



COURT OF APPEAL FOR ONTARIO

CITATION: Girao v. Cunningham, 2021 ONCA 18

DATE: 20210108

DOCKET:
    C63778

Fairburn
    A.C.J.O., Lauwers and Zarnett JJ.A.

BETWEEN

Yolanda
    Girao

Plaintiff
    (Appellant)

and

Lynn
    Cunningham
and Victor Mesta

Defendant
    (
Respondent
)

Yolanda
    Girao, acting in person

David Zuber
    and Michael Best, for the respondent

Heard: in writing

On appeal
    from the judgment of Justice Peter Cavanagh of the Superior Court of Justice,
    sitting with a jury, dated March 3, 2017, from the order on the threshold
    motion, dated April 20, 2017, with reasons reported at 2017 ONSC 2452, and from
    the costs order, dated July 20, 2017, with reasons reported at 2017 ONSC 4102.

COSTS
    ENDORSEMENT

[1]

The panel allowed the appeal in this matter with
    reasons reported at 2020 ONCA 260. The appeal largely turned on the ways in
    which the trial was unfair to Ms. Girao: see para. 176. She was awarded the
    costs of the appeal and of the trial, including disbursements.

[2]

The trial context was described at para. 175 of
    the appeal decision:

At trial, the appellant functioned as a
    legally-untrained, self-represented, non-English speaking litigant in
    testifying, examining and cross-examining through a Spanish interpreter. She
    was faced with a phalanx of defence counsel, two representing Ms. Cunningham,
    and two representing Allstate Insurance Company of Canada. The trial was 20
    days long, involved many witnesses, and considered complex medical evidence.

[3]

The trial led Ms. Girao to expend funds that are
    to be treated as costs thrown away because they were incurred for steps in the
    proceeding which were reasonably necessary to proceed with the action but
    which have been rendered useless by the other partys conduct in responding or
    not responding to the action:
Royal Bank v. Blatt
, [1991] O.J. No.
    688 (Ont. Gen. Div.).

[4]

Ms. Girao is therefore entitled to her trial
    disbursements in the amount of $14,021.40, broken down as follows:



Expense

Total incl. GST/HST



Medical Legal Report  Dr. Kryjshtalskyj

$2,260.00



Witness Tickets to Toronto (Bruno and
          Giselle Mesta)

$296.48



Lodging for Witnesses (Bruno and Giselle
          Mesta)

$39.96



Courier & Postal service

$44.13



Dr. Malickis attendance

$2,712.00



Dr. Manohars attendance

$2,712.00



Dr. Beckers attendance

$3,390.00



Mr. Wollachs attendance

$1,356.00



Ms. Mukherjees attendance

$1,210.83



[5]

Ms. Girao is also entitled to her appeal
    disbursements in the amount of $6,491.39, broken down as follows:



Expense

Total incl. GST/HST



Trial transcripts

$5,623.33



Courier & Postal service

$868.06



[6]

Ms. Girao also seeks payment of the costs of
    this action up to the trial including the amount of about $137,000 paid to
    former counsel. In our view these costs, including pre-trial preparation, must
    be left to the discretion of the trial judge who hears the re-trial.

[7]

In reserving costs of the action to the judge
    presiding over the re-trial, we direct that if an award of costs is made to the
    respondent, it shall not include any amount for or relating to the respondents
    preparation for or conduct of the trial under appeal. We agree with the
    approach of the British Columbia Court of Appeal in
Fullerton v. Matsqui
    (District)
(1992), 14 B.C.A.C. 153, [1992] B.C.J. No. 2969 that the
    appellant should not in any event be responsible for costs incurred in
    responding to the actions of the respondents previous trial counsel criticized
    in our appeal reasons.

[8]

Ms. Girao also seeks a fee allowance as a self-represented
    person, for herself and her husband, in the amount of nearly $800,000,
    calculated at $150 per hour, including their time in court at the trial and on
    the hearing of the appeal.

[9]

The principles for awarding fee allowances to
    self-represented litigants were set out by Rouleau J.A. in
Benarroch v.
    Fred Tayar & Associates P.C.
, 2019 ONCA 228, following
Fong v.
    Chan
(1999), 46 O.R. (3d) 330, [1999] O.J. No. 4600 (Ont. C.A.),
per
Sharpe J.A. At para. 26 of
Fong
, Sharpe J.A. set out two conditions
    that must be met if a self-represented litigant is to be awarded a fee
    allowance. 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 lawyer
retained to conduct the
    litigation; and

b)

as a result, incurred an opportunity cost by
foregoing remunerative activity
.

[10]

There is no doubt that much of what Ms. Girao
    and her husband did was work ordinarily done by a lawyer although, as noted in
Fong
and
Benarroch,
self-represented litigants should not be awarded a
    fee allowance for time they would ordinarily be attending in court.

[11]

Another policy direction in
Fong
was that
    costs should serve to dissuade misconduct in litigation. That is why an insurer
    faced with an unrepresented litigant should expect to pay costs in some amount,
    particularly where the insurers trial tactics merit sanction, as in this case.
    In
Benarroch
, at para. 35, Rouleau J.A. stated that where there is
    little evidence of lost opportunity costs, any award will likely be nominal.
    There is no doubt that Ms. Girao and her husband would happily have been doing
    something else during the many hours they spent preparing for and attending at
    the trial and the appeal. We would grant a fee allowance that is, in the
    context, nominal but that is also consistent with the policy direction in
Fong
to reflect disapproval of a partys inappropriate trial tactics.

[12]

As to method of calculation and quantum, Ms.
    Girao claims for 5,261 hours including time for attendance at hearings and for
    document compilation that is not compensable. On several days, her claimed
    hours exceed 24 hours in the day. Her proposed hourly rate of $150 per hour
    falls at the very high end of the range established by case law. There is no
    doubt that Ms. Girao spent considerable time working on her case and her work
    proved effective. However, her method of accounting for such time does not lend
    itself to calculation based on hours worked.

[13]

We are mindful of the comments of Rouleau J.A.
    in
Benarroch
, who noted that lump sum costs awards may be preferable
    in order to avoid transforming costs hearings into complex proceedings where
    the self-represented claimant is called upon to account for every minute of the
    day and prove every penny of revenue: at para. 18.

[14]

Ms. Girao is entitled to a modest fee allowance
    for the trial and the appeal, which we fix at $35,000, for an all-in costs
    award of $55,512.79.

Fairburn
    A.C.J.O.

P.
    Lauwers J.A.

B.
    Zarnett J.A.


