Court File and Parties
Court File No.: CV-16-552472 Date: 2025-09-09 Ontario Superior Court of Justice
Between: Linda Paris Faith Rosenberg, Applicant – and – Macdonald Sager Manis LLP, Respondent
Counsel: Rolf Piehler, for the Applicant Jayson W. Thomas, for the Respondent
Heard: July 18, 2025
Reasons for Decision
John Callaghan J.
Background
[1] This is a motion, per Rule 54.09(2) of the Rules of Civil Procedure, addressing an assessment under the Solicitors Act, R.S.O. 1990, c. S. 15. The assessment was conducted by Assessment Officer Ittleman. Macdonald Sager Manis LLP (the "Law Firm") opposes confirmation of the costs award arising out of the assessment.
[2] Linda Paris Faith Rosenberg retained the Law Firm regarding a property dispute. The action was partially successful. There then ensued a taxation of the Law Firm's account commencing in 2016. The assessment took place over an astonishing 42 days in 2021. Due to health issues of the Assessment Officer, the reasons were not released until 2024. In the end, the Law Firm's account was reduced by more than half.
[3] The Assessment Officer then fixed the costs of the 42-day assessment. During the assessment, Ms. Rosenberg had the aid of a lawyer, William Roland, but Mr. Roland never appeared on the matter. Ms. Rosenberg conducted the assessment. Ms. Rosenberg sought an order of costs that included the fees she paid her lawyer, her disbursements and compensation for her time. The Assessment Officer awarded her fees for the lawyer, her disbursements and $90,000 for her own time.
[4] The Law Firm opposes only the award of $90,000 to Ms. Rosenberg for her own efforts. The Law Firm challenges the award on the very narrow ground that there was no evidence upon which the Assessment Officer could conclude that Ms. Rosenberg had forgone remunerative employment such that she should receive an award of costs for her time. To be clear, for the purpose of this motion, the Law Firm does not challenge the time that Ms. Rosenberg devoted to the assessment. The challenge is whether the record was sufficient to ground an award of costs in respect of Ms. Rosenberg's efforts.
[5] For the reasons that follow, I grant the appeal and award Ms. Rosenberg $40,000 in costs for her own efforts.
Issues
[6] There are two issues to consider on this motion, the standard of review and whether Ms. Rosenberg has met the onus of proving an award of costs for her own efforts on the assessment.
Standard of Review
[7] A motion such as this is not a hearing de novo. The task for this Court is to decide if the Assessment Officer erred as a matter of principle. As stated by the Court of Appeal in Samuel Eng and Associates v. Ho, 2009 ONCA 150, at para. 1:
It is settled law that on an appeal from an assessment officer, the court is only concerned with questions of principle not with questions of amount or how the assessment officer exercised his discretion unless the decision is so unreasonable as to amount to an error in principle.
[8] Where the error is alleged to have been the application of the legal principles to the facts, the palpable and overriding standard is to be applied. This standard requires deference to the fact finding of the Assessment Officer and the assessment may only be varied where the determination is either not supported by any facts or there is a misapplication of a legal principle which is inextricably linked to the finding. The Supreme Court of Canada in Hydro-Quebec v. Matta, 2020 SCC 34, 450 D.L.R. (4th) 547, at para. 33 described the standard as follows:
Absent a palpable and overriding error, an appellate court must refrain from interfering with findings of mixed fact and law made by the trial judge: [cases omitted]. An error is palpable if it is plainly seen and if all the evidence need not be reconsidered in order to identify it and is overriding if it has affected the result: [cases omitted].
[9] In this instance, the Assessment Officer not only had the advantage of hearing the witnesses but did so as an expert in Solicitor Act assessments: Starkman Barristers v. Cardillo, 2017 ONSC 5530, at para. 61. As a result, an appellate court must act with restraint and may only intervene where there has been "a material error, a serious misapprehension of the evidence, or an error in law". An omission is only a material error "if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion": B.J.T. v. J.D., 2022 SCC 24, [2022] 1 SCR 668, at para. 56.
The Cost Award
[10] Ms. Rosenberg is an architectural designer. She submitted that she bills her clients on an hourly rate basis. She bills $375-500 per hour. Before the Assessment Officer, she set out a detailed list of the hours she worked on this matter. Those hours are not in dispute. She requested a cost order of $150,000, even though she claimed her lost revenue was more than double that amount. She submitted that she had foregone work to deal with the assessment. She submitted:
Moreover, as an Architectural Designer, charging $375.00 an hour, I have lost significant income to prepare for and attend at the hearing. I would reference this as "lost opportunity costs." I could not fulfill a number of contracts with several clients as a result of having to prepare and attend at this extended hearing. My lost opportunity costs on a low-ball scale are in the ballpark of $150,000.00, which I submit is fair and reasonable and should be awarded to me as part of my costs for the hearing.
[11] The Assessment Officer set out her argument as follows:
Ms. Rosenberg also seeks lost opportunity costs as a self-represented litigant because she was required to divert her time as an Architectural Designer from her clients to the assessment proceeding. She asserts that she lost significant time to prepare for and appear at the hearing and that she could not fulfill a number of contracts with several clients as a result thereof. She estimates these costs on a "lowball" scale at $150,000.00 based on an hourly rate of $375.002. Particulars are set out in a schedule to Ms. Rosenberg's submissions and include one example of a project that ran from January 4, 2016, to May 26, 2017, and for which she billed $460,000.00.
[12] The Assessment Officer reviewed the criteria in Rule 57.01 of the Rules of Civil Procedure for setting costs of a proceeding. He commented that Ms. Rosenberg did nothing to delay or prolong the assessment hearing. However, he was critical of the Law Firm which was ill prepared and caused significant delays in the hearing. The Assessment Officer commented as follows:
I discuss below on Ms. Rosenberg's efficient presentation of her case above. Nothing that she did had the effect of unnecessarily lengthening the duration of the hearing. On the other hand, I find that the conduct of the Solicitors unnecessarily lengthened the duration of the assessment. The Solicitors' main witness, Shawn Pulver, testified in chief for about the first fifteen days of the hearing. Whether through his own design or ill-preparedness or as a result of the examination-in-chief conducted by the Solicitors' lawyers, his evidence was both repetitive and redundant. The two lawyers for the Solicitors, Mr. Manis and Ms. Jonathan, regularly spelled each other, with one counsel conducting the hearing on one day and the other stepping in on the next day. In my view, this also interfered with the smooth flow of their examinations. Lastly, I am of the view that the apparent hostility and lack of respect displayed by Mr. Manis towards Ms. Rosenberg constituted unreasonable conduct and negatively impacted upon the duration of the hearing.
[13] He later commented:
Ms. Rosenberg's presentation of evidence was clear, relevant, and detailed, and it reflected an effective use of time. In fact, she was better prepared and conducted herself with greater skill than many lawyers who have appeared before me over the years. She is to be commended. I contrast this with the presentation of the Solicitors' case, which I discussed above.
[14] The Assessment Officer went on to note that at $375.00 per hour, the value of Ms. Rosenberg's time spent on the assessment was $323,250.00, but her claim was only $150,000. He awarded $90,000. The Assessment Officer went on to conclude:
I have no reason to question the Client's record of time spent as I observed her to be a detail-oriented, well-prepared party. However, she has not provided any particulars of lost contracts or delayed projects or reduced client billings. I also must consider that she did rely on a lawyer to assist her in the background with respect to whom she is also seeking costs. Having regard to all relevant factors, including the Rule 49 costs consequences, I would fix Ms. Rosenberg's lost opportunity costs at $90.000.00.
Analysis
[15] Both sides rely on Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.), and Mustang Investigations v. Ironside, 2010 ONSC 3444, 103 O.R. (3d) 633 (Div. Ct.). As summarized by the Court of Appeal in Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228, these cases "stipulate that self-represented litigants must show that they incurred an opportunity cost by forgoing remunerative activity. In doing so, they do not suggest that claims for lost opportunity costs should become complex hearings where the self-represented claimant is called upon to account for every minute of the day and prove every penny of revenue that was lost": para. 18. It is noted by the Court of Appeal, that a self-represented litigant is only entitled to compensation for work that the lawyer would have done and not for what the litigant would have done in any event. Any award to a self-represented litigant is not intended to be an hour for hour compensation analysis. Rather where "the judge is satisfied that lost opportunity costs have been suffered because the self-represented party has forgone remunerative activity, the judge is either to assess and fix "moderate" or "reasonable" costs…", at para. 33. In Benarroch, the Court stated where there is little evidence of lost opportunity costs, any award will likely be nominal.
[16] In Benarroch, the self-represented litigants were lawyers. When they sought costs for their work on the file, they were met with the argument that they did not submit evidence of any lost opportunity. They then filed affidavit evidence for which there was an objection. The affidavit set out the factual basis for the claim for lost opportunity costs. In the end, the Court found no reason to interfere with the finding that there was a lost remunerative opportunity. However, the Court of Appeal found that the calculation of $60,583.05 for costs did not qualify as "moderate" or "reasonable". Where the lost revenue is not calculable, the self-represented litigant is still entitled to a modest nominal fee. The Court of Appeal set aside the cost award. Instead of returning the matter to be reassessed, the Court of Appeal set the award at $20,000.
[17] In Girao v. Cunningham, 2021 ONCA 18, at para. 11, the Court of Appeal again restated the law as it relates to self-represented litigants as follows:
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 Law Firm retained to conduct the litigation; and
b) as a result, incurred an opportunity cost by forgoing remunerative activity.
[18] In Girao, the Court of Appeal awarded $35,000 to a self-represented litigant who spent over 5,000 hours, claimed $150 per hour and sought $800,000. The fee reflected a 20-day jury trial and an appeal. The Court noted that some of the time charges reflected time that the self-represented litigant would have to spend in any event. The Court set what it described as a modest nominal lump fee of $35,000 for the trial and appeal.
[19] In this case, the Law Firm argues that Ms. Rosenberg did not provide any corroborative evidence of any lost or delayed contracts or other evidence of lost opportunities. Indeed, this very fact was noted by the Assessment Officer when he stated, "she has not provided any particulars of lost contracts or delayed projects or reduced client billings". The Law Firm submits that this is fatal as the test requires evidence of lost remuneration.
[20] Among other things, Ms. Rosenberg points to cases where it has been noted that evidence of lost remuneration is not required in all cases. Ms. Rosenberg refers to Witter v. Gong, 2016 ONCJ 722, at para. 8 which reviews case law after Fong v. Chang which have awarded costs to self-litigants who had not demonstrated lost remunerative opportunity: McMurter v. McMurter, 2017 ONSC 725 at para. 19, Warsh v. Warsh 2013 ONSC, at para. 15. These cases are all before the above-cited Court of Appeal cases which clearly reiterate that some evidence of lost remunerative opportunity is required.
[21] The Law Firm submission was focused on the lack of particulars provided by Ms. Rosenberg as to her claim of lost remuneration. In particular, it was asserted that:
MSM respectfully submits that the Assessment Officer erred in awarding $90,000.00 in lost opportunity costs to the Applicant in the absence of any evidentiary foundation demonstrating actual lost opportunity. This award was based solely on self-reported time records and generalized assertions about lost income, contrary to established legal standards.
The Applicant provided no invoices, cancelled contracts, bank records, tax returns, or corroboration of any kind to substantiate that she had to forgo remunerative work, let alone the hourly rates she claimed. The assessment officer acknowledged as much:
However, she has not provided any particulars of lost contracts or delayed projects or reduced client billings.
[22] In my review, the Assessment Officer clearly accepted that Ms. Rosenberg spent considerable time on the assessment doing work that would otherwise be performed by a lawyer and that she had forsaken some level of remunerative opportunity. The Law Firm argues there was insufficient evidence to support Ms. Rosenberg's claim. Assessing costs at the conclusion of a hearing is often informal. Here, Ms. Rosenberg prepared signed submissions stating that she had foregone work but provided no detail such as lost contracts or postponed work. There was no objection by the Law Firm to the manner in which she presented her case. The issue here is the lack of particulars provided as to the apparent lost remunerative work.
[23] Unlike some other areas of the law, there is no requirement that Ms. Rosenberg's evidence be corroborated. The evidence of one witness is legally capable of meeting the burden of proof in a civil proceeding: Briscoe Estate v. Canadian Premier Life Insurance Company (2012), 113 O. R. (3d) 161, 2012 ONCA 854. As such, it was open to the Assessment Officer to conclude there was a loss of remunerative work by Ms. Rosenberg.
[24] In this case, the Assessment Officer was alive to the frailties of Ms. Rosenberg not having produced any details relating to the lost remuneration, as he made specific note of the lack of such evidence. Nonetheless, he clearly accepted her claim that she lost work opportunities as credible and worthy of compensation. He was obviously aware that she had to spend 42 days at a hearing, largely due to the Law Firm's delays, lack of preparation and other failures. The conclusion that she lost work opportunities is an inference he was free to make based on the evidence. I see no basis to interfere with the Assessment Officer's finding that Ms. Rosenberg suffered lost opportunity costs.
[25] However, I do accept the argument that the Assessment Officer assessed costs "without reconciling" the legal work done with any particulars of the lost opportunity for remunerative work by Ms. Rosenberg. In my view, what is required is some recognition of the actual legal work performed assessed against the lost opportunity for remunerative work. Here, the Assessment Officer accepted that there was some lost opportunity but never considered it against what legal work Ms. Rosenberg was required to undertake or the specifics of any lost remunerative work.
[26] In reading the decision, the Assessment Officer appears to have treated the cost assessment of Ms. Rosenberg's time on the same basis as if she was the lawyer. For example, there was no analysis of the time Ms. Rosenberg claimed and whether the time she spent on the litigation process was as a party rather than a lawyer. For example, her list of hours includes attendance at the hearings and mediations which she undoubtedly would have attended in any event. There is further time reviewing documents but again, as the sole witness and client, she would have spent considerable time doing so. There was no corresponding assessment of the time of Mr. Roland whose bill of costs shows, among other work, that he was involved in discussing and reviewing the notes taken by Ms. Rosenberg after each day of the assessment, he prepared Ms. Rosenberg to testify and assisted her with the closing submissions. Clearly, she had the assistance of a lawyer for which she was compensated but there is no analysis as to what work she performed that a lawyer would have been required to do. Similarly, there was no analysis as to whether the $90,000 was a moderate fee or reasonable amount to be paid to her as a self-represented litigant as discussed in Benarroch. Instead, it appears that the Assessment Officer treated the assessment of Ms. Rosenberg's claim as if her time spent was equivalent to that of a lawyer. In my view, this constituted an error of law: Benarroch, para. 25; Grafton Management Inc. v. Charlottetown (City), 2021 PECA 11 at para. 40. I would add that her claim of $350 per hour exceeds Mr. Roland's partial indemnity rate by $140 which would seem excessive, although it is not clear if the Assessment Officer used that rate in his assessment of these costs.
[27] I appreciate that the Assessment Officer need not conduct a formal assessment but may provide a lump sum cost award: Benarroch, para. 18. This is in keeping with the less formal process of assessing costs of a proceeding, as opposed to a solicitor/client assessment. The Assessment Officer clearly accepted in preparing and attending a 42-day hearing, which was unnecessarily extended by the Law Firm, that Ms. Rosenberg lost an opportunity to earn revenue from her business, notwithstanding the lack of particulars. However, I do not believe the Assessment Officer turned his mind to assessing the extent of the hours performed by Ms. Rosenberg which a lawyer might perform. Moreover, given the lack of particulars of the work that was foregone, there is no evidence of the corresponding amount of work for which there should be modest compensation. This does not disentitle Ms. Rosenberg to compensation. Like Girao, Ms. Rosenberg was entitled to a modest nominal fee in the circumstances. Accordingly, I believe there was a reviewable error in not applying the test in Benarroch and Girao appropriately.
[28] In making his assessment, it is apparent that the Assessment Officer had regard to the fact that the conduct of the Law Firm prolonged the assessment. As the Court of Appeal notes in Girao, in assessing costs including those payable to a self-represented litigant, costs are an appropriate tool to dissuade misconduct. Accordingly, I believe the conduct of the law firm, in part, informs the amount of the award.
[29] Clearly, $90,000 is a significant amount of money. While it is less than the requested $150,000, it would seem to be beyond what is contemplated in either Benarroch or Girao as a "reasonable" or "moderate" nominal fee.
[30] This matter has dragged on for many years. The Registrar's order of assessment was issued in 2016. The assessment began in 2021 and lasted 42 days concluding in a decision in 2024 which was followed by the underlying cost decision. It would be unproductive if further judicial and party resources were used to send this matter for a further consideration. As was done in Benarroch and Girao, it is appropriate to resolve the matter rather than return the matter to the Assessment Officer with the attended further delay.
[31] In all the circumstances, $40,000 is reasonable, particularly having regard to the fact that there was neither evidence of the extent of the foregone work nor an assessment of the hours worked by Ms. Rosenberg that would be work otherwise performed by a lawyer. In my view, this is an amount that falls within the range of what the Court of Appeal has described as a "modest fee allowance", in the context of this particular assessment hearing.
Disposition
[32] The motion is granted. The Assessment Officer's decision is varied and an order of $40,000 of costs for Ms. Rosenberg's time is substituted for the $90,000 previously ordered.
[33] The parties are encouraged to agree on costs of this motion. Any party requesting costs shall serve and file a bill of costs and a submission of no more than 6 pages within 14 days of the receipt of this judgment. Any responding submissions of 6 pages must be accompanied by the responding party's bill of costs and must be served and filed 10 days after receipt of the requested costs.
Callaghan J.
Released: September 9, 2025