Balogun v Pandher, 2021 ABQB 7

Court of Queen’s Bench of Alberta Citation: Balogun v Pandher, 2021 ABQB 7 Date: 20210105 Docket: 0303 12927 Registry: Edmonton Between: Alexander O. Balogun, Ester Elizabeth Balogun (By Her Next Friend, Alexander O. Balogun), Daniel Richard Balogun (By His Next Friend, Alexander O. Balogun), Alexander Otto Balogun Jr. (By His Next Friend, Alexander O. Balogun) Plaintiffs - and - Harbhajan Singh Pandher Defendant _______________________________________________________ Decision on Costs of the Honourable Madam Justice M.E. Burns _______________________________________________________ Introduction [ 1 ] Mr.

Balogun is a self-represented litigant in a matter spanning 17 years. Mr. Balogun was awarded $129,558.08 on June 29, 2020 for damages arising from a motor vehicle accident ( Balogun v Pandher , 2020 ABQB 386 (the “Judgment”)). He has provided two three- inch binders of material which he claims are relevant to a costs award. I have also been provided written representations from the Defendant. [ 2 ] The issues are: 1. Is Mr. Balogun entitled to costs? 2. What is the effect of the formal offer? Facts [ 3 ] Mr. Balogun was in a motor vehicle accident on May 14, 2003, and sought just over $1,000,000.00 in damages.

On August 26, 2014 the Defendant extended a formal offer of $160,000.00 plus pre-judgment interest, plus taxable costs and disbursements. As noted above, on June 29, 2020 Mr. Balogun was awarded $129,558.08.

Is Mr. Balogun entitled to costs? [ 4 ] The Defendant submits that Mr. Balogun, as a self-represented litigant, is not entitled to costs absent a policy reason supporting the award. The Defendant notes that the litigation should have been a simple trial regarding quantum only, but was unnecessarily drawn out by Mr. Balogun. There were 37 affidavits filed by him, a large amount of case management meetings, various unnecessary steps, and five formal offers that were rejected without a counter-offer by Mr.

Balogun (three of the offers were greater than what he won at trial). [ 5 ] The Defendant further notes that costs are generally limited to disbursements and GST for a self-represented litigant.

Citing Hogarth v Rocky Mountain Slate Inc , 2013 ABCA 116 at para 17 , the Defendant reiterates “… a self-represented litigant should generally not receive costs unless that would serve one of the policy reasons for which costs awards are made.” The policy reasons that a cost award should promote include indemnifying the winning party for legal costs; encouraging settlement; preventing frivolous litigation, and increasing efficiency during litigation (Hogarth at paras 8-9 ).

Further, awarding costs to a self-represented litigant can actually encourage prolonged litigation due to an anticipated costs award after the action concludes. [ 6 ] The Defendant relies on Edmonton (Police Service) v Alberta (Information and Privacy Commissioner) , 2019 ABQB 864 in which Justice Graesser, citing his decision in LL v GB, 2009 ABQB 322 , outlines the factors considered by a court in Alberta when awarding costs to a self-represented litigant.

Justice Graesser notes that there is no automatic rule entitling a self-represented litigant to costs and a self-represented litigant bears a stronger onus of establishing an entitlement to costs. Specifically, a Court should have regard to the factors set out in Dechant v Stevens , 2001 ABCA 81 at paras 18 - 21 : [18] As this court noted in H. (V.

A) it is difficult to determine the costs payable to unrepresented litigants in relation to

Schedule C. The preferable approach is to view the matter of costs as discretionary. The court should seek an equitable result between the parties while balancing the various policy objectives of costs. Thus, we reject the idea that

Schedule C is the automatic rule and that it simply represents a value for work to which all successful litigants are entitled. [19] That balancing of equities involved in crafting a just costs award is a delicate exercise. When determining an appropriate costs award for a successful unrepresented litigant, courts should consider many factors, including the lost opportunities of the litigant as a result of self-representation. For the sake of expediency, proof of the exact value of that lost opportunity is not required (or we would be into trials about costs).

Nonetheless, whether a person has lost time from work to represent themselves is a relevant factor to consider. If an unrepresented litigant was not otherwise employed, the fee portion of costs attributable to lost opportunity may not exist or, at a minimum, would be significantly less than a person who has suffered a loss of income due to employment absences. [20] We reject the argument that

Schedule C is an assessment of what particular work is worth and thus should apply regardless of whether any cost was in fact incurred. In our view, costs under the Rules are still primarily concerned with reimbursement for costs expended and a partial indemnification for legal fees, having regard to value for work. We recognize, however, that costs may include lost opportunity costs of the unrepresented litigant. That said, unrepresented and represented litigants are not in the same position.

Schedule C does not provide an automatic basis for determining costs for unrepresented litigants and may also frequently not be appropriate for represented litigants. [21] When awarding costs above disbursements for the unrepresented litigant, the court must look at the particular facts of each case. Was the matter complicated? Was the work performed of good quality? Did the self-representation result in unnecessary delays? Did the litigant take up an unreasonable amount of time of opposing parties or the courts? Did the litigant lose time from work?

In general terms, what is the lost opportunity of the unrepresented litigants? What would they have earned if not required to prepare their own case? Did the other side take advantage of the fact that they were facing unrepresented litigants by taking frivolous and unnecessary steps to thwart that litigant? Did the other side refuse to entertain reasonable requests to discuss settlement? What is an appropriate amount for the issues involved?

All of the factors set out in r. 601(1) which are relevant in a particular case should be considered when selecting the appropriate costs award. [ 7 ] Thus, costs are always discretionary, and there is no absolute entitlement to costs set out in

Schedule C. Nonetheless, I find that Mr. Balogun is entitled to costs. The litigation before this Court was undoubtedly extremely long. This length certainly inconvenienced the Defendant, however, it correspondingly had a significant opportunity cost to Mr. Balogun. While Mr. Balogun’s time may not have been spent as efficiently as a lawyer, it was nevertheless spent. Lengthy litigation does not automatically disentitle a self-represented litigant to costs. [ 8 ] While the Defendant argues that Mr. Balogun is “an experienced and sophisticated litigant” having seen him in trial I cannot agree.

He may have been involved in various litigation but he seems to not have learned much on those occasions. Nonetheless, I do not find any evidence to suggest that the litigation was prolonged by Mr. Balogun in anticipation of costs. What I see are years of floundering through the process. There is no doubt Mr. Balogun would have been well served by retaining counsel. [ 9 ] I have corresponding concerns about Mr. Balogun being taken unfair advantage of procedurally. For whatever reason he thought he needed to continuously file “update affidavits”.

The Defendant took advantage of this misconception and appears to have cross examined Mr. Balogun on many of them. This allowed more discovery (questioning) to occur than one would anticipate in an action and those questionings on affidavit were used against Mr. Balogun at trial. This was not an efficient use of resources and the whole cross examination process likely served as reinforcement by Mr. Balogun to continue filing “update” affidavits.

While the Defendant is not expected to assume carriage of the action, the Defendant was under an obligation under the rules not to engage in tactics that obstruct, delay or stall an action.

Such tactics were engaged where the Defendant, rather than insisting the matter proceed to trial, proceeded to cross on the unnecessary affidavits (questioning) for its later use at trial: Deja Vu Holdings Ltd v Securex Master Limited Partnership , 2018 ABQB 597 at para 55 . [ 10 ] Considering Edmonton (Police Service) and Dechant , as well as the fact that awarding costs to a self-represented litigant is in the court’s discretion, I find Mr. Balogun is entitled to costs.

Formal Offer [ 11 ] The Defendant extended five formal offers to the Plaintiff. The Plaintiff was awarded $129,558.08 at trial which also included prejudgment interest. The offer on August 26, 2014 was for $160,000 plus prejudgment interest. The formal offer on August 26, 2014 is better than the award at trial. [ 12 ] The Defendant requested this Court use its discretion and award enhanced costs, noting Mr. Balogun’s allegations of bad faith and insistence that the matter must go to trial for a fair result. Mr.

Balogun maintained these allegations notwithstanding five offers, three of which exceeded the amount won at trial. The Defendant states that Mr.

Balogun refused to engage in any settlement discussions and caused significant delay; it is such conduct that courts should deter. [ 13 ] Lotoski v Lotoski , 2019 ABCA 262 at para 7 citing Decore v Decore , 2016 ABQB 572 at para 16 stated the standard for awarding enhanced costs: “[e]nhanced costs may be awarded where the conduct of a litigant falls short of what is expected of a responsible litigant.” In Kon Construction Ltd v Terranova Developments Ltd , 2014 ABQB 665 at para 19 the Court refused to grant enhanced costs because ordinary costs sufficiently covered the parties.

Considering the conduct of both parties in this litigation, I will not grant enhanced costs. In this case ordinary costs sufficiently indemnifies the Defendant and the policy reasons for costs awards. [ 14 ] However, in the circumstances of this case I find no reason to deviate from the rule 4.29(2) and therefore award costs to the Defendant from the date of the first offer of settlement to exceed the judgment amount – the August 26, 2014 offer. As a result, the Defendant is entitled to costs from August 26, 2014 onward, and Mr. Balogun is conversely disentitled. Appropriate column under

Schedule C for the Plaintiff and Defendant [ 15 ] Section 1(3) of

Schedule C of the Rules of Court governs what the appropriate column for a cost award is: 1(3) Subject to subrule (4), the dollar range indicates the amount recoverable (

a) as against the plaintiff, with reference to the amount claimed by the plaintiff, (

b) as against the defendant, with reference to the amount of the judgment or order against the defendant, or (

c) in the case of an interlocutory application, as against the person liable to pay the costs with reference to the amount claimed by the plaintiff. [ 16 ] As Mr. Balogun was awarded $129,558.08 at trial the appropriate column for his costs award is column 2. He is entitled to fees and disbursements until August 26, 2014 for all steps taken and disbursements paid. I find no reason to award enhanced or different costs to the Defendant for the period after August 26, 2014, therefore the Defendant’s costs will be assessed at column 2.

Summary of Fees and Disbursements Plaintiff’s Fees [ 17 ] The Court may exercise its discretion to award a lump sum for all or a portion of

Schedule C costs. In the interest of bringing this matter to a conclusion and to avoid necessity of taxation, I award fees in the amount of $29,125.00 plus GST in the amount of $1,456.25 for steps taken in the action before August 26, 2014 as set out in Appendix 1. I do want to make a few of my findings clear in coming to this number. [ 18 ] Mr. Balogun claims fees in Appeal Action 0903-0144AC. These costs are related to Balogun v Pandher , 2010 ABCA 40 . The matter involved whether a jury trial should be permitted, and Mr. Balogun lost.

The Defendant notes that the Court of Appeal confirmed costs were to the Defendant in a judgement roll filed Nov 23, 2010. None of these costs are allowable in this action. [ 19 ] Mr. Balogun also claims fees in Appeal Action 0903-0252AC. These costs are related to Balogun v Pandher , 2009 ABCA 409 . At paragraph 27 the Court states that neither party was entitled to costs. None of these costs are allowable in this action. Plaintiff’s Disbursements [ 20 ] Mr. Balogun claimed $115,063.07 in disbursements subject to GST, and $118,872.50 in non-taxable disbursements. Mr.

Balogun claimed the time he spent in this action at $50/hour as a non-taxable disbursement. I find this is not a proper disbursement and he is receiving “fees” as part of his costs to offset his opportunity cost. A

summary of the remaining disbursements is outlined at Appendix 2. I have disallowed claimed disbursements that were claimable as damages and I have disallowed disbursements that have no date on them as I cannot determine when they were expended and I have disallowed disbursements that were incurred after August 26, 2014. Again, I am exercising my discretion, based on the general conclusion noted above, and find that Mr. Balogun is entitled to a total of $31,355.75, which includes disbursements and other charges plus GST, and $200.00 in non-taxable disbursements.

Defendant’s fees [ 21 ] I have already found that the Defendant is not entitled to enhanced costs, and the appropriate column for costs is Column 2. The Defendant’s Costs Submission was calculated under Column 4 and without any enhancement, but nonetheless was helpful in this assessment. [ 22 ] Most of the Defendant’s claimed fees are appropriate. Most claims are for matters that occurred after August 26, 2014, and those

that are before the formal offer are accompanied by an explanation for why the Defendant is entitled to the fee. [ 23 ] One reduction is for Item no 7(1), “contested application at case management June 18 2008.” Both Mr. Balogun and the Defendant claimed this application. Justice Gill reserved costs, and as they were not assessed at the time, I find them in the cause and award them to Mr. Balogun. [ 24 ] I also will not order the payment of second counsel fees. In the end this was a simple damages case. While the process was undoubtedly frustrating at times, it was not difficult.

Having second counsel present was not a necessity and I have no doubt one counsel could have faired equally as well against Mr. Balogun. [ 25 ] Making the adjustments just noted, I find the Defendant is entitled to $62,055 plus GST for fees after August 26, 2014. GST is $3,102.75 on the fees. Defendant’s disbursements [ 26 ] The Defendant claims $50,920.42 in disbursements subject to GST, and $4,951.30 in other charges. Disbursements not subject to GST include a filing fee and two witness fees totaling $250.00. [ 27 ] I am not prepared to allow disbursements for surveillance of Mr. Balogun.

There was no evidence put in at trial related to this disbursement. Thus, disbursements allowed are $41,183.83 for taxable disbursements, other charges of $4,951.30 and non-taxable disbursements of $250. GST on the taxable amount is $2,306.76. Conclusion [ 28 ] Total costs and disbursements and GST for Mr. Balogun for the time before August 26, 2014 are $61,937. The Defendant is entitled to total costs for fees, disbursements and GST of $113,850 for the time after August 26, 2014 and any costs that had been awarded to the Defendant before the date of offer. Heard by way of written representations.

Dated at the City of Edmonton, Alberta this 5 th day of January, 2021. M.E. Burns J.C.Q.B.A. Appearances: Alexander O. Balogun for the Self-Represented Litigant Joe D. Spelliscy Justin Laverty-Harrigan for the Defendant

Appendices Appendix 1 Fees allowed: ITEM NO.

ITEM AMOUNT 1(1) Statement of Claim, affidavits, and related documents $2,025.00 3(1) Affidavit of Records $1000.00 3(2) Review of opposite party documents $1000.00 4 Notice to Admit $540.00 5(1) Preparation for the questioning of the Defendant April 15 2004 $1000.00 5(2) Cross Examination August 12 2003 $1000.00 First half-day of a questioning of the Plaintiff on April 13 2004 $1000.00 First half-day of a questioning of the Defendant April 15 2004 $1000.00 First half-day of a questioning of the Plaintiff May 29 2006 $1000.00 First half-day of a questioning of the Plaintiff November 20 2009 $1000.00 5(3) Additional half-day of a questioning of the Plaintiff on April 13 2004 $1000.00 Additional half-day of a questioning of the Defendant April 15 2004 $1000.00 Additional half-day of a questioning of the Plaintiff May 29 2006 $1000.00 Additional half-day of a questioning of the Plaintiff May 30 2006 $1000.00 Additional half-day of a questioning of the Plaintiff May 30 2006 $1000.00 7(1) Order of Laycock MCQ August 27 2003 $1000.00 Order to provide Undertaking August 14 2007 $1000.00 Contested Application June 18 2008 $1000.00 Order to disclose September 18 2013 $1000.00 Application October 2 2013 $1000.00 Application April 29 2014 $1000.00 9(1) Attendance at Case Management February 26 2004 $540.00 Attendance at Case Management April 27 2004 $540.00 Attendance at Case Management March 5 2008 $540.00 Attendance at Case Management November 19 2008 $540.00 Attendance at Case Management February 24 2009 $540.00 Attendance at Case Management May 20 2009 $540.00 Attendance at Case Management July 27 2009 $540.00 Attendance at Case Management December 8 2010 $540.00 Attendance at Case Management March 21 2011 $540.00 Attendance at Case Management October 26 2011 $540.00 Attendance at Case Management January 23 2012 $540.00 Attendance at Case Management April 12 2012 $540.00 Attendance at Case Management July 23 2012 $540.00 Attendance at Case Management April 19 2013 $540.00 Total $29,125.00 Appendix 2

Taxable Disbursements (subject to GST): DESCRIPTION AMOUNT Sunburn appraisal and video invoice July 30 2003 $2,900.00 Sunburn Invoice November 21 2003 $262.15 Accident Reconstruction Report September 2003 $1,605.00 Dr. Baergen February 2004 $1,445.70 Dr. Baergan March 5 2004 $100.00 Dr. Buck April 13 2004 $110.00 Swanberg Transcript May 10 2004 $715.83 Court Proceeding (Ex Y17) January 16 2006 $88.00 Dr. Adams May 2006 $330.00 Dr. Buck October 31 2006 $900.00 Dr. Baergan $1,345.90 Dr.

Bums (Request of interim report/charts) February 2007 $75.00 Interim Progress Report (Ex Y25) $225.00 Innovation Physiotherapy – interim report with charts February 2007 $278.05 Transcript Management Services February 23 2007 $513.20 MC Orthodontics (Ex Y18) February 23 2007 $110.00 Dr. Buck (Ex Y18) February 23 2007 $690.00 Dr. Balyk (Ex Y18) February 23 2007 $20.00 Dr. Toma $214.00 Riverbend Metacenter $75.00 Dr. Adams (Ex Y66) December 23 2008 $1,100.00 Tim Hall FCE (Ex Y68) December 23 2008 and 2011 $5,790.00 Dr. Buck (Ex Y71) December 23 2008 $180.00 Accident Reconstruction Update October 26 2011 $367.50 Dr.

Adams April 9 2012 $450.00 Rejuvenation $52.50 Rejuvenation $52.50 AHS Medical Chart Reports for Hospitalization $36.75 Dr. Martyn $354.43 Dr. Nikolaii $74.00 Dr. Adams $433.60 Medicenter Riverbend $25.00 Transcript Management Services $13.20 Dr. Adams Nominee for Dr. DiPersio $1,100.00 Dr. Adams Copying of Chart $175.00 Dr.

Adams Expert Report $2,500.00 Parking prorated to August 2014 $2,380.71 Total $27,088.02 Non-taxable Disbursements (not subject to GST): DESCRIPTION AMOUNT Statement of Claim $200.00 Other Charges: DESCRIPTION AMOUNT Photocopying prorated to August 2014 $2,461.22 FedEx Courier to Dallas – November 21 2003 $123.00 Total $2,584.22