Court File and Parties

CITATION: Giffin Koerth Inc. v. Waye, 2015 ONSC 7298

DIVISIONAL COURT FILE NO.: 62/15

DATE: 20151223

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Giffin Koerth Inc., Plaintiff/Appellant

AND:

Cynthia Waye, Christopher Cook and Ashley Waye, Defendants/Respondents in Appeal

BEFORE: Mr. Justice H.J. Wilton-Siegel

COUNSEL: Ryan R. Watkins, for the Plaintiff/Appellant

Michael H. Tweyman, for the Defendants/Respondents in Appeal

HEARD at Toronto: October 17, 2015

ENDORSEMENT

[1] The appellant, Giffin Koerth Inc., appeals a judgment of Deputy Judge Martial dated January 9, 2015 in the Toronto Small Claims Court (the "Judgment"). The appellant brought a claim for professional services based on four outstanding invoices totalling $27,028.22, which was reduced to $25,000 for jurisdictional purposes. The Deputy Judge dismissed the claim and awarded costs in favour of each of the respondents, Cynthia Waye (“Cynthia”), Christopher Cook (“Christopher”) and Ashley Waye (“Ashley”) (collectively, the “respondents”), in different amounts.

Background

[2] Ashley and Christopher were the owners of a cottage located near Port Carling, Ontario (the “Cottage”) in their capacity as trustees of the Cook Family Trust (the “Trust”). On May 8, 2008, a retaining wall in front of the Cottage collapsed. The collapse exposed the Cottage foundation, as a result of which it was discovered that the Cottage, which was located on the edge of a cliff, was not attached to the bedrock.

[3] Cynthia was living in the Cottage at the time. She engaged an engineering firm to stabilize the Cottage. The engineering firm advised that, in its view, the inspector for the Township of Muskoka Lakes (the “Town”) had been negligent in approving the construction of the retaining wall and Cottage foundation.

[4] The respondents wished to determine whether they had a legal claim against the Town and/or their property insurer. For this purpose, they required a report as to the cause and effect of the collapse of the retaining wall. Cynthia obtained two quotations from engineering consulting firms. She decided to engage the appellant after receiving quotations from the appellant and one other firm.

[5] The appellant’s quotation was $8,000-$10,000. On August 11, 2009, Richard Stahl, an employee of the appellant (“Stahl”), visited the Cottage. Shortly after the visit, the respondents provided the appellant with an initial retainer of $5,000.

[6] As the parties developed a fuller knowledge of the situation, it became clear that the report should also extend to an examination of the stability of the garage retaining wall. The same contractor had apparently built both the Cottage retaining wall and the garage retaining wall. In addition, the respondents wanted the report to extend to an examination of the piles upon which a boathouse was built below the cliff. According to Cynthia, the reason was that, to the extent these piles suffered damage as a result of the rock fall associated with the collapse of the retaining wall, the same limitation period would apply to any claim for damage to the boathouse piles.

[7] As Stahl came to understand the issues more clearly, and for other reasons, the scope of the report expanded, its delivery was delayed, and the amount charged by the appellant increased significantly over the original expectations of the respondents. On October 31, 2009, Stahl advised by email that the estimate for the report would be "+/- $15,000" plus the cost of a survey to be undertaken by a third party, which was estimated to cost about $3,000-$5,000. On or about November 13, 2009, he mailed an invoice for his work up to October 31, 2009 totaling $8,946.36, which the respondents paid.

[8] As mentioned, delivery of the report was considerably delayed beyond the expectations of the respondents and the intentions of the appellant. A draft report was not delivered until or about March 4, 2010. Cynthia communicated a number of corrections and comments to the draft report to Stahl. The Court is not in a position to assess the materiality of these revisions.

[9] On or about March 31, 2010, the appellant mailed a second invoice to the respondents in the amount of $17,453.13. Cynthia received this invoice in early April 2010. There is no doubt that she contacted Stahl at that time to have the account re-directed to the Trust.

[10] At some point thereafter, a dispute arose between the parties regarding the amount of the appellant’s fees for the report. The dispute had the effect, among other things, of delaying finalization of the report.

[11] The parties disagree about when the issue of the fees first arose. In addition to asking that the account be re-directed to the Trust, Cynthia says she also contacted Stahl in April 2010 to express shock at the size of the account relative to the +/- $15,000 fee set out in his email of October 31, 2009. She says she instructed him in a telephone call to stop work on the draft until the issue of the appellant’s fees was resolved to the satisfaction of the respondents. The appellant says that it did not know that the respondents objected to the amount of its fees until after it raised the non-payment of its invoices in October 2010. The appellant says that communication between it and Christopher proceeded uneventfully until November 2010, although Cynthia apparently failed to return the appellant’s telephone calls after April, 2010. I note that there is no evidence of Cynthia’s alleged telephone call instructing Stahl to stop work, nor is there any indirect evidence of her alleged instructions in the form of either communications from, or inactivity of, the appellant.

[12] In any event, the parties reached a stalemate in November 2010. As a result of an exchange of emails described in greater detail below, Cynthia, on behalf of the respondents, indicated that they were not prepared to pay the fees that had been billed to that date and wanted some resolution and finality regarding the appellant’s total fees for the report. For its part, the appellant insisted on receiving full payment and indicated that the final report would not be delivered until the fees were resolved.

[13] Although this matter was never resolved, the appellant eventually finalized the report and delivered the final report to the respondents on or about April 25, 2011, together with a further invoice which is not claimed in this action.

[14] There does not appear to be any dispute that the appellant’s final report covers the three matters which were required by the respondents. The final report also addressed certain other matters which the respondents say were not required nor within Stahl’s expertise, and therefore of no value. They resist payment of the full amount of the appellant’s invoices in part on this assertion. I would note, however, that this issue is not relevant to the present action given the determination of the Deputy Judge discussed below that the agreement between the parties provided for fees capped at “+/- $15,000”. In these circumstances, the respondents were not obligated to pay for such additional analysis or description in the final report in any event.

The Standard of Review

[15] The appeal is brought pursuant to section 31 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The standard of review is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 in paras. 6-10 and 36-37. On a pure question of law, the standard of review is correctness. The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a "palpable and overriding error". Questions of mixed fact and law are subject to the “palpable and overriding error” standard, unless it is clear that the trial judge made an error of law or principle that can be identified independently in the judge's application of the law to the facts of the case.

The Decision of the Deputy Judge

[16] The Deputy Judge found that an initial agreement between the parties arose at the time that Stahl visited the Cottage on August 11, 2009. The Deputy Judge found that Stahl was engaged by Cynthia at that time to provide a brief report determining the cause of the structural failure of the retaining wall, determining whether the garage was susceptible of a similar failure, and assessing the damage to the Cottage and boathouse — all for the purpose of determining if there was a basis for litigation against the Town and the Trust’s property insurer.

[17] The Deputy Judge concluded that the contract was for a fixed amount based on the appellant’s original quotation of $8,000-$10,000. The Deputy Judge found the amount of the original agreement was varied by Stahl in his email dated October 31, 2009 to "+/- $15,000", plus the cost of a survey to be undertaken by a third party, which was estimated to cost about $3,000-$5,000. While he does not say so, it appears the Deputy Judge implicitly held that the respondents accepted this variation of the agreement. The Deputy Judge concluded that payment of the appellant's initial invoice of October 31, 2009, which was prepared on a time and materials basis, was insufficient to establish that the contract provided for fees determined entirely on a time and materials basis.

[18] The Deputy Judge held that the agreement was terminated after an exchange of emails in November 2010 regarding the appellant's outstanding invoices, Stahl stated that "…we will require satisfaction of our account before we move forward". The agreement terminated when Cynthia refused to make payment. The Deputy Judge held that the respondents could reasonably expect that no additional work would occur after this exchange.

[19] The Deputy Judge also held that the appellant was not entitled to payment on a quantum meruit basis on the ground that the respondents received no value for the monies expended, as they had to incur the same cost again to engage other consultants to provide a similar report. He also concluded that the respondents were not unjustly enriched, but instead suffered a loss as they missed a limitation period with their insurer and incurred the additional expense of the other consultants’ reports.

Analysis and Conclusions

[20] The appellant alleges five grounds of appeal. In order to address these grounds of appeal, I propose first to set out my analysis of, and conclusions regarding, the legal framework within which the Deputy Judge reached his conclusions. I will then address the appellant's five grounds of appeal in turn.

Legal Framework of the Determinations of the Deputy Judge

[21] The Deputy Judge held that the agreement, as varied by the appellant and accepted by the respondents, provided for a fee of "+/- $15,000" in accordance with Stahl's email of October 31, 2009.

[22] It is a misnomer to characterize the agreement between the parties as either a fixed price agreement or an agreement for a fee based entirely on time and materials. The Deputy Judge found, in effect, that the agreement provided for a fee based on time and materials, subject to a cap in the form of the top end of Stahl’s estimate, which was initially $10,000 and was subsequently raised to an amount not materially in excess of $15,000. Further, the Deputy Judge proceeded on the basis that, in the absence of any written agreement, Stahl required the consent of the respondents to any increase in the maximum fee, which he obtained once in or about October 31, 2009 but not thereafter.

[23] The Deputy Judge also found that the appellant breached the agreement in failing to deliver its report in a timely fashion and of a length and scope consistent with the original agreement. In doing so, the Deputy Judge rejected the appellant's argument that the respondents terminated the agreement by way of anticipatory breach in refusing to pay the outstanding invoices after Stahl's email of November 16, 2010.

[24] An important finding of the Deputy Judge is his finding that there was a total failure of consideration. The relevant portion of the Decision on this issue reads as follows:

…, the defendants argue that there was a complete failure of consideration. The defendants did not receive the benefit of the geotechnical report due to the plaintiff’s lengthy delay in providing the said report in a timely manner. They were required to mitigate their loss of this key report and retain other engineering consultants to prepare a report at additional expense.

The defendants rely on Halsbury’s law of England, 4^th ed. (London: Butterworths, 1998) which defines the effect of total failure of consideration as:

“A complete failure where one of the contracting parties fails to receive the benefit or valuable consideration which springs from the contract, and is the essence of the contract.”

The Court finds as a fact that the defendants did not rely on the report since it was only in draft form, and the final report was delivered over one year later. The report was simply of no value, no benefit to the defendants.

The Court notes that the defendants were unable to pursue a claim against their insurer as it raised a limitation defence. See tab S, Exhibit S of Cynthia Waye’s affidavit, Defendants’ Book of Additional Documents referencing correspondence from The Dominion of Canada. There were real consequences to the plaintiff’s failure to produce the report.

[25] In summary, the Deputy Judge concluded that the appellant delayed delivery of its report to the point where it was of no value to the respondents. The Deputy Judge accepted the evidence of the respondents that they had to engage other engineering consultants in order to avoid missing a contractual limitation period in the Trust’s insurance policy. The appellant had knowledge of this limitation period, because its report was being prepared, in part, to assist such insurance claim. While the appellant submitted in its factum that there is no evidence of such a substitute report, it did not do so at the hearing.

[26] There is evidence from the respondents, in the form of oral testimony, that they have engaged two engineers on restricted mandates to provide expertise in connection with the Trust’s claims against its insurer and the Town. Cynthia testified in an affidavit in this proceeding that the Trust would have to engage these individuals because, given the acrimonious relationship that had developed with Stahl, the Trust considered that it could not rely on him to be an expert witness on its behalf in any litigation against the insurer or the Town.

[27] An important question for present purposes is whether the Deputy Judge erred in concluding that there had been a total frustration of the contract. There is ample evidence that the appellant delivered the draft report materially later than had been contemplated by Cynthia and Stahl when the agreement was entered into. There is also no doubt that such delay was, to a significant extent, caused by a combination of Stahl’s overly optimistic predictions and his management of the file.

[28] However, the delay by itself does not justify a finding of total frustration of the contract. Moreover, there is no evidence that the final report is, in its substance, of no value to the respondents. On the contrary, it would appear that the content of the final report could be of value to the respondents as it addresses the issues on which they required expert advice to make decisions regarding the potential for successful litigation against the Town or the Trust’s insurer.

[29] It is therefore necessary to address whether there is evidence upon which the finding of the Deputy Judge that the report was of no value can be supported. There are two possible bases for such finding of the Deputy Judge.

[30] First, the respondents say that the delay in Stahl’s delivery of the draft report caused them to miss a claim period with their insurer. The Deputy Judge accepted this evidence and concluded, on the basis of such finding, that the report was of no value to the respondents when it was delivered.

[31] It is correct that the insurer advised in a letter dated May 18, 2010 that it was denying coverage on a number of grounds, including the contractual limitation period in the insurance policy. However, the Deputy Judge appears to have misapprehended the evidence on this issue.

[32] According to the respondents, the date of the wall collapse was May 5, 2008. Consistent with this date, Cynthia testified that the Trust understood the claim period would expire on May 5, 2010. The respondents did make a claim before that date, which included excerpts of the appellant’s draft report delivered on or about March 4, 2010. The insurer denied coverage on the basis that the limitation period expired on January 1, 2010, which is clearly incorrect. In addition, it is significant that the insurer also denied coverage on the basis of five substantive exclusions in the insurance policy. This claim is still on-going.

[33] Based on the foregoing, I think the Deputy Judge made a palpable and overriding error in finding that the final report was of no value due to delivery after the expiry of the claim period under the Trust’s insurance policy.

[34] Second, the respondents also say that the report is of no value because, given the acrimonious relationship between the parties, they expect that Stahl would be a hostile and ineffective expert witness. Indeed, given the circumstances described above regarding the Trust’s claim under its insurance policy, this is the real basis for the respondents’ position that the report is of no value.

[35] However, the fact that the respondents believed that Stahl would not be a useful witness is not, by itself, a sufficient basis for such a finding. The respondents can only assert that the report was of no value because of the acrimony between the parties if the appellant, rather than the respondents, was the principal cause of the acrimony. Therefore, even if the respondents are correct that Stahl would no longer be available to act as an expert witness on their behalf, the issue of the value of the report turns on who bears the responsibility for the acrimonious relationship that has developed between the parties. This, in turn, depends upon a determination as to which party breached the agreement from and after the point at which the stalemate arose between them in November 2010.

[36] Accordingly, the fundamental issue of liability turns on the answer to the question of whether the appellant was entitled to payment of its outstanding invoices at the time the breakdown in the relationship of the parties occurred in November and December 2010. This issue is addressed below.

[37] I turn then to the appellant’s grounds of appeal.

The Contractual Arrangement

[38] The appellant argues that the Deputy Judge erred in finding that the agreement between the parties was for time and materials rather than for a fixed fee. This is a critical finding given the legal framework described above. The Deputy Judge held that the agreement, as varied, contemplated a fee of "+/- $15,000" that is, as discussed, a fee based on time and materials subject to a fixed cap not materially in excess of $15,000. The Deputy Judge thereby implicitly found that the fee was not the amount of the invoice of October 31, 2009, being $8,946.36, plus "+/- $15,000".

[39] Stahl did not provide Cynthia with any written advice regarding the appellant’s intended fee arrangements, nor did he obtain from her a formal engagement letter setting out his rates or an executed retainer agreement. As mentioned, the evidence before the Deputy Judge was that Stahl had provided an estimate of $8,000 - $10,000 in June 2009. Stahl’s letter to Cynthia of August 17, 2009 contemplates a process for clarification of the “scope and scale” of the report and, by inference, of the fees, but it does not address the issue of a fixed fee or a fee based exclusively on time and materials. If anything, it suggests a fixed fee was intended based on Stahl’s revised estimate. The only other evidence is the email of October 31, 2009. None of the evidence in the record suggests that Cynthia agreed to an open-ended arrangement of the nature asserted by the appellant. If that had been intended, the appellant should have obtained some form of written acknowledgement to that effect.

[40] Given this limited evidence regarding the fee arrangement, the finding of the Deputy Judge regarding the fee arrangement was reasonable.

[41] The finding that the agreement provided for a fee of “+/- $15,000”, rather than $8,946.30 plus +/- $15,000, was also reasonable in view of the fact that the respondents had not received, and were not aware of, the invoice dated October 31, 2009 when they received Stahl's email on that date setting out the variation of the agreement to which they assented by their silence. Their consent by acquiescence after that date can reasonably be interpreted to relate to an upward revision of the appellant’s fees only to “+/- $15,000”. In the circumstances, it was reasonable for Stahl, rather than the respondents, to bear the onus of clarifying whether or not the bill of the same date as Stahl’s email represented an additional amount over and above the fee of "+/- $15,000". While Stahl may have intended this to be the fee arrangement, this subjective intention is of little value in the present circumstances for determining the agreement between the parties, which is subject to an objective test.

The Breach of the Contract

[42] The Deputy Judge found that the appellant imposed a condition precedent to the completion of the contract in November 2010 when he stated that no further work would occur on the report until the appellant was paid its outstanding invoices. He held that the agreement terminated when Cynthia indicated that the respondents refused to make payment.

[43] The appellant submits that the Deputy Judge erred in failing to find that the respondents' failure to pay the appellant’s invoices, on or about November 2010, constituted an anticipatory breach entitling the appellant to terminate the agreement and sue for damages in the amount of the outstanding invoices.

[44] Although I do not think that the legal result is accurately described in terms of the failure of a condition precedent, there is a reasonable basis for the finding of the Deputy Judge that the agreement was terminated in November or December 2010. This conclusion follows from his findings regarding the fee arrangements under the agreement.

[45] In her email of November 15, 2010, Cynthia set out the position of the respondents that the estimated cost to which the respondents had agreed was $20,000, including $5,000 for the third party’s costs. In his email of November 16, 2010, Stahl set out the position of the appellant, including its intention not to go forward without payment of its outstanding invoices.

[46] Cynthia did not immediately respond to these emails of Stahl. She did, however, respond to a further inquiry sent by the appellant by email on December 7, 2010. In her email response dated December 17, 2010, Cynthia reviewed the respondents’ position and asked Stahl to “honour our agreement”, that is, reduce the appellant’s total fee to “+/- $15,000”. There does not appear to have been any other communication between the parties until after the appellant delivered its final report in April 2011.

[47] Given the findings of the Deputy Judge regarding the fee arrangement, the respondents were entitled to insist that the appellant complete its report charging no more than "+/- $15,000". The fee arrangement was an essential term of the agreement between the parties. In these circumstances, the appellant’s demand for payment in excess of this amount, coupled with their refusal to complete the final report until after payment of their outstanding fees totaling materially in excess of this amount, constituted a breach of the agreement that entitled the respondents to terminate the agreement.

[48] As the Deputy Judge noted, when the respondents not only failed to pay the appellant’s outstanding invoices, but also failed to respond to the appellant’s offer of an instalment payment arrangement for their fees, the appellant knew that the respondents had effectively terminated the agreement. In any event, I think that Stahl would have understood that Cynthia’s email of December 17, 2010 ended the relationship between the parties and that the only remaining question was whether or not the respondents were liable to pay the appellant’s outstanding invoices. In these circumstances, Cynthia’s email of December 17, 2010 effectively constituted notice of termination of the agreement given the appellant’s unwillingness to limit its fees to the amount of “+/- $15,000”. For the same reasons, the respondents’ failure to pay the appellant’s outstanding invoices that brought the total fees substantially above $15,000 did not constitute anticipatory breach.

Liability of Cynthia Waye

[49] The appellant submits that the Deputy Judge erred in finding that Cynthia was not properly a defendant in the action and was not personally liable to the extent that the other defendants were found to be liable to the plaintiff.

[50] The appellant relies on its email of May 6, 2010 in which it made its position clear that Cynthia was primarily liable for its account. However, this email was followed by an email of Cynthia, dated May 7, 2010, which states that the Trust will be paying the account. It would appear that Cynthia intended this email to correct Stahl's understanding that she was to be personally liable, although it is susceptible of different interpretations as it speaks only to the party who will be writing the cheque.

[51] Given Cynthia’s involvement to that date, as well as the somewhat imprecise language in the email of May 7, 2010, the matter of Cynthia’s personal liability, as agent of the Trust or otherwise, was not clear. Nevertheless, I conclude that there was a reasonable basis for the finding of the trial judge on this issue. I would note, however, that while not dispositive of the issue of liability, this clarity is significant for the issue of costs as discussed below.

Quantum Meruit

[52] The Deputy Judge rejected the appellant’s claim for quantum meruit based on his findings of delay in the delivery of the report, the absence of any value of the report to the respondents when it was delivered, and the respondents’ related, additional expense in obtaining further reports from other consulting engineers. While there is reason to doubt the reasonableness of these particular findings of the Deputy Judge for the reasons set out above, the result is nevertheless supportable on the evidence before him. The principal reason why the appellant’s report is no longer of value to the respondents is that, as a practical matter, it is unrealistic to consider that Stahl will act as a supportive, expert witness in any litigation that the respondents pursue against the Town or the Trust’s property insurer. As mentioned, because the appellant was principally responsible for the acrimony which has arisen between the parties, it cannot assert that the report has value to the respondents. On this basis, I conclude that the Deputy Judge’s denial of the appellant’s claim based on quantum meruit is not based on a palpable and overriding error.

Costs

[53] The appellant further appeals the costs awards in favour of each of the respondents.

Leave to Appeal

[54] As a preliminary matter, the respondents raise the absence of an order of the court granting leave to appeal such awards. The respondents argue that none of the costs awards can satisfy either of the tests for the granting of leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure.

[55] There is, however, good reason to doubt the correctness of each of the costs awards as set out below. Moreover, the issues at play in each case raise matters of importance that require consideration by this Court as, in each case, they have the effect of increasing the costs payable in small claims court proceedings, proceedings that are intended to be both inexpensive as well as efficient for the parties involved.

[56] Accordingly, leave to appeal each of the costs awards of the Deputy Judge is granted, pursuant to the provisions of Rule 62.02(4)(b) to the extent it is required.

[57] I will address the awards in favour of each of the respondents in turn.

Cynthia Waye

[58] It is not disputed that Cynthia and Ashley made an offer under Rule 14 of the Small Claims Court Rules that was not accepted by the appellant. Accordingly, the double cost consequences of Rule 14.07(2) are applicable.

[59] In respect of Cynthia, the Deputy Judge found that it was unreasonable behaviour for the appellant to have proceeded against Cynthia. He considered that it was clear that she had no personal liability and was put to an unnecessary trial. In reaching this conclusion, the Deputy Judge considered that the appellant acknowledged that its services were provided to the Trust, for which Cynthia was merely an agent, when it changed its account records, re-sent the second invoice to the Trust and addressed all further invoices to the Trust.

[60] Quite apart from the issue of whether there was a reasonable basis on the evidence for the finding that the appellant acted unreasonably in naming Cynthia as a defendant, the Deputy Judge erred in law in reaching the determination of unreasonable behaviour on such basis. For the purposes of section 29 of the Courts of Justice Act"unreasonable behaviour in the proceeding" pertains to unreasonable behaviour in the conduct of the proceeding itself by one of the parties. It does not extend to the action of naming a party as a defendant unless, if at all, such action is clearly abusive. The appellant's conduct was clearly not abusive, nor did the Deputy Judge suggest it was. Given Cynthia’s involvement in this matter, there was a legitimate issue as to her personal liability as mentioned above, even if she was ultimately found to be only an agent for the Trust.

[61] Accordingly, the provisions of Rule 14.07(2) of the Small Claims Court Rules were applicable, but not the provisions of section 29 of the Courts of Justice Act upon which the Deputy Judge ruled in making his costs award in her favour. Therefore, this costs award must be set aside and remitted to the Deputy Judge for a new determination as to whether Cynthia is entitled to any costs.

Ashley Waye

[62] In respect of Ashley, after noting she was self-represented, the Deputy Judge awarded costs of $7,500. As the provisions of Rule 14.07(2) of the Small Claims Court Rules were applicable, it appears this amount represents legal fees that Ashley claimed in her own representation, as she is a member of the Law Society of Upper Canada.

[63] In reaching this conclusion, the Deputy Judge also erred in law. A solicitor who is a party to a proceeding is not entitled to costs based on the value that the solicitor would charge a third party for such services. Such a party is only entitled to “a ‘moderate’ or ‘reasonable’ allowance for the loss of time devoted to preparing and presenting the case”: see Fong v. Chang, 1999 2052 (ON CA), [1999] O.J. No. 4600 (C.A.), per Sharpe J.A., at para 28. In this case, there is no evidence of any such lost income on the part of Ashley representing the opportunity cost of time spent working in relation to the proceeding. Accordingly, Ashley stands in the same position as any other self-represented litigant in a small claims court action.

[64] Therefore, the costs award in respect of Ashley must also be set aside in respect of the award of $7,500 and remitted to the Deputy Judge for a determination regarding whether she is entitled to any costs.

Christopher Cook

[65] Lastly, with respect to Christopher, the Deputy Judge awarded $1,650 as a representation fee for his attendance at court and at a settlement conference. There is no evidence that Christopher paid any legal counsel any amount for representation services. Insofar as it is suggested that Ashley provided such services, there is no evidence that she represented Christopher. In particular, while the Deputy Judge referred to Ashley as representing Christopher, she was not shown as counsel on the record for Christopher, nor is there any evidence that she charged Christopher any fee for such representation services.

[66] Accordingly, this portion of the costs award in favour of Cook must also be reduced by the amount of the representation fee of $1,650.

Costs of this Appeal

[67] The final issue for the Court is the matter of costs of this appeal. The respondents seek costs of $7,707.50 on a partial indemnity basis, there being no basis for an award on a full indemnity basis. Of this amount, $3,840 represents the time of Ashley, which apparently represents 24 hours spent on preparation of the materials pertaining to this appeal. This amount is disallowed for the reasons stated above. It is not suggested that this amount represents lost income of Ashley attributable to the time she spent in the preparation of these materials. Moreover, the respondents were substantially but not entirely successful on this appeal. Based on the foregoing, I think fair and reasonable costs of this appeal are $3,000, on an all-inclusive basis, payable by the appellant.

Wilton-Siegel J.

Date: December 23, 2015