COURT FILE NO.: 146/06
DATE: 20070124
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: Tan Xiuzhen (Applicant/Respondent) and Wu Zhizhong (Respondent/Appellant)
BEFORE: Justice Cumming
COUNSEL: Roger J. Shaw, for the Applicant/Respondent
Edward F. Hung, for the Respondent/Appellant
DATE HEARD: January 23, 2007
E N D O R S E M E N T
The motion for leave to appeal
[1] The Applicant/ Respondent Ms. Tan served the Respondent Appellant Mr. Wu with her Requests to Admit, in preparation for a trial as to the validity of a divorce judgment ie. whether proper service of the Petition for Divorce had been effected upon Mr. Wu. Counsel for Mr. Wu, being Mr. Edward F. Hung, failed to respond in a timely manner in accordance with the Rules. Hence, there were deemed admissions. A week before the trial Mr. Hung advised opposing counsel, Mr. Lorne Fine, he would seek to have the deemed admissions nullified.
[2] On the date of the trial, March 14, 2006, Madam Justice Greer refused to allow Mr. Wu to withdraw his deemed admissions without an adjournment on the basis that an adjournment was necessitated if those admissions fell away. She then granted leave to Mr. Wu to withdraw his deemed admissions, adjourned the trial and after submissions, awarded wasted costs against Mr. Wu and/or Mr. Hung.
[3] Mr. Wu’s counsel paid the costs but stopped payment on the cheque and brought his motion for leave to appeal. The costs were later paid by order of Madam Justice Horkins July 20, 2006, in the context of the sale by Ms. Tan of her residence, the costs being paid by Mr. Hung.
Disposition
[4] Costs, as a general rule, follow the event, and a successful party is entitled to costs.
[5] Ms. Tan’s counsel claimed costs thrown away, against both Mr. Wu and his counsel personally. Mr. Wu’s counsel in effect readily admitted that any adjournment of the trial was necessitated by his own inadvertence. Mr. Hung was given a full opportunity to make submissions. Greer J. ordered that costs be payable by Mr. Wu or Mr. Hung “as they agree”.
[6] Ms. Tan’s counsel asked for costs of $31,000.00, including handwriting expert fees of $4,400.00. A detailed bill of costs was submitted. Greer J. awarded costs of $14,600.00 plus GST plus costs of the expert of $4000.00 plus GST, for a total of $18,600.00 plus GST.
[7] Mr. Wu’s counsel says on this motion for leave to appeal that the costs awarded were awarded on an erroneous basis, and were excessive in quantum. It is apparent from his factum on this motion for leave that all of his present submissions, save one, were made before, and considered by, Madam Justice Greer. (See Transcript of hearing pages 98 to 149).
[8] The one submission that originates at this point is that Mr. Hung was not given notice by Madam Justice Greer that she was considering awarding costs against him personally. He says that it is a prerequisite to a finding of costs against a solicitor that the judge herself gives notice of the possibility. I disagree.
[9] Rule 24 (9) of the Family Law Rules says that an award of costs can be made after giving “the lawyer or agent an opportunity to be heard.” (Rule 57.01 (2) of the Civil Rules of Procedure states that a costs order cannot be given “unless the solicitor is given a reasonable opportunity to make representations to the court”). While the opportunity to be heard clearly and necessarily implies that there must be notice in advance to the solicitor of the possibility of an adverse award of costs against him/her personally, it does not say that the judge herself/himself must give notice. In my view, it is suffice if in all the circumstances it can be said on an objective test the solicitor must have known that costs could be awarded against him/her personally and that this was a live issue. This is the situation at hand. It is clear that Mr. Hung had notice of the real possibility of an adverse costs award against him personally before making submissions.
[10] Mr. Hung candidly and forthrightly admitted that it was his own inadvertence to the time requirements in responding to the Requests to Admit that necessitated the adjournment once Madam Justice decided that an adjournment was required. He was aware that Mr. Fine was seeking wasted costs against him personally. Mr. Hung was alive to the possibility that costs would be found against him personally. He made extensive submissions as to costs but did not suggest that if costs were awarded against his client that they should not be awarded against him personally. Madam Justice Greer gave Mr. Hung a full opportunity to be heard on the question of costs and if they were awarded, whether they might be awarded against him personally.
[11] Second, Mr. Wu submits that no costs should have been awarded by Madam Justice Greer in all events.
[12] There are two main issues underlying the dispute between the parties. First, there is a disagreement as to when the date of separation took place. Ms. Tan says 1998; Mr. Wu says 2005. This apparently may impact upon the issue as to whether or not a residence sold by Ms. Tan in the interim period was or was not a matrimonial home. Second, Mr. Wu disputes that he was ever served with the divorce petition in China.
[13] Mr. Hung argues that Ms. Tan’s counsel should have realized, given letters from Mr. Hung and affidavit evidence in the record, that Mr. Wu was not admitting the matters raised for admission through the Requests to Admit, so that there was no real prejudice to the lack of a response in a timely manner to the Requests to Admit. As well, Mr. Hung says that Mr. Fine was aware that Mr. Wu admitted (notwithstanding the formal refusal to admit in the late response to the Request to Admit of February 1, 2006) the general truth to the two points raised in that Request to Admit, namely:
You are requested to admit, only for the purposes of this case, that the following facts are true:
An Advice of Receipt provides proof of delivery (including the date and signature of the addressee) in hard copy. The Advice of Receipt can be purchased at the time of mailing only and is attached to the item and returned to the sender by the destination post administration (see print out from “Canada Postal Guide – January 16, 2006 – Section D-Chapter 10 – Page 3 attached).
The Rules for receipt of registered mail in China is contained at tab 28 of the Affidavit of Documents of the Applicant.
[14] Mr. Hung submits that the only real underlying point of contention was whether Mr. Wu was in fact personally served under this generally applicable regime for the service of documents in China. Mr. Hung made these arguments extensively as to the background relating to the Requests to Admit before Madam Justice Greer. He submitted that there was no real prejudice to Ms. Tan in ignoring the late delivery of the Responses to admit and allowing Mr. Wu to resile from the deemed admissions and proceeding with the trial. Madam Justice Greer considered these submissions and ultimately did not accept Mr. Hung’s arguments on behalf of Mr. Wu.
[15] Third, Mr. Hung then argued before Madam Justice Greer that the costs sought were excessive and they should only be $5,000.00 at most, with no costs allowed in respect of the expert witness of Ms. Tan. (The expert had flown from Ottawa to Toronto to attend the trial.)
[16] Costs are in the discretion of the trial judge. Madam Justice Greer exercised her discretion after a full opportunity was afforded to Mr. Wu and his counsel, Mr. Hung, to make submissions, including on the issue as to whether Mr. Wu’s counsel could be held responsible.
[17] I do not find any grounds to suggest that Madam Justice Greer erred in the exercise of her discretion in her award of costs.
[18] There is common ground that the principles articulated in Children’s Aid Society of the Niagra Region v. D. (R.), (2005), 2005 11187 (ON SCDC), O.J. No. 1373 (Ont. Div. Ct.) at pp. 3-4 apply. Giving application to those principles, I do not find that Madam Justice Greer’s discretion was not exercised on the facts of the case. Nor do I find that her discretion was exercised on facts wholly unconnected with the cause of action and issues before her. Nor do I find that her decision proceeded on some erroneous principle.
[19] For the reasons given, I dismiss the requested leave to appeal.
[20] Submissions were made as to costs. Costs should properly follow the event. Ms. Tan is successful in responding to this motion for leave. I award costs payable to the Respondent/Applicant, Ms. Tan, in the amount of $4,020.00, inclusive of disbursements, plus GST, payable forthwith.
CUMMING J.
DATE: January 24, 2007