Superior Court of Justice - Ontario
RE: Pei Zhang and Linda Zhang, personally, and in their capacities as the Estate Trustees of the Estate of Yong Xiang Song, deceased, Applicants
-and-
Ya Ping Zhang, Respondent
BEFORE: MacNeil J.
COUNSEL: James Dunphy and Yana Fox – Lawyers for the Applicants Ya Ping Zhang – Self-represented Respondent
DECISION ON COSTS
1The Applicants are the estate trustees for their mother, the late Yong Xiang Song (“Ms. Song”). They commenced the within application seeking an order granting them leave to issue a writ of possession respecting the premises where their father, the Respondent Ya Ping Zhang, currently resides (“the Property”), on the basis that it was solely owned by Ms. Song and forms part of her estate.
2By my decision released on March 5, 2026, I dismissed the application in its entirety finding that the court had no authority to grant leave to issue a writ of possession because no determination or order had yet been made that the Applicants were entitled to exclusive possession of the Property. I also raised the issue of whether the Property is a “matrimonial home” under the Family Law Act, R.S.O. 1990, c. F.3 and that, in my view, an application needs to be made under that legislation to determine who has the right to possession of the Property.
3The parties were unable to resolve the issue of costs of this application. As a result, written submissions were filed by both parties. This is my decision respecting costs.
Position of the Respondent
4The Respondent, Mr. Zhang, was self-represented in this proceeding. He states that he is a professional engineer and that his hourly rate is $100.00 per hour. Mr. Zhang submits that he spent more than 150 hours on the application and so is seeking $15,000.00 as legal costs. He submits that the Applicants were dishonest in their allegations and that he had sent their lawyers copies of the receipts and other documents that supported his position. He further submits that he is self-employed and that “this case caused his loss in business”. Mr. Zhang also seeks his disbursements incurred for obtaining sworn affidavits ($35.00), printing ($25.80), and court fees ($100), totalling $160.80.
5In his written costs submissions, Mr. Zhang attaches an offer to settle the application proper, dated March 19, 2026. It appears this offer was served on the Applicants at the same time as Mr. Zhang’s costs submissions, however.
Position of the Applicants
6The Applicants submit that the substantive issue in the parties’ dispute – that is, who has the right to possession of the Property – has yet to be determined. They state that they have commenced a fresh proceeding wherein this issue will be decided, along with other requested relief. The Applicants contend that the issue of costs should be left to the judge hearing the fresh proceeding as they will be in the best position to assess the success of the parties, evaluate the reasonableness of the parties’ conduct, and determine a fair costs award. In this regard, the Applicants rely on the decision in Crosslinx Transit Solutions General Partnership v. Ontario, 2022 ONCA 250, wherein the Ontario Court of Appeal sent an application back for rehearing and held that the “fairest disposition” was to leave the issue of the costs of the application to the judge on the rehearing.
7The Applicants submit that, practically speaking, in the fresh proceeding, the parties will be relying on the same materials as filed in this application. A decision on costs now could lead to an absurd result where the party deemed unsuccessful in this proceeding could have to pay an adverse costs award and that same party could then be wholly successful in the fresh application where the costs incurred are likely to be significantly lower.
8The Applicants also submit that, as a self-represented litigant, Mr. Zhang cannot recover costs of his own time spent defending the application. They rely on Fong v. Chan, 1999 CanLII 2052, at para. 26, wherein the Court of Appeal held that a self-represented litigant “should not recover costs for the time and effort that any litigant would have to devote to the case”. Moreover, Mr. Zhang has provided no evidence that he has incurred any lost opportunity cost. They state that it is a contested issue whether he works at all. His time is indistinguishable from that of any other self-represented litigant and is therefore not compensable.
General Principles
9Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that an award of costs is in the discretion of the court.
10Rule 57.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that, when the court awards costs, it shall fix them in accordance with subrule (1) and the Tariffs. Tariff A establishes the fees and disbursements that are allowable under Rules 57.01 and 58.05.
11Rule 57.01(1) sets out factors to be considered by the court in exercising its discretion to award costs, including:
- the result in the proceeding;
- any offer to settle or to contribute made in writing;
- the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
- the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
- the amount claimed and the amount recovered in the proceeding;
- the complexity of the proceeding;
- the importance of the issues;
- the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
- whether any step in the proceeding was: (i) improper, vexatious or unnecessary, or (ii) taken through negligence, mistake or excessive caution;
- a party’s denial of or refusal to admit anything that should have been admitted; and
- any other matter relevant to the question of costs.
12Rule 1.04(1.1) provides that, in applying the Rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
13Modern costs rules are designed to advance five main purposes: (1) to indemnify successful litigants for the cost 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 and sanction inappropriate behaviour by litigants; and (5) to encourage settlements: Fong v. Chan, 1999 CanLII 2052 (ON CA), 1999 CarswellOnt 3955, 128 O.A.C. 2 (Ont. C.A.), at para. 22; 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, at para. 10.
14A self-represented litigant’s entitlement to costs was confirmed by the Ontario Court of Appeal in Fong v. Chan, but the Court held that costs should only be awarded where the self-represented litigant can show that they devoted time and effort to work ordinarily done by a lawyer retained to conduct the litigation and that, as a result, they incurred an opportunity cost by forgoing remunerative activity. A self-represented lay litigant should receive only a “moderate” or “reasonable” allowance for the loss of time spent preparing and presenting the case. See Fong v. Chan, at paras. 23-26.
15Ultimately, in fixing costs, the primary principles remain fairness, reasonableness and proportionality.
16As stated by the Ontario Court of Appeal in Boucher v. Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.), at para. 26, when fixing costs, the calculation of hours and time rates is only one factor to be taken into account. The overall objective is “to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.” (See also Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), 2002 CarswellOnt 4020, [2002] O.J. No. 4495 (Ont. C.A.), at para. 4.)
Analysis
17As the successful party, Mr. Zhang is presumptively entitled to costs of the application.
18The fixing of costs is not a mechanical exercise (Boucher). The amount awarded should reflect an amount the court considers to be reasonable. I have considered the parties’ respective costs submissions, including the Bill of Costs of the Applicants, the steps undertaken by Mr. Zhang in responding to the application, and the outcome of this proceeding.
19While the Applicants submit that the pleadings/materials from this application will be reused for the fresh proceeding they have since commenced, I have no evidence of that. In any event, that does not mean that all of Mr. Zhang’s time and efforts in responding to this application should be simply ignored. Further, it may be that Mr. Zhang has to prepare new additional materials for the fresh proceeding, depending on what issues and relief have been pleaded by the Applicants therein.
20I find that Crosslinx is distinguishable from the case before me. In that case, the Court of Appeal allowed an appeal and remitted the application for a rehearing. Here, there was no appeal. The application was dismissed because the relief sought by the Applicants could not be ordered in the circumstances. Some might say it was brought prematurely.
21I find that, given the materials that were prepared by Mr. Zhang and given his oral submissions made to the court, he spent time and effort performing work that would ordinarily have been done by a lawyer if he had had the funds to retain one. The time he spent on responding to this application was time he could have spent on other pursuits, including employment. Therefore, in keeping with the principles set out in Fong v. Chan, I am satisfied that Mr. Zhang should receive some allowance for the loss of time spent preparing and presenting his case.
22The application did not raise particularly complex issues or require voluminous responding materials. Having said that, the issues were of great importance to Mr. Zhang since, if he was unsuccessful, he would have had to vacate the home where he has been living for many years. Mr. Zhang did prepare and file a number of affidavits and a factum in response to the Applicants’ materials. In my view, the fact that the relief sought by the Applicants could not be ordered because the issue of possession had not yet been decided means that this application served to unnecessarily lengthen the litigation between the parties. I also find that the Applicants could reasonably have expected to pay costs in the event of lack of success on the application.
23While Mr. Zhang states that he spent 150 hours on the application, I cannot accept that 150 hours would have been spent by a lawyer doing the same work as was done by Mr. Zhang. As well, it appears to me that a good portion of the claimed 150 hours was spent by Mr. Zhang in trying to locate relevant documents/information and to educate himself on court process, which is work that any litigant must do so that all pertinent information is before the court. In the circumstances, I will give Mr. Zhang credit for 15 hours of drafting of materials (which is significantly less than the time spent by the lawyers for the Applicants, as set out in the Applicants’ Bill of Costs), 5 hours for preparing for the hearing (which is 1.8 hours less than the preparation time docketed by Mr. Dunphy), and 5 hours for attending court (which is the same number of hours claimed by the Applicants’ lawyers), for a total of 25 hours. I will accept Mr. Zhang’s statement that his professional employment rate is $100.00/hour. I will award Mr. Zhang $2,500.00 in costs.
24With respect to his disbursements, Mr. Zhang did not provide any receipts. However, I accept that he had to incur some expense in getting affidavits sworn and that his materials needed to be printed/copied. As well, Mr. Zhang filed a Notice of Appearance for which a party currently must pay a filing fee of $172.00. I will award Mr. Zhang $200.00 in disbursements.
25Having regard to all of the relevant factors and considering the balancing exercise required under Rule 57.01 and the guidance provided by the Boucher, I am satisfied that awarding costs to Mr. Zhang in the amount of $2,700.00, inclusive of disbursements, is fair, reasonable and proportionate in the circumstances.
Claim for $50,000
26In his written costs submissions, Mr. Zhang also seeks an order that the Applicants pay him $50,000.00 “for Pei Zhang’s dishonest, abuse and discrimination, and Linda Zhang’s dishonest”. While Mr. Zhang included the same claim in his Factum under “Order Requested”, he did not commence a counter-application against the Applicants seeking such damages. Since there was no counter-application, his claim for $50,000.00 was not properly before the court in this proceeding. No order for damages was made. Such an order also cannot be made by the court at this time, when it is only deciding what amount of costs should be ordered payable at the conclusion of the case. Any claim for damages as against the Applicants that Mr. Zhang may wish to seek would have to be the subject of a different proceeding, where such a claim is properly commenced and pleaded.
Disposition
27In the result, the Applicants are ordered to pay to the Respondent, Mr. Zhang, costs of the application fixed in the amount of $2,700.00. Costs are ordered to be paid within 30 days of the date this decision is released to the parties.
Released: July 9, 2026
MacNEIL J.