Background
In Rebello v. Ontario (Transportation), 2024 ONCA 842 the appellant brought a claim against the Ontario Crown for failing to renew her licence plate and the mistaken transfer of her vehicle’s VIN which invalidated her licence plate. ServiceOntario rectified the error within a month but was subsequently unable to renew the appellant’s licence plate due to unpaid parking tickets and fines.
The appellant issued a statement of claim on June 18, 2018, which was dismissed on March 29, 2019. The dismissal order stated the appellant could issue a new statement of claim prior to the expiration of the limitation period. The appellant did not issue a new statement of claim until December 31, 2021, nineteen months after the dismissal order and more than three and a half years after the initial VIN error.
After a three-day summary trial, the trial judge held the appellant’s claims were statute-barred and she had indeed “discovered” her claim prior to the expiration of the limitation period. The trial judge also ordered costs against the appellant on a substantial indemnity basis in the amount of $100,000.
Held
The Ontario Court of Appeal unanimously dismissed the appeal. Costs for the appeal payable by the appellant were set at $5,000.
Issues
The issues before the Court were as follows:
(1) Did the trial judge err in finding the appellant’s claims statute-barred under the Limitations Act?
(2) Did the trial judge misapply the legal tests for the various causes of action raised in dismissing her claims?
(3) Did the trial judge error in ordering costs in the amount of $100,000?
The Limitations Act
Regarding the appellant’s argument on the limitation issue, the Court confirmed whether “a limitation period applies is a finding of mixed fact and law, which is entitled to deference on appeal, reviewable for palpable and overriding error. Findings of fact and credibility are also reviewable for palpable and overriding error. This is a high degree of deference” (at paragraph 12).
On the discoverability of the appellant’s claim, the Court upheld the trial judge’s finding that the appellant was aware of the existence of her claim when she filed the first statement of claim. The Court held the facts here were distinguishable from cases which turned on whether a “reasonable person” ought to have known as the Court held the appellant did in fact know the facts giving rise to her claim.
As the finding that the appellant’s claim was statute-barred disposed of the appeal, the Court did not address whether the trial judge misapplied the legal tests for the various causes of action raised in the claim. However, the Court did go on to briefly address these submissions stating (at paragraph 20):
Nor do we see any error in the conclusion of the trial judge that even if the claims were not statute barred, the appellant herself is the cause of any damages she may have suffered. We agree with the conclusion that “but for” her failure to pay her parking tickets and fines, she would have had her licence plate validated and reassociated with her vehicle.
Costs
On the issue of costs, the appellant’s submissions focused on her standing as a self-represented litigant compared to Crown counsel as salaried employees. The appellant further submitted “the Crown had failed to prove its docket entries, and that it was the Crown’s conduct that necessitated a trial, not hers” (at paragraph 21).
The Court rejected both submissions in upholding the costs award. The Court held that self-represented litigants are not immune from costs and that section 131(2) of the Courts of Justice Act expressly prohibits disallowing or reducing costs where the Crown is a party.
On whether there was a basis to intervene, the Court held that “the determination of costs is discretionary, and this court will not intervene unless there is an error in principle or the costs award is plainly wrong” (at paragraph 22). The Court outlined several reasons for declining to vary the costs award in the appellant’s favour (at paragraphs 23-25):
- The respondent was successful at trial and the appellant failed to accept a “reasonable” Rule 49 offer to settle [payment of her parking fines and costs in her favour on a partial indemnity basis].
- The appellant’s conduct unnecessarily lengthened the proceeding and “the appellant litigated in an obstructive manner based on… ‘patently false arguments’”.
- The appellant was “an experienced litigant” and therefore understood that “frivolous litigation could lead to a substantial costs award”.
Conclusion
While the Court may provide more latitude to a self-represented litigant than counsel on procedural matters, Rebello v. Ontario (Transportation) confirms that significant costs awards against self-represented litigants can withstand appellate intervention. Rebello v. Ontario (Transportation) further highlights the strategic importance of a well-crafted Rule 49 offer to settle, especially when dealing with (particularly vexatious) self-represented litigants.
