NEWMARKET COURT FILE NO.: DC-07-00082496-00
DATE: 20080513
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R.W. v. Y[…] School Board et al
BEFORE: THE HON. MR. JUSTICE G.P. DiTOMASO
COUNSEL: R. Keel, for the Respondents (Moving Party – […] School Board and J.C.) R.W., Applicant, self-represented
C O S T S E N D O R S E M E N T
[1] The Respondents (the moving party) were successful in respect of his motion to vary my consent order dated August 21, 2007. My reasons for decision in this regard were delivered on April 29, 2008. The parties agreed that costs would be determined by way of written submissions.
[2] I have received written submissions from Mr. R.W. and counsel for the moving party. My reasons in respect of the disposition of costs are as follows.
[3] It is Mr. R.W.’s position that no costs should be awarded on this motion and, in the alternative, costs should be left to the final determination of this matter by a Divisional Court panel. It was Mr. R.W.’s position that counsel for the moving party was entirely responsible for unnecessary court attendances. He blames that counsel for abuse of process and “legal zigzagging” which led to the unnecessary complications and subsequently, the motion to vary.
[4] Mr. R.W. was of the view that he should be compensated for his wasted time and effort required to prepare for two court appearances. Such compensation should be granted in the amount equal to twice the legal fees that counsel for the moving party incurred up to the motion.
[5] The position of the moving party is that the motion to vary was completely unnecessary. Mr. R.W. was given every opportunity to consent to the variation of the consent order dated August 21, 2007 but refused to co-operate. It was Mr. R.W. who created the problem in the first place and insisted that a motion to vary be brought even though the moving party was agreeable to a variation. The moving party seeks costs in the amount of $15,241.14.
[6] I find that the Respondents (moving party) were successful in respect of the motion to vary. As I found in my reasons of April 29, 2008, Mr. R.W. did not have the authority to deal with educational issues relating to his son J.. On August 21, 2007, J. was the subject of a voluntary Temporary Care Agreement with the Jewish Family and Child Services and that organization was authorized to make educational decisions for J..
[7] Nevertheless, Mr. R.W. and the moving parties entered into Minutes of Settlement which formed the basis of a consent order which I granted on August 21, 2007.
[8] After the attendance of August 21, 2007, new facts came to the attention of the Respondents. Those new facts related to J.’s involvement with the JFCS. JFCS’ position was that J. would not be attending a school of the Board and Mr. R.W. did not have authority to enter into Minutes of Settlement with the Board as they related to J.’s school attendance.
[9] The Respondents immediately advised Mr. R.W. that the order needed to be varied. It was clear that various provisions of the order could not be complied with by the Board (paragraphs 2, 3 and 5 of the order) given the information which the Board had received from JFCS.
[10] Mr. R.W. was given every opportunity to agree to a variation on consent.
[11] Notwithstanding, Mr. R.W. made an Appointment to settle the terms of the order. Again, the Respondents raised concerns with respect to his authority and the change in circumstances. Nevertheless, Mr. R.W. proceeded with the Appointment.
[12] As a result, it was necessary to attend before me on February 28, 2008 by way of Appointment. At that time, Mr. R.W. was given a further opportunity to agree to the variation and was not willing to do so. Instead, he insisted that in accordance with the Rules of Civil Procedure the Respondents proceed by way of motion to vary.
[13] Further, given concerns expressed by Mr. R.W. relating to evidence by hearsay, the Respondents found it necessary to proceed with an examination of a witness on behalf of the JFCS (Cilla Archa, social worker).
[14] I flatly reject Mr. R.W.’s position. It was not the Respondents’ counsel who was responsible for causing unnecessary court attendances including a fully argued motion to vary. Rather, that responsibility rests with Mr. R.W. himself. His lack of authority to make educational decisions for J. as at August 21, 2007 was the root of the problem. He entered into Minutes of Settlement which contemplated certain events that would have taken place regarding J.’s educational status when the JFCS had the authority to make educational decisions for J.. The result was that the events contemplated in the consent order (paragraphs 2, 3 and 5) could not take place. As soon as the Respondents discovered the new facts from the JFCS, Mr. R.W. was immediately contacted with the request for a variation. He refused throughout and insisted on pursuing a course of action to have the consent order issued and entered with a view to bringing contempt proceedings against the Respondents. This very prospect was raised before me and I specifically addressed Mr. R.W. about not contemplating any such proceedings while the Respondents’ motion to vary was extant before the court.
[15] Ultimately, Mr. R.W. compelled the Respondents to bring a motion to vary regarding which the Respondents were entirely successful. Accordingly, the Respondents are entitled to their costs.
[16] The second issue to be determined is that of quantum. The Respondents seek costs in the amount of $15,241.14. That amount is broken out as follows: Fees: $14,723.10, Disbursements: $518.04.
[17] While I do not doubt that counsel for the Respondents worked the hours that they worked at the hourly rates that they charged in respect of this matter, at the end of the day we are dealing with the settling of a consent order. In determining quantum in all of the circumstances of this case, the overarching principles of fairness and reasonableness apply. I am guided by the principles of the Court of Appeal in fixing an amount of costs that is fair and reasonable for the unsuccessful party to pay rather than an amount fixed by the actual costs incurred by the successful party. The fixing of costs is not a mathematical computation. The costs awarded should reflect more what the court views as fair and reasonable for the unsuccessful party to pay rather than any exact measure of the actual costs to the successful litigant.[^1]
[18] I have considered the amount claimed by the Respondents. In respect of the complexity of the proceeding, in itself, the variation of a consent order in the scheme of things is not necessarily complex. However, the matter became more complicated because of Mr. R.W.’s refusal to consent to entirely reasonable amendments or variations to the order.
[19] I acknowledge that the motion to vary was important to the Respondents given the possibility that Mr. R.W. would bring a contempt motion if the order was issued and entered in original form. In its original form, the Respondents could never comply with the order.
[20] I have considered the conduct of Mr. R.W. which has lengthened unnecessarily the duration of the proceedings. Although he was given every opportunity to consent to a variation, he refused to do so. Instead, he compelled the Respondents to bring a formal motion to vary regarding which he was unsuccessful. The motion to vary was unnecessary given the willingness of the Respondents to agree to a variation.
[21] In fact, Mr. R.W.’s unwillingness to co-operate further caused the Respondents to incur the costs of an examination of a witness on behalf of the Jewish Family and Child Services.
[22] I should also note that Mr. R.W.’s materials made disparaging and insulting remarks against counsel for the Respondents – all of which were unwarranted and without foundation. So there is no mistake, this court disapproves and condemns Mr. R.W.’s personal attack on counsel for the Respondents. There is no place for this kind of incivility in our courts and it will not be excused simply because a party is self-represented.
[23] Accordingly, in all the circumstances, I have determined that the fair and reasonable costs shall be fixed in the amount of $7,500 payable by Mr. R.W. to the Respondents within 30 days of this order.
DiTOMASO J.
DATE: May 13, 2008
[^1]: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291(C.A.); Moon v. Sher (2004), 246 D.L.R. (4th) 440 (C.A.); Zesta Engineering Ltd. v. Cloutier (2002), 164 O.A.C. 234 (C.A.)