) ) DAVID EDELSTEIN ) David Edelstein, acting in person ) ) Appellant (Plaintiff) ) ) – v. –, 2017 ONSC 7446

CITATION : Edelstein v.

Monteleone, 2017 ONSC 7446 DIVISIONAL COURT FILE NO.: 420/17 DATE: 2017/12/12 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: ) ) DAVID EDELSTEIN ) David Edelstein, acting in person ) ) Appellant (Plaintiff) ) ) – and – ) ) ANTONIO MONTELEONE Sr., DOMENIC MONTELEONE, AGOSTINO (Gus) MONTELEONE and ANTONIO (Tony) MONTELEONE ) ) ) ) Salvatore Mannella , for the Respondents ) Respondents (Defendants) ) ) ) HEARD at Toronto: December 12, 2017 SACHS J. ( Orally ) [ 1 ] This is a motion for leave to appeal the costs decision of Cavanagh J. wherein he awarded the Plaintiff/Moving Party a total of $12,394.58 by way of costs.

The Plaintiff, who was self-represented, had requested an amount representing his time spent on the litigation in the sum of $78,775.00. The trial judge found that he was bound by the decisions in Fong v. Chan (1999), 1999 CanLII 2052 (ON CA) , 46 O.R. (3d) 330 (C.A.) as interpreted by the Divisional Court in Mustang Investigations Inc. v. Ironside , 2010 ONSC 3444 (Div.

Ct.) both of which stand for the principle that a self-represented lay litigant is only entitled to costs if they have demonstrated that as a result of the time and effort they expended on the litigation, they lost the opportunity to pursue renumerative activity.

The trial judge found that since the Plaintiff had not provided any evidence to support “a claim for lost opportunity costs” he was unable to award any costs to the Plaintiff “in respect of his time devoted to the litigation”. [ 2 ] The Plaintiff seeks to appeal the trial judge’s decision on the basis that he failed to exercise his discretion in accordance with the factors that guide the award of costs as set out in the Rules of Civil Procedure . Instead of referring to these factors, the trial judge simply relied on a reason given for denying costs in two individual cases.

Since each case turns on its own facts, the trial judge erred in limiting his discretion in the way that he did. According to the Plaintiff, to adopt the approach taken by the trial judge would be to encourage defendants to take unreasonable positions in respect of worthy claims. [ 3 ] While neither party raised the issue of jurisdiction, I did raise it at the outset of the hearing. I am satisfied on the basis of the reasoning in Eustace v.

Eustace , 2017 ONSC 4814 that the Divisional Court is the appropriate jurisdiction to bring this appeal. [ 4 ] With respect to the merits of the motion for leave to appeal, what the Plaintiff’s argument fails to appreciate is that while each decision turns on its own facts, in common law jurisdictions principles get developed that govern how the law applies through individual case law. If a higher court articulates a principle that is to guide the exercise of discretion, lower courts are bound by that decision.

As such, they must exercise their discretion in accordance with the principles articulated by the higher court. [ 5 ] In Fong , the Ontario Court of Appeal examined the question of what principles should govern the award of costs to self- represented lay litigants.

They then decided that such “costs should only awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation and that, as a result they incurred an opportunity cost by forgoing renumerative activity.” This principle is clearly articulated in Fong and I was pointed to no authority from the Court of Appeal or higher that has changed it. Thus, until the Court of Appeal or the legislature decides differently, trial courts are bound by the principle articulated in Fong . This is what the trial judge in this case found.

In doing so, he committed no error. In fact, as the Divisional Court decided in Mustang , if he had done otherwise, this would have been an appealable error. [ 6 ] For these reasons, the motion for leave to appeal is dismissed. [ 7 ] I have endorsed the Factum of the Appellant as follows: “For reasons given orally the motion for leave to appeal is dismissed. As the successful party, the Defendants are entitled to their costs of the motion, which I fix in the amount of $2,500.00, all inclusive. This motion was a simple and straight forward one. These costs shall be deducted from the costs payable to Plaintiff.”

___________________________ sachs J. Date of Reasons for Judgment: December 12, 2017 Date of Release: December 14, 2017 CITATION : Edelstein v. Monteleone, 2017 ONSC 7446 DIVISIONAL COURT FILE NO.: 420/17 DATE: 2017/12/12 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: DAVID EDELSTEIN Appellant (Plaintiff) – and – ANTONIO MONTELEONE Sr., DOMENIC MONTELEONE, AGOSTINO (Gus) MONTELEONE and ANTONIO (Tony) MONTELEONE Respondents (Defendants) ORAL REASONS FOR JUDGMENT SACHS J . Date of Reasons for Judgment: December 12, 2017 Date of Release: December 14, 2017