Barbe v. Morin, 2015 ONSC 743

CITATION: Barbe v. Morin, 2015 ONSC 743 COURT FILE NO.: DV 95413 DATE: 2015/02/18

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

B E T W E E N:

YVON BARBE Plaintiff (Respondent)

• and -

OMER MORIN and SEAL TECH BASEMENT AND SEALING INC. Defendants (Appellants)

COUNSEL: Christian Tremblay, for the Respondent Ian McLean, for the Appellants

HEARD: January 29, 2015

BEFORE: Ellies J.

REASONS FOR DECISION

[1] The appellants appeal the decision of the deputy Small Claims Court judge in which he awarded the respondent damages of $25,000 and costs in the amount of $7,500, excluding disbursements, and ordered that the costs be payable jointly and severally by the appellants and their lawyer.

[2] The appellants contend that: (1) the deputy judge should have recused himself; (2) the award of costs was excessive; and (3) the costs ought not to have been awarded against counsel for the appellants.

[3] For the following reasons, the appeal is dismissed with respect to the damage award and with respect to the quantum of the costs awarded. The deputy judge committed no error in refusing to recuse himself, nor did he commit any error in the exercise of his discretion by awarding costs in the amount that he did. However, the appeal is allowed with respect to the deputy judge’s order that those costs be paid jointly and severally by the appellants and their lawyer. In my view, the lawyer was not provided with sufficient notice that costs relating to the entire proceeding would be sought against him in the event that his clients’ recusal motion was denied.

BACKGROUND

[4] This litigation has a sad history that reflects badly on the justice system. Unfortunately, it must be retold in some detail here, in order to put the decision of the deputy judge in context.

[5] The respondent commenced his action on August 18, 2011, claiming damages of $25,000 from the appellants, a corporation and its sole or principal shareholder. The respondent alleged that the appellants had failed to repair his wet basement, as they had been hired to do. The respondent contended that the appellants had failed to determine that the true cause of the water problems in his basement was a defective water line and not the foundation walls or weeping tile, as the appellants advised him.

The First Trial Date – November 23, 2012

[6] The appellants retained Mr. McLean and opposed the respondent’s claim. The matter was first set down for trial on November 23, 2012. On that date, the appellants moved for an adjournment for two reasons. The first was that certain materials were still in the court record that were to have been removed as a result of a discussion held at the settlement conference. The second reason was that respondent’s counsel had worked for a period of time in the law firm with which the deputy judge presiding on November 23 had been associated.

[7] The respondent consented to this adjournment. A new date for trial was set at that time, but that date had to be adjourned a short while later because of a conflict in the respondent’s schedule. As a result, on January 3, 2013, the trial was rescheduled to April 19, 2013. However, on February 15, 2013, Mr. McLean requested an adjournment so that he could attend a continuing legal development program in Las Vegas, Nevada. The trial was therefore rescheduled on consent just one week later to April 26, 2013.

The Second Trial Date – April 26, 2013

[8] On April 3, 2013, the appellants requested that the respondent consent to another adjournment because a lady named Larocque was allegedly unable to attend on the date scheduled for trial due to a medical appointment. As the respondent had never received a witness list and was unaware of Ms. Larocque’s role in the matter, he refused to consent. On April 24, 2013, Mr. McLean wrote again to counsel for the respondent, forwarding a copy of correspondence from Ms. Larocque that indicated, for the first time, that the appellant, Mr. Morin, had to drive her to the medical appointment. Because the letter also indicated that the appointment had been made a number of months before, the respondent continued to oppose the appellants’ eleventh hour adjournment request.

[9] On April 25, 2013, the appellants served the respondent with a motion and on April 26 they moved before the deputy judge to adjourn the trial scheduled to commence that morning. The affidavit sworn in support of the motion indicated, also for the first time, that Ms. Larocque was Mr. Morin’s wife. Although opposed, the appellants’ motion was granted and the trial was adjourned to a date to be set, peremptory upon the appellants. The presiding deputy judge awarded the respondent $750 in costs because the respondent was prepared to proceed to trial that morning and had attended with a number of witnesses. The trial date was rescheduled for June 19, 2013, and the presiding deputy judge indicated that he was seizing himself of the matter.

The Third Trial Date – June 19, 2013

[10] On June 19, 2013, however, the third date upon which this matter was to proceed, it was once again adjourned. It is difficult to determine from the record who, if anyone, was to blame for the adjournment. For some unknown reason, the presiding deputy judge on June 19 was not the deputy judge who had presided on April 26 and who had seized himself of this matter at that time. After counsel for the respondent indicated that he was ready to proceed that morning, Mr. McLean asked to see the deputy judge in chambers. When court resumed, the deputy judge stated that Mr. McLean’s client had approached Mr. McLean and indicated that the deputy judge had presided over a trial some 13 or 14 months previously, in which Mr. Morin had been involved. The deputy judge held that it would be inappropriate for him to preside at the trial and, therefore, used the time set aside that day to conduct a lengthy settlement conference.

[11] The matter failed to resolve and it was referred to the clerk to set a new date before the same deputy judge that granted the adjournment on April 26, 2013. According to an affidavit sworn on December 5, 2013, by Jo-An Vaillancourt, a legal assistant in the office of counsel for the respondent, a new trial date was set that day. The new date was October 25, 2013.

The Fourth Trial Date – October 25, 2013

[12] Once again, however, the matter did not proceed on the date scheduled for trial. As the events of October 25 later formed the basis for the appellants’ recusal motion on December 6, 2013, I will deal with them in some detail.

[13] On October 25, just as had happened on June 19, this matter was scheduled for trial before a deputy judge other than the one who had seized himself of the matter on April 26. Fortunately, however, the deputy judge presiding on October 25 had not been involved previously in this matter in any substantive way[^1], or in any other matter involving the appellants.

[14] As he had been at each of the earlier dates upon which this matter had been scheduled for trial, the respondent was present and prepared to proceed. However, as had occurred on April 26, the only person present for the defence when court opened was Mr. McLean. Mr. McLean advised the deputy judge that his client, Mr. Morin, had been present earlier, but that he had to go to the hospital because he was suffering from pain radiating down his back and into his leg. The deputy judge assumed, correctly, that Mr. McLean was asking for another adjournment as a result.

[15] The request for an adjournment was vigorously opposed by counsel for the respondent, who set out some of the history of this matter, including the adjournments that had occurred on April 26 and on June 13, both at the request of the appellants.

[16] The deputy judge initially decided that, because of the number of times this matter had been adjourned and the delays since it had been begun, the trial should commence. At that point, the following exchange took place between Mr. McLean and the deputy judge,

MR. MCLEAN: Your decision is that a man in the hospital is supposed to come here and defend his interest. Have I got that right?

THE COURT: We don’t have any proof of that Mr. McLean

MR. MCLEAN: No. How can I get proof? He showed up at 8:30 and went to the hospital. You are not even giving me the chance to get proof.

THE COURT: Well it’s now 10 o’clock.

MR. MCLEAN: Yes.

THE COURT: He was here at 8:30.

MR. MCLEAN: Sorry?

THE COURT: He was here at 8:30.

MR. MCLEAN: He was.

THE COURT: And left at 8:30.

MR. MCLEAN: About 20 to 9. I immediately phoned Mr. Tremblay to tell him that.

THE COURT: Well I suspect someone from your staff could have gone over or – what are you asking me to do then?

MR. MCLEAN: I’m asking for an adjournment so the man can defend his case.

THE COURT: An adjournment of an hour or two or are you talking about….

MR. MCLEAN: I want to find out how he is. I had a client had a heart attack on me once in court.

THE COURT: Well I’ll give you 15 minutes to call and find out Mr. McLean. Then I will come back and finish my decision.

[17] Following a recess, Mr. McLean reported to the court that Mr. Morin was still at the hospital, but had passed through triage. Mr. McLean indicated that Mr. Morin did not know if he was going to be released from or admitted to the hospital. Over the objections of counsel for the respondent, the deputy judge granted the adjournment request. In so doing, he stated:

Well I’m very reluctant to grant the adjournment. And it also bothers me that if I would not grant it, even if this gentleman showed up he would be medicated in some fashion or another. That’s not … a prudent way to proceed. What I’m going to ask you to do is to go downstairs and find a new date as soon as possible, convenient to both parties and to the Court, and we will make it peremptory. And I won’t be making a cost award.

[18] A new date for trial December 6, 2013, was set and confirmed on the record after the court took a recess. Once again, that date was made peremptory upon the appellants.

[19] Although the deputy judge had indicated that he would not be making an award of costs, counsel for the respondent pursued one nonetheless, asking for $1,500. On behalf of his clients, Mr. McLean opposed the request, submitting that his clients ought not to be penalized for the fact that Mr. Morin’s health had failed him unexpectedly.

[20] The deputy judge was ultimately persuaded to award costs to the respondent in the amount of $1,000. His endorsement of that date reads as follows:

In view of the representations made by Mr. McLean that his client was hospitalized today, medicate[d] & under observation and not withstanding my difficulty with the nature & quality of the “evidence” before the court in support of the request for what appears to be the 5th or 6th adjournment of this trial, the matter is adjourned to Dec. 6th/13 at 9:30 a.m. peremptory on the defence. Costs in view of the unusual circumstances of this matter fixed at $1000.00 payable to Christian Tremblay prior to Dec. 6, failing which the defence will be struck. Defence to provide a medical report as to Omer Morin’s hospitalization today.

The Fifth Trial Date – December 6, 2013

[21] On December 6, 2013, Mr. McLean was once again the only person present for the defence and the respondent and his lawyer were, once again, present and prepared to proceed. However, as they had done on two previous occasions, the appellants were asking for an adjournment on the basis that the deputy judge ought not to hear the matter.

[22] Although it appears that the appellants knew as early as November 19, 2013[^2], that the same deputy judge that presided on October 25 would be present on December 6, the appellants did not serve their motion materials asking the deputy judge to recuse himself until December 5. The appellants’ motion was supported by an affidavit sworn by Mr. Morin, which had attached to it a number of documents relating to his attendance at the hospital on October 25. In his affidavit, Mr. Morin deposed that he did not believe that the deputy judge could be fair and impartial as a result of what had occurred on October 25.

[23] Despite the late service of the appellants’ recusal motion, counsel for the respondent managed to serve and file the Vaillancourt affidavit to which I made reference earlier. In her affidavit, Ms. Vaillancourt deposed that Mr. McLean was, in fact, scheduled to defend a criminal case in a courtroom down the hall on the same date that the Small Claims Court matter was to be tried. She deposed that the date for the criminal trial had been scheduled on September 20 (i.e. before Mr. McLean agreed on October 25 to the December 6 date). Counsel for the respondent argued, therefore, that the appellants had no intention on October 25 of proceeding with the trial in the Small Claims Court on December 6 and that the appellants’ bias argument, therefore, was specious.

[24] During the argument on the motion, Mr. McLean denied that he had been double-booked for December 6. Unfortunately, I am unable to understand the argument he made on that date from the transcript and I was equally unable to understand his submissions on the issue during the argument of this appeal. He told the deputy judge during the motion that “the charge next door is resolving” and that the criminal matter “is resolved”. However, at the conclusion of the trial later that day, respondent’s counsel called Ms. Vaillancourt to the witness stand. She gave sworn evidence that she had just come from the court down the hall and that she witnessed Mr. McLean involved in a trial on behalf of the same person referred to in her affidavit. No evidence to the contrary has ever been filed in these proceedings.

[25] While Mr. McLean was still in the Small Claims Court, he argued that the deputy judge ought to recuse himself because, in imposing the costs award he did on October 25, the deputy judge had fined the Mr. Morin for being ill and made a credibility finding against both Mr. Morin and against his lawyer.

[26] The deputy judge disagreed. In his reasons for refusing the appellants’ request, he indicated that, had the matter not been adjourned a number of times prior to October 25, he “would not even (have) blinked … and would have granted the adjournment immediately” but, because of the history of the matter, he “wanted some details”. The deputy judge denied that the costs were imposed as a fine or that he made a credibility finding on the date they were imposed. As he pointed out, he eventually accepted Mr. McLean’s representation that the defendant was ill and granted the adjournment request. Therefore, he dismissed the appellants’ request that he recuse himself.

[27] Following the ruling, Mr. McLean indicated that he was instructed not to participate in the trial and, with the court’s permission, he walked out of the courtroom. The trial then took place in the absence of the defence.

ISSUES

[28] No issue has been raised by the appellants with respect to what occurred during the trial. The sole issue raised regarding the damage award is whether that trial should have proceeded at all.

[29] With respect to the issue of costs, the notice of appeal raises two issues. The first is whether the costs amounted to a penalty for the illness of the defendant Morin. However, this can only relate to what occurred on October 25, as there was no indication in the evidence that Mr. Morin was absent on December 6 due to illness. And yet, the notice of appeal is specifically restricted to what occurred on December 6. For that reason, I will consider the costs award of October 25 only as it relates to whether the deputy judge should have recused himself on December 6.

[30] The other issue raised in the notice of appeal regarding costs is whether they were “excessive” and “a vindictive exercise of judicial power”.

[31] Although not raised in the notice of appeal regarding costs, during argument Mr. McLean raised the provisions of rule 57.07 of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194. Rule 57.07 requires that no order for costs be made against a lawyer unless the lawyer is given a reasonable opportunity to make representations to the court. The issue is whether Mr. McLean was provided with that opportunity.

ANALYSIS

The Deputy Judge’s Refusal to Recuse Himself

[32] An allegation that a decision-maker was not impartial is an allegation that the rules of natural justice and procedural fairness have been breached. There is good deal of confusion in the jurisprudence with respect to what standard of review, if any, applies to such an alleged breach. Previously, it was thought that the standard of review was correctness: see Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 43. Recently, however, Stratas J.A. argued persuasively that the standard of review is reasonableness: see Maritime Broadcasting System Ltd. v. Canadian Media Guild, 2014 FCA 59, 373 D.L.R. (4th) 167, at para. 48.

[33] Our Court of Appeal in Ontario (Commissioner, Provincial Police) v. MacDonald, 2009 ONCA 805, 255 O.A.C. 376, relying on jurisprudence from this court, held that it is not necessary to consider the standard of review at all when a decision is challenged on the basis of a denial of natural justice. LaForme J.A. wrote on behalf of the court, at para. 37:

In my view, it was unnecessary for the Divisional Court to even address the issue of standard of review because procedural fairness does not require an assessment of the appropriate standard of review. The proper approach is to ask whether the requirements of procedural fairness and natural justice in the particular circumstances have been met: Forestall v. Toronto Services Board (2007), 2007 31785 (ON SCDC), 228 O.A.C. 202 (Div. Ct.) at para. 38. The Divisional Court followed this course and, in my view, it committed no error in doing so.

[34] Applying this approach, I do not believe that the requirements of procedural fairness and natural justice required the deputy judge to recuse himself in the circumstances of this case.

[35] A judge should recuse himself and, where he refuses to do so, a reviewing court should interfere only where the party alleging partiality can establish a reasonable apprehension of bias on the part of the trial judge.

[36] The test for establishing a reasonable apprehension of bias is well-settled and finds its genesis in the judgment of de Grandpré J. in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, at pp. 394-95:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”

[37] The Court of Appeal in MacDonald provided the following succinct summary of the elements that inform the analysis under the test for reasonable apprehension of bias set out by the Supreme Court of Canada in Committee for Justice and Liberty, at paras. 42 to 44:

The test contains a two-fold objective element: first, the person considering the alleged bias must be reasonable; and second, the apprehension of bias itself must also be reasonable. The jurisprudence in Canada has, over the years, defined and fleshed out these two elements. For example, the reasonable person is vested with knowledge and understanding of the judicial process and the nature of judging. Further, “[t]he grounds for this apprehension must ... be substantial... and the test [will not] be related to the very sensitive... conscience”: R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484 at paras. 31 and 37.

The reasonable person also knows and considers the context surrounding the impugned behaviour, including the length and difficulty of the proceedings: Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259 at para. 77; Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 2000 16946 (ON CA), 51 O.R. (3d) 97 (C.A.).

There is one final, essential element that informs the analysis: the strong presumption of judicial impartiality and integrity. The onus rests on the applicant to demonstrate a reasonable apprehension of bias, and the threshold is a high one: see, for example, R. v. Brown (2003), 2003 52142 (ON CA), 64 O.R. (3d) 161 (C.A.) at paras. 37-39; Chainauskas Estate v. Reed (2009), 2009 ONCA 572, 251 O.A.C. 209 (C.A.) at para. 12.

[38] In my view, the appellants have failed to surmount this high threshold.

[39] It is important to keep in mind the statutory and regulatory framework in which the Small Claims Court operates when considering this ground of appeal. Both the governing statute and the Small Claims Court Rules, O. Reg. 258/98, place a premium on the delivery of timely justice. Section 25 of the Courts of Justice Act, R.R.O. 1990, c. C.43, provides:

The Small Claims Court shall hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience. [Emphasis added.]

[40] The Small Claims Court Rules put this philosophy into practice. Rule 17.01(2)(a) provides that the trial judge may proceed with a trial in the absence of a party who fails to attend. Rule 17.02(1) provides that the court may adjourn a trial on such terms as are just, but rule 17.02(2) provides that:

If the trial of an action has been adjourned two or more times, any further adjournment may be made only on motion with notice to all the parties who were served with the notice of trial, unless the court orders otherwise.

[41] As no notice of motion had been served prior to the defence request to adjourn on October 25, the trial could only be adjourned if the court “ordered otherwise”.

[42] In the circumstances of this case, the deputy judge was entitled to approach the adjournment request on October 25 with a healthy dose of skepticism and even a larger amount of concern for the effect of yet another adjournment on the reputation of the justice system in general, and on the respondent, in particular. The deputy judge was entitled to require some information in addition to the information initially provided by Mr. McLean before agreeing to adjourn the trial in light of the fact that the respondent had appeared before the court on four previous occasions, ready to proceed to trial. The deputy judge was equally entitled to be concerned as a result of the fact that the trial had been adjourned on each of these occasions as a result of requests made or concerns expressed on behalf of the appellants.

[43] In these circumstances, the deputy judge’s decision initially to proceed with the trial on October 25 could not give rise to a reasonable apprehension of bias, in my view. This is especially true in light of the fact that the deputy judge eventually granted the appellants’ request after being provided with more information.

[44] The fact that the deputy judge awarded $1,000 in costs to the respondent after granting the adjournment does not detract from the strength of my opinion on this issue. Rule 17.02(1) of the Small Claims Court Rules, to which I made reference above, provides that in adjourning a trial, the court may order payment “by one party to another of an amount as compensation for inconvenience and expense”. The respondent in this case was entitled to be compensated for preparing yet again for a trial that did not proceed. There is nothing in the record to support the appellants’ contention that these costs were imposed as a penalty, even if one ignores the deputy judge’s own statement to the effect that they were not. The respondent actually sought costs in an amount higher than those that were eventually awarded.

[45] This ground of appeal must fail, in my view.

The Amount of Costs Awarded at Trial

[46] Section 29 of the Courts of Justice Act restricts an award of costs in the Small Claims Court, other than for disbursements, to no more than 15 percent of the amount claimed. However, rule 14.07 of the Small Claims Court Rules provides that, where a respondent makes an offer to settle that is not accepted by the defendant, the court may award the respondent an amount not exceeding twice the costs of the action, provided the following conditions are met:

1. the respondent obtains a judgment as favourable as or more favourable than the terms of the offer;
2. the offer was made at least seven days before the trial; and
3. the offer was not withdrawn and did not expire before the trial.

[47] In the present case, the respondent made a series of offers to settle prior to trial, all for less than the $25,000 eventually awarded as damages. The latest offer, which had remained open until the commencement of trial, was for $20,000. Thus, all three prerequisites set out in rule 14.07 had been met.

[48] In addition to relying on rule 14.07, counsel for the respondent referred the deputy judge to the provisions of rule 19.06 of the Small Claims Court Rules which provides:

Penalty -- If the court is satisfied that a party has unduly complicated or prolonged an action or has otherwise acted unreasonably, the court may order the party to pay an amount as compensation to another party.

This rule relates to an exception to the cap on costs set out in s. 29 of the Courts of Justice Act. That section provides that the court may award costs exceeding 15 percent of the amount claimed where “the court considers it necessary in the interests of justice to penalize a party or a party’s representative for unreasonable behaviour in the proceeding.”

[49] Counsel for the respondent argued that the appellants in this case had acted unreasonably in filing two last minute motions and in not attending three trials. He submitted that he had to prepare seven times for trial. I cannot see how he arrived at that figure. By my count, counsel for the respondent had to prepare for five trial dates. While it is true that seven different dates had been set for trial, as I indicated above, two of them were rescheduled on consent shortly after they were set in order to accommodate the lawyers’ schedules. Moreover, costs had already been awarded to compensate the respondent for the adjournments which occurred on April 26 and October 25. The adjournments which occurred on January 3 and June 19 arose as a result of issues relating to the deputy judge’s familiarity either with counsel for the respondent or with the defendant Morin and were not made the subject of any costs award.

[50] It would have been an error in the exercise of his discretion, in my view, if the deputy judge had based the amount he awarded for costs on December 6 on the earlier delays which had either not been the fault of the appellants or had already been the subject of an award of costs. However, as I read the transcript, that is not what occurred. Instead, the deputy judge appears to have arrived at the amount of costs awarded based on the provisions of rule 14.07 and the fact that the respondent did better than he had offered to settle for prior to trial. I say this because, although the deputy judge did not indicate expressly that he accepted the respondent’s lawyer’s submissions that this should be the amount based on rule 14.07, immediately after those submissions, the deputy judge asked the respondent’s lawyer about disbursements. The following appears at p. 43 of the transcript:

MR. TREMBLAY: Having done better than our offer I would be seeking the full 30 percent as per the Small Claims Court Rules.

THE COURT: Well, you’d have to guide me to that Rule because I don’t remember it being 30 percent because under the Courts of Justice Act, which would come in I believe in a case where costs awarded on the Small Claims Court Act are not appropriate, in Section 29 which would “shall not exceed 15% of the amount claimed”.

MR. TREMBLAY: If you read at Rule 14.07 of the Small Claims Court Rules.

THE COURT: Fourteen?

MR. TREMBLAY: Point 07, If you have the same version as I do I can give you the page.

THE COURT: “Costs constitute a failure to accept?

MR. TREMBLAY: That’s correct. My understanding is we’re entitled to twice that amount given that we’ve made an offer, which would be 30 percent.

THE COURT: Now do you have disbursements, lists of disbursements?

MR. TREMBLAY: Pardon?

THE COURT: Do you have a list of disbursements?

MR. TREMBLAY: I do not, Your Honour.

THE COURT: All right. Let me set that down at 175 which would be the cost of issuing the claim and the $100 to set it down.

MR. TREMBLAY: That’s fair…

[51] Although the lawyer for the respondent did go on thereafter to refer the deputy judge to the delays that had taken place, following those submissions, the deputy judge stated, at p. 50 of the transcript:

THE COURT: Well in relation to your submissions I have fixed the costs Mr. Tremblay at $7,500.

MR. TREMBLAY: I thank you.

THE COURT: And I think that compensates the parties, you know but I’m leaving that open in the event that cheque is not honoured [referring to the cheque the respondent’s lawyer had received from the appellants’ lawyer for the costs ordered on October 25] I’d like to know about it. My decision on costs of $7,500.00 are contingent on the fact that that cheque will be honoured…

[52] From these words, I conclude that the deputy judge was careful not to award additional costs with respect to any adjournment that had already been the subject of such an award. I also conclude that he set the amount of the costs award at an amount he felt compensated the respondent, taking those earlier cost awards, and the unaccepted offer to settle, into account.

[53] The amount of costs to be paid by the appellants was a matter wholly within the discretion of the deputy judge. As a result, it is entitled to deference upon review. An appellate court may set aside a costs award only if the trial judge made an error in principle or if the costs award is clearly wrong: see Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27. I see no basis upon which to interfere with the deputy judge’s decision in this case.

The Award of Costs Against Counsel

[54] Rule 57.07 of the Rules of Civil Procedure is applicable to proceedings in the Small Claims Court as a result of the fact that no specific rule exists in the Small Claims Court Rules addressing the issue of costs being awarded against counsel: see Small Claims Court Rules, rules 1.03(2) and 19.

[55] Relying on rule 57.07 of the Rules of Civil Procedure, counsel for the respondent asked the deputy judge to order costs against Mr. McLean. In so doing, he brought to the attention of the deputy judge a number of the leading cases and submitted that Mr. McLean had been responsible for causing costs to be incurred without reasonable cause or to be wasted by undue delays. Counsel submitted that the recusal motion had no merit and that the evidence showed that Mr. McLean had no intention of being there to conduct the trial regardless of the outcome of that motion.

[56] During the course of argument, the deputy judge correctly pointed out that there was no evidence that Mr. McLean had encouraged his client to unduly delay the proceedings. However, after setting the cost award at $7,500, as shown in the excerpt from the transcript set out above, the deputy judge went on to accept the submissions of counsel for the respondent “wholeheartedly”, as he put it, and ordered that the costs be payable jointly and severely by the appellants and Mr. McLean.

[57] An award of costs against a lawyer representing a client is, and should be, an exceptional thing. A lawyer facing an award of costs against him is in a very difficult position. Unless solicitor-client privilege is waived, the lawyer may be handicapped in his defence: see Galganov v. Russell (Township), 2012 ONCA 410, 294 O.A.C. 13, at para. 28. Thus, an award of costs against a lawyer must be made only sparingly, with care and discretion, where there has been reprehensible, scandalous or outrageous conduct, and not simply because the conduct of the lawyer may appear to fall within the circumstances described in rule 57.07(1): see Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at pp. 135-136. For that reason, rule 57.07 requires that the lawyer against whom an award of costs is sought must be given notice and a reasonable opportunity to make representations to the court.

[58] The respondent submits that sufficient notice was given to Mr. McLean by virtue of the Vaillancourt affidavit. I am unable to agree.

[59] In the very last paragraph of that affidavit, the following appeared:

The Plaintiff will request that costs be payable by the Defendants and his [sic] Counsel, jointly and severally.

Even if a single paragraph contained in an opposing affidavit could be considered sufficient notice under rule 57.07, this paragraph does not suffice. Read reasonably, it indicates only that costs would be sought for the failed recusal motion. It does not indicate that costs would be sought against Mr. McLean for the entire proceeding. Those are two very different things.

[60] In my view, the costs award against Mr. McLean cannot stand in light of the foregoing. However, I need not consider the matter any further. Mr. McLean indicated during the argument of this appeal that his client had provided him with the funds necessary to honour the judgment and the costs award and, therefore, I ordered that those funds be paid into court pending the release of this decision. Counsel for the respondent indicated that, in those circumstances, his client was content not pursue the matter of costs against Mr. McLean. Therefore, I will leave the matter at that.

CONCLUSION

[61] For the foregoing reasons, the appeal is dismissed with respect to the award of damages and the award of costs against the appellants. The appeal is allowed with respect to the award of costs against Mr. McLean.

[62] The funds paid into court on behalf of the defendants shall be paid out to the plaintiff or, upon a proper direction being signed to that effect by the plaintiff, to counsel for the plaintiff, in trust.

COSTS OF THE APPEAL

[63] As success on the appeal was mixed, this may not be an appropriate case to award costs to either party. However, if the parties disagree, they may make submissions on the issue of costs as follows:

(a) the respondent may make written submissions, limited to five typewritten pages, excluding attachments, within 20 days of the release of these reasons;

(b) the appellant may make written submissions, similarly limited in length, within 10 days from the receipt of the respondent’s submissions or 30 days from the date of the release of these reasons, whichever is earlier.

Ellies J.

Released: February 18, 2015

CITATION: Barbe v. Morin, 2015 ONSC 743 COURT FILE NO.: DV 95413 DATE: 2015/02/18

ONTARIO SUPERIOR COURT OF JUSTICE

YVON BARBE Respondent (Respondent)

– and –

OMER MORIN and SEAL TECH BASEMENT AND SEALING INC. Appellants (Appellants)

REASONS FOR DECISION

Ellies J.

Released: February 18, 2015

[^1]: At p. 50 of the December 6, 2013 transcript, the deputy judge indicates he was involved with an adjournment request in March. I believe that this must be a reference to the adjournment, on consent, to allow Mr. McLean to attend a continuing legal education program, although the deputy judge also indicates it had to do with Mr. Morin driving his wife to a medical appointment, which was the reason that the trial was adjourned on April 26, 2013, before a different deputy judge. In any event, nothing turns on it.

[^2]: The date upon which Mr. McLean wrote to the deputy judge, asking him to recuse himself, to which he received no reply.