the College was wholly successful on a motion to strike the Pleading (“the Motion”). On the return of the Motion, Ms. Obita abandoned three of the ten causes of action asserted against the College. In its ruling, the court struck the balance of Ms. Obita’s claims, without leave to amend: Obita v. Algonquin College, 2024 ONSC 6588 (“the Final Ruling”). The overall effect of the court’s ruling is that Ms. Obita’s action is dismissed, in its entirety: the Final Ruling, at para. 133.

[3] The parties were unable to resolve the issue of costs of the Motion and of the action. The College delivered written costs submissions in late December 2024; Ms. Obita delivered responding costs submissions in early January 2025.

[4] The College seeks its costs of the Motion and of the action, on the partial indemnity scale, in the amount of $42,141.82. That amount is broken down as follows:

• Fees: $35,957.70
• Disbursements: $1,440.74
• Applicable HST: $4,743.38

[5] In her responding costs submissions, Ms. Obita does not address the scale upon which the College asks that costs be paid, or the quantum of costs requested. Ms. Obita’s responding costs submissions are devoted exclusively to her views of the substantive content of the Final Ruling, my conduct as the presiding judge on the Motion, and her intention to pursue an appeal from the Final Ruling. Ms. Obita concludes her responding costs submissions with the following statement: “I will deal with the costs that the College will pay to me after the Court of Appeal has overturned your decision.”

[6] In the absence of any substantive submissions from Ms. Obita on the issue of costs, I determine costs of the Motion and of the action based on the general legal principles related to costs; the relevant Rules of Civil Procedure, R.R.O. 1990, Reg. 194; and the College’s costs submissions.

The General Legal Principles

[7] The starting point for the consideration of the court’s discretion to fix costs is s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). Section 131(1) prescribes that discretion in the following language: “Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.”

[8] The factors the court considers when exercising its discretion regarding costs include those listed in r. 57.01(1) of the Rules of Civil Procedure. Eleven specific factors are listed in rr. 57.01(1)(0.a) to (h.1). Those factors include, for example, the principle of indemnity (r. 57.01(1)(0.a)); the complexity of the proceeding (r. 57.01(1)(c)); and the importance of the issues (r. 57.01(1)(d)). The r. 57.01(1) factors relevant to fixing costs in this proceeding are discussed below.

[9] The court must also apply the general principles established in the case law. In a 2004 decision, the Court of Appeal for Ontario defines the overall objective of the court when fixing costs: Boucher v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291. At para. 26, the overall objective is defined as fixing an amount in costs that is fair and reasonable for the unsuccessful party to pay. In the same paragraph, the court emphasizes that actual costs incurred are not the measure when fixing costs.

[10] More recently, in a 2010 decision of this court, Perell J. summarizes the five purposes modern costs rules are designed to advance in the administration of justice. At para. 10 of 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, Perell J. lists those five purposes:

(1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage the sanctioning of inappropriate behaviour by litigants in their conduct of the proceedings; and (5) to encourage settlements. [Citations omitted.]

[11] In Crowe v. The Manulife Financial Corporation, 2010 ONSC 3302, D.M. Brown J. (as he then was) addresses principles to be applied by the court when fixing the costs of either a motion or a proceeding involving a self-represented party. At para. 14, D.M. Brown J. recognizes “the reality that self-represented litigants do not form a homogenous group.”

[12] At para. 15, D.M. Brown J. explains how the court is to approach fixing costs in proceedings involving self-represented parties:

Given the lack of homogeneity amongst self-represented litigants, it is necessary for the courts, in each case involving a self-represented party, to pay close attention to the factors enumerated in Rule 57.01(1) of the Rules of Civil Procedure, particularly those dealing with the reasonable expectations of the unsuccessful party, the conduct of the party, and whether any steps were improper, vexatious or unnecessary: Rule 57.01(1)(0.b), (e) and (f). Fixing costs in such circumstances will be an individualized process, focusing on the characteristics and conduct of the particular self-represented litigant, not measured against some abstract notion of the “typical self-represented litigant”.

[13] I will first address the issue of entitlement to costs, then the scale on which costs are payable and, last, the quantum of costs.

Entitlement to Costs

[14] The College was wholly successful on the Motion; after approximately 2.5 years of litigation, the Pleading was struck and the action is dismissed in its entirety. There is nothing about the College’s conduct during the litigation to support depriving the College of its costs of the Motion or of the action. Nor is there anything about the College’s conduct during the litigation to support awarding costs against the College for any step in the proceeding.

[15] The College is entitled to its reasonable costs of the Motion and of the action.

The Scale Upon Which Costs are Payable

[16] The College seeks its costs on the lowest of the three scales upon which costs may be awarded—partial, substantial, and full indemnity (listed from lowest to highest). The request for costs on the partial indemnity scale is reasonable; costs shall be paid on that scale.

The Quantum of Costs

a) Fees

[17] In its five-page bill of costs, the College provides particulars of fees on the full indemnity scale totaling $59,929.50. The College multiplies that amount by 60 percent to arrive at fees on the partial indemnity scale of $35,957.70.

[18] The full indemnity fees totaling $59,929.50 include $2,810.00 for the preparation of the written costs’ submissions and a bill of costs. I treat those fees as separate from the costs of the Motion and of the action. The $2,810.00 in costs related to the costs submissions and bill of costs are addressed at the conclusion of this ruling.

[19] The court’s calculation of fees on the full indemnity scale is $57,119.50 ($59,929.50 - $2,810.00) and on the partial indemnity scale is $34,271.70 ($57,119.50 x 0.6).

[20] The fees totaling $57,119.50 reflect the work of six timekeepers (senior counsel, associate counsel with carriage of the file, a “clerk”, and three articling students). I am satisfied that the hourly rates charged by each of the timekeepers is reasonable (r. 57.01(1)(0.a)).

[21] Regarding the number of hours spent by each timekeeper (r. 57.01(1)(0.a)), I note the following.

[22] As between the associate counsel who had carriage of the file and senior counsel, the former did the vast majority of the work (approximately 140 hours for the former and 4 hours for the latter). Based on the nature and number of the claims advanced and the number of appearances required prior to the hearing of the Motion, I am satisfied that there was no duplication of effort in the work done by the two lawyers. In this proceeding, it was reasonable for associate counsel to consult with senior counsel from time to time.

[23] Collectively, the three articling students spent approximately 40 hours on this proceeding. Almost all their time was spent on either the first motion to strike or the Motion. The first motion to strike was abandoned after Ms. Obita was granted leave to file the Pleading.

[24] Delegation of some of the work on the two motions to strike was reasonable. It is, however, unclear to me why a week of work by articling students was required in addition to associate counsel’s 65 or more hours on the motions to strike. I therefore reduce the fees to reflect the court’s concern regarding the necessity of some of the work done by the articling students.

[25] Last, I consider the 31.7 hours spent by a non-lawyer, referred to in the bill of costs as a “clerk”. Is it reasonable to require that fees for non-lawyer employees, other than articling students, be paid by an opposing party?

[26] It is important to distinguish between two types of tasks that non-lawyer employees of a law firm typically carry out. The two types of tasks are “law-related tasks” and “administrative tasks”: Fettes v. Wojcik, 2017 ONCJ 13, para 43 and fn 6; MacKenzie v. 1785863 Ontario Ltd., 2018 ONSC 4992, paras 23-24; and W. v. F., 2024 ONSC 2170, para 27.

[27] Regardless of the scale upon which costs are payable, a party ordered to pay costs is not obliged to pay fees for work done by a law clerk, which is effectively administrative work that an assistant is capable of performing: MacKenzie, at para. 24.

[28] As noted by Sharma J. at para. 25 of W. v. F., a party may recover fees charged by law clerks for services the Law Society of Ontario authorizes them to provide. In support of that conclusion, Sharma J. cites the Rules of Civil Procedure, Tariff A, Lawyers’ Fees and Disbursements Allowable Under Rules 57.01 and 58.05 (“Tariff A”). Part I of Tariff A deals with fees. It provides that “[w]here students-at-law or law clerks have provided services of a nature that the Law Society of Ontario authorizes them to provide, fees for those services may be allowed.”

[29] There is nothing in the College’s bill of costs to assist the court in determining whether the clerk is a licensed paralegal, a law clerk with the relevant diploma or certificate, or an administrative assistant. Nor is there any information in the bill of costs to assist the court in understanding the tasks carried out by the clerk. The bill of costs does not support a finding that the clerk spent time on law-related tasks.

[30] If anything, the bill of costs supports a conclusion that the clerk spent time on administrative tasks. The bill of costs divides the work done into eight sections—starting with the initial claim and pleadings and concluding with costs. For each of the eight sections, an element of the work described is “instructions to clerk/student”. There is no information about the type of work the clerk was instructed to do.

[31] For those reasons, I do not allow the fees claimed for the clerk’s time ($4,755).

[32] Ms. Obita’s costs submissions do not address the amount of costs that she, as “an unsuccessful party could reasonably expect to pay” on the Motion or in the action (r. 57.01(1)(0.b)). Ms. Obita was, however, aware from the outset that the College was represented by counsel and was therefore incurring expenses to respond to and defend the claims she was advancing.

[33] Regarding the factors addressed in rr. 57.01(1)(a), (c), and (e), I note the following.

[34] Ms. Obita claimed damages totaling $5,000,000. There could be no doubt that the College would take a claim of that magnitude seriously. In the end, Ms. Obita did not recover any damages. (r. 57.01(1)(a)).

[35] The number of causes of action that Ms. Obita advanced contributed to the complexity of the proceeding (r. 51.07(1)(c)). The nature of the allegations made and of the relief claimed also contributed to the complexity of the proceeding. For example, Ms. Obita made allegations against the College generally, against administrators, and against professors. As another example, Ms. Obita sought relief for her personal benefit and relief for the benefit of students and former students.

[36] The court recognizes that Ms. Obita was self-represented throughout the proceeding. That status did not, however, give Ms. Obita license to ignore deadlines set in court orders; to deliver documents that do not comply with the Rules regarding document standards; or to ignore procedural requirements set out in the Rules (r. 57.01(1)(e)).

[37] Ms. Obita served documents related to motions that she chose not to pursue. Ms. Obita’s conduct resulted in the proceeding taking longer than was reasonable for the Motion to be heard. Ms. Obita’s failure to comply with the Rules regarding the form and content of court documents led to two interim evidentiary rulings within the context of the Motion, with the College virtually entirely successful on both rulings (r. 57.01(1)(e)).

[38] Last, I turn to the importance of the issues (r. 57.01(1)(b)). The importance of the issues to the parties is patently evident from the quantum of damages claimed, the number of causes of action pursued, and the nature of the allegations regarding the College’s treatment of Ms. Obita or of the wider student body.

[39] For the reasons set out above, I conclude that a reasonable assessment of the full indemnity fees is $49,860.00 ($57,119.50, less $2,500.00 for some of the articling students’ time, and less $4,755.00 for all the clerk’s time; the result is rounded to the nearest tens of dollars). I fix the fee portion of costs payable on the partial indemnity scale at $29,916.00 ($44,860 x 0.6; the result is rounded to the nearest dollar). The applicable HST is $3,889.08 ($29,916.00 x 0.13).

b) Disbursements

[40] The disbursements claimed, including HST where applicable, total $1,509.62. Of that amount, $68.88 is HST, and $842.00 is for three filing fees. I am satisfied that the disbursements claimed are reasonable; the amount claimed reflects a cost-effective approach to representation of the College.

The Costs Payable

[41] I fix the costs payable by Ms. Obita for the Motion and the action, on the partial indemnity scale, in the amount of $35,515.00 ($29,916.00 + $3,889.08 + $1,509.62; the result is rounded to the nearest dollar).

[42] The College is successful on its claim for costs on the partial indemnity scale. The College is not, however, entirely successful on the issue of the quantum of costs payable on that scale. The time spent on preparation of written costs submissions and a bill of costs is reasonable. I balance the reasonableness of the time spent against the measure of success achieved. I award the College its costs related to the written costs submissions and bill of costs, on the partial indemnity scale. I fix those costs in the amount of $1,000 (inclusive of fees, disbursements, and applicable HST).

[43] In summary, Ms. Obita shall pay to the College, on the partial indemnity scale, (a) costs of the Motion and of the action in the amount of $35,515.00 (fees, disbursements, and applicable HST), and (b) $1,000.00 (over and above the $35,515.00) for the costs portion of the proceeding.

[44] At the conclusion of the Final Ruling, the court dispensed with the requirement for the College to seek Ms. Obita’s approval as to form and content of the draft order to be prepared based on that ruling: at para. 137. For the same reasons given in the Final Ruling, the court dispenses with the requirement for the College to seek Ms. Obita’s approval as to form and content of the draft order to be filed regarding costs awarded in this ruling.

[45] The College shall prepare a draft order, in an editable Word format. That document shall be filed with the court in the ordinary manner and to my attention. The College shall provide Ms. Obita with a copy of the draft order and confirm to her when it has been filed with the court.

Released: March 31, 2025
Sylvia Corthorn