Inappropriate Behaviour by Litigants Can Have Adverse Cost Consequences

April 23, 2025

By Shane Marston

In Affleck v. Sunrise Senior Living, Inc., 2025 ONCA 267, the Court of Appeal dismissed the self-represented plaintiff’s appeal from the trial Judge’s merits and costs decision.

At trial, with reasons reported in Affleck v. Sunrise Senior Living, Inc., 2023 ONSC 1405, Justice J.T. Akbarali dismissed the plaintiff’s claims in defamation and negligent infliction of nervous shock. Justice Akbarali also assessed an adverse cost award of $330,000 against the plaintiff, emphasising principles of indemnity and sanctioning inappropriate behaviour in determining the quantum. The Court of Appeal dismissed the appeal on its merits, and concluded that there was no basis to interfere with the costs awarded at trial.

Background:

The plaintiff commenced an action in 2008 against her mother’s retirement residence and two of its employees. The plaintiff alleged that the retirement residence had impeded her ability to see her mother and had made defamatory statements about her, causing her trauma, stress, and other injuries. She sought $10,000,000 in compensatory damages, $800,000 in aggravated damages, and $4,000,000 in punitive damages.

Procedurally, the plaintiff was represented by a lawyer until 2011, at which point she filed a Notice of Intention to Act in Person. She represented herself throughout the trial and on appeal. In the trial decision, Justice Akbarali set out in detail numerous procedural delays that led to the action not reaching trial for 15 years, including:

  • 50 endorsements over the life of the action were contained in the compendium of court orders and endorsements at trial;
  • Six adjournments, after the action was first scheduled to go to trial in October 2019. The plaintiff’s request for further adjournment was denied on January 23, 2023;
  • The numerous adjournments were, in part, a result of the plaintiff’s failure to comply with various trial management orders; and
  • The parties were unable to agree on a joint book of documents, chronology of undisputed facts, and provided no indication of facts in dispute in advance of trial.

The trial was heard over the course of five days in February 2023. Justice Akbarali noted at paragraph 13 of his decision that, “despite the tremendous investment of court resources in the management of this litigation, the trial did not go smoothly”. Justice Akbarali devoted two-pages of his decision to the many problems that plagued the trial, along with the efforts of the court and defence counsel to assist and accommodate the plaintiff. These efforts included:

  • Allowing the plaintiff to give her evidence in chief orally, after concluding that her trial affidavit contained inappropriate and inadmissible evidence;
  • Having defence counsel share their screen to put up documents that the plaintiff sought to put to witnesses, because she was unable to do so herself;
  • Having defence counsel loan the plaintiff her personal cell phone and laptop so she could participate on Zoom and put documents to witnesses;
  • Having court staff assist the plaintiff in moving her books and paper around the court room and updating her computer;
  • Having defence counsel upload the plaintiff’s documents on to Caselines and navigating those documents on the plaintiff’s behalf; 
  • Explaining the trial process at length multiple times to the plaintiff; and
  • Having the Court regularly sit late, taking abbreviated breaks to extend the trial day beyond its usual length, despite the plaintiff regularly arriving late in the morning and after breaks.

Justice Akbarali indicated that the plaintiff was disorganized, argumentative, and routinely interrupted and disrupted the trial process.[1]

On the evidence, Justice Akbarali dismissed the plaintiff’s claim for negligent infliction of nervous shock, finding that the Sunrise defendants did not breach the standard of care. Justice Akbarali similarly dismissed the plaintiff’s claim for defamation, finding that any negative impact on her reputation was the result of her conduct and subject to the defence that the statements made were substantially true.[2]

Cost Considerations

Having dismissed the plaintiff’s claims, Justice Akbarali addressed the issue of costs in the proceeding.

Justice Akbarali reiterated that the three main purposes of modern costs rules are to indemnify successful litigants for the costs of litigation, to encourage settlement, and to discourage and sanction inappropriate behaviour by litigants.[3]

Justice Akbarali concluded that because the defendants were wholly successful, they were presumptively entitled to their costs. He referenced the court’s discretion under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as guided by the factors enumerated in r. 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Justice Akbarali also factored in the defendants rule 49 offer to dismiss the claim without costs, made on August 22, 2019, entitling them to substantial indemnity costs after that date.

Justice Akbarali enumerated the specific factors considered in determining the quantum of costs in the proceedings, stating them as follows:

  1. The plaintiff’s unreasonable conduct has lengthened and delayed these proceedings;
  2. The plaintiff’s unreasonable conduct has caused the defendants to incur significantly increased costs in these proceedings;
  3. The plaintiff’s lack of preparation for trial led to defence counsel taking on a significant role in preparing documents and assisting her to try to maximize the use of trial time and keep the trial on schedule. I am grateful for their efforts. But it is not the Sunrise defendants’ obligation to pay for the work the plaintiff should have done for herself;
  4. The plaintiff received a copy of the Sunrise defendants’ bill of costs before the trial and chose to proceed with the trial rather than accept their offer. She was aware of the costs that had been incurred;
  5. The defendants advise that the plaintiff was told by several judges that her proceeding lacked merit, but she chose to continue to pursue it;
  6. The costs of previous counsel is included as a disbursement but it ought to be recoverable on a partial indemnity basis only, as it reflects costs incurred prior to the offer to settle was made.[4]

In light of these factors, Justice Akbarali ordered the plaintiff to pay costs of $330,000, all inclusive, to the defendants within 30 days. The Ontario Court of Appeal found no basis to interfere with the cost award at trial and denied leave to appeal.[5]

Takeaway:

As this decision illustrates: litigants, self-represented or otherwise, should be mindful in maintaining a respectful and professional demeanor throughout the course of litigation and trial proceedings. Unreasonable conduct, in the form of extensive delays, poor preparation and an aversion to reasonable settlement discussions, may result in the court assessing a significant adverse cost award at trial, which will be difficult to overturn on appeal.

[1] Affleck v. Sunrise Senior Living, Inc., et al., 2023 ONSC 1405 (CanLII), at para 15.

[2] Ibid, at paras 78 and 88.

[3] Ibid, at para 91.

[4] Ibid, at para 96.

[5] Affleck v. Sunrise Senior Living, Inc., 2025 ONCA 267 (CanLII), at para 7.