Background
Macdonald Sager Manis LLP represented Linda Paris Faith Rosenberg in a property dispute. Rosenberg opposed the firm’s legal fees and, acting for herself during a protracted assessment hearing, obtained a meaningful reduction.
The assessment officer awarded Rosenberg $90,000 for lost-opportunity costs. On the law firm’s motion, a Superior Court judge found errors in the assessment officer’s approach and reduced the award by $50,000 to $40,000. Rosenberg appealed, seeking restoration of the original $90,000 award.
The Court’s Holding
The Court of Appeal dismissed the appeal. Because the appeal concerned costs alone, Rosenberg required leave to appeal under s. 133(b) of the Courts of Justice Act, but she had not sought leave. The court added that even if she had applied, she would not have satisfied the stringent test for leave to appeal a costs award.
The motion judge was entitled to find that the assessment officer had effectively valued Rosenberg’s time as though she were counsel, without distinguishing time she would have spent participating in the litigation as a party. Rosenberg also had not provided particulars of the work opportunities she allegedly lost. Those errors justified replacing the substantial award with more modest compensation rather than ordering a further inquiry. The court observed that the resulting $40,000 award was, if anything, generous on the available record.
Key Takeaways
- An appeal concerning only a costs award requires leave under s. 133(b) of Ontario’s Courts of Justice Act.
- Compensation for a self-represented litigant’s lost opportunities requires evidence identifying the work or opportunities actually foregone.
- After identifying errors in principle, a reviewing judge may substitute a more modest costs award instead of returning the issue for further inquiry.
Why It Matters
The decision underscores both the procedural barrier to appealing costs awards and the evidentiary limits on compensating self-represented litigants for their time. A litigant’s participation cannot simply be valued as if the litigant were the lawyer, particularly without particulars establishing genuine opportunity losses.
Rosenberg was ordered to pay $5,000 in appeal costs, inclusive of applicable taxes and disbursements.