COURT FILE NO.: 1192/02

DATE: 20050929

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, MATLOW AND SWINTON JJ.

B E T W E E N:

KATHERINE MUNRO

Applicant

• and -

JOHN MUNRO

Respondent

S.E. Healey for the Applicant, W.J. Leslie, Q.C.

No one contra

HEARD at Newmarket: March 10, 2005

O’DRISCOLL J.:

1Katherine Munro, through her counsel, William Leslie, Q.C., brought a motion, dated June 14, 2004, returnable at Barrie, Ontario on July 7, 2004. The motion sought an order that John Munro, represented by Patrick Schmidt, give answers to undertakings and refusals given by John Munro during his questioning on May 7, 2004.

2In his letter of June 15, 2004 to Mr. Leslie, Mr. Schmidt suggested the need for expert evidence by way of affidavit to establish the relevance of the questions which Mr. Munro had refused to answer.

3On July 5, 2004, two (2) days before the scheduled motion, Mr. Leslie served an affidavit, sworn by an expert, setting out the expert’s opinion as to the relevance of the questions which Mr. Munro refused to answer.

4Rule 14(11) of the Family Law Rules provides:

“the party making a motion with notice shall

(a) serve the document…on all the parties, not later than four days before the motion date.”

5Upon receipt of this new affidavit, Mr. Schmidt sought Mr. Leslie’s indulgence, agreement or consent to an adjournment of the July 7, 2004, motion so that Mr. Schmidt could obtain and file responding evidence by way of affidavit.

6Mr. Leslie refused to consent to such an adjournment.

7When the motion came on before Weekes J. on July 7, 2004, Mr. Schmidt requested an adjournment. The adjournment was granted until August 7, 2004, and submissions regarding costs ensued. During his submissions that costs for the day should be fixed at $1,000.00, Mr. Schmidt said:

In my submission, my request for an adjournment was quite reasonable, under the circumstances, particularly in light of the fact that Mr. Leslie is in breach of Rule 20, Rule 14 in terms of when he’s to serve his materials, and to have caused my client to incur the expense for me to come this morning before Your Honour to argue the adjournment is completely unwarranted.

I’m asking for full indemnity costs for this morning’s attendance and the position I would not normally take is in relation to who should pay those costs. I doubt that the applicant, Mrs. Munro, would understand the niceties of when materials are to be served, when they’re not, whether a motion would or would not take two hours. It is, in my submission, this situation that’s been created is, in my submission, purely lawyer created and lawyer driven. If Your Honour were to be of the view that Mrs. Munro ought not to be saddled with the costs of this morning, then we’re requesting that they be paid by Mr. Leslie personally. The difficulty with cost orders on this type of matters, rather than the disposition of the substantive motion, is that costs ordered to be paid by a party inflame rather than quell the problems in the case. In my submission, the responsibility for this morning’s situation is not fairly visited on Mrs. Munro.

At page 33 of the transcript of that day, the following appears:

THE COURT: Sorry, just before I hear from you, Mr. Schmidt. I just wanted to ask Mr. Leslie, Mr. Schmidt has asked for full indemnity costs today and he has suggested I ought to order them against you. Do you want to make submissions in that regard?

MR. LESLIE: Can I argue on the issue of he’s asked for them against me personally or do I have to retain somebody to argue that?

THE COURT: Well, first of all, what do you say about his request for full indemnity?

MR. LESLIE: Well, he indicated to me yesterday that he had nothing to do today so he was looking forward to his trip to Barrie to argue this. I can only say, Your Honour, that I’m trying to move the file along and I can only say that there has been a considerable delay and I would ask that the, you can make submissions or make an endorsement and perhaps reserve it to the motions judge in August that’s going to hear this matter as to the strength or weakness of the claim for answers to refusals and relevancies.

THE COURT: Well, I’m going to make an order with respect to costs today.”

8At page 37 of the transcript, the following appears:

“THE COURT: Well, the authority is there, Mr. Leslie. Perhaps you can, just is there anything else you want to say [sic] me before I make a ruling?

MR. LESLIE: No, I can’t say more, Your Honour. I have to say in fairness on the amount of a thousand dollars, given Mr. Schmidt’s experience at the bar, that that’s not an unreasonable amount. I would argue strongly thought [sic] that it not be against me personally and for the reasons I have already advised that there has, in my view, been an unnecessary difficulty in obtaining information and it’s part of the process trying to get it.

THE COURT: I am going to take ten minutes to do my endorsement.

Then, at page 38, Weekes J. said:

THE COURT: All right. All right, my endorsement is as follows:

Contrary to the rules, Mr. Leslie served a fresh affidavit on Mr. Schmidt two days ago. He then refused Mr. Schmidt a one-week adjournment, which was requested so that Mr. Schmidt could deliver a responding affidavit. That was a totally unreasonable position for Mr. Leslie to have taken…The costs are occasioned by Mr. Leslie taking a totally unreasonable position on the issue of the adjournment.

Order as follows:…

4. Requiring Mr. Leslie personally to pay costs to Mr. Munro of one thousand dollars within 30 days.

5. Directing that Mr. Leslie not charge Ms. Munro for his attendance at court today.

9In the result, Weekes J. fixed costs at $1,000.00 and, utilizing rule 14(11) and rule 24(9)(a) of the Family Law Rules, ordered Mr. Leslie to pay those costs personally within thirty (30) days. Weekes J., pursuant to Mr. Leslie’s undertaking, ordered that Mr. Leslie not charge his client for his July 7, 2004, attendance.

10On September 8, 2004, Stong J. granted leave to appeal to the Divisional Court under s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 and rule 62.02 (4)(a) and (b) of the Rules of Civil Procedure. Stong J.’s endorsement concludes:

“Therefore, leave to appeal this order is allowed on the narrow ground requiring direction as to the applicable standard of conduct when exercising discretion whether to assess costs personally against a solicitor”.

11On February 28, 2005, some eleven (11) days before this appeal came on for hearing at Newmarket, Ms. S.E. Healey wrote a letter to the trial coordinator of the Divisional Court at Newmarket, Ontario stating:

“I understand from Mr. Schmidt, solicitor for Mr. Munro, that you contacted his office last week to make inquiries with respect to a respondent’s factum.

To clarify:

(i) I will be the only counsel appearing at this hearing;

(ii) The only person affected by the appeal is Mr. Leslie, the appellant. The respondent, John Munro, has no interest in the outcome of the appeal;

(iii) The issue of costs of the appeal has been settled, and the costs ordered by Mr. Justice Weekes in the order under appeal have been paid;

(iv) Mrs. Munro, Mr. Leslie’s client, is not affected by nor will she be participating in the appeal;

(v) The sole reason for proceeding with the appeal is to obtain a ruling from the court on the question of whether the order appealed from contains an error of fact or law. As such, it is purely an academic appeal.

If you or any judge on the panel has concerns raised by the content of this letter, please do not hesitate to contact me.”

CONCLUSION

12The February 28, 2005 letter states:

“The issue of costs of the appeal has been settled, and the costs ordered by Mr. Justice Weekes in the order under appeal have been paid;

The sole reason for proceeding with the appeal is to obtain a ruling from the court on the question of whether the order appealed from contains an error of fact or law. As such, it is purely an academic appeal.”

13The costs have been paid. The whole matter is moot. True, there are occasions when a court, in the public interest, will hear and decide an appeal notwithstanding that the issue is moot. This case involves private litigation and a costs disposition on an interlocutory order. Mr. Leslie chose to pay those costs notwithstanding that this appeal, his appeal was pending. In my view, no reason has been shown why the court should entertain this purely academic appeal.

14The appeal is dismissed. No costs.

O’DRISCOLL J.

MATLOW J.

SWINTON J.

Released: September 29, 2005

COURT FILE NO.: 1192/02

DATE: 20050929

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT