Court File and Parties
Court File No.: 515/10 Date: 2012-09-07
Ontario Court of Justice
Re: Snober Chaudry – Applicant
and
Faisal Aquil Khan - Respondent
Before: S. O'Connell
Counsel:
- Haig DeRusha, for the Applicant
- Michael Chun, for the Respondent
Costs Endorsement
Background
[1] The Respondent, Mr. Faisal Khan, is seeking costs for the time spent to argue a contested adjournment of a case conference scheduled for March 30, 2012. He is seeking compensation for legal costs in the amount of $1,412.50.
[2] This matter was before me for a scheduled case conference on March 30, 2012. The case conference proceeded on that date, but only on the issue of temporary access. I made the following endorsement:
"Mr. Chan, M., counsel for Mr. F. Khan, present today;
Ms Chaudry, in person;
Mr. Tensuda, counsel for the child, having been recently appointed, but has not met the child as he was just appointed.
This matter was set for a Case Conference today, at a date agreed upon by counsel at the last Case conference. Two days before this Case Conference, counsel for Ms. Chaudhry, Mr. DeRusha, advised Mr. Chun that he was not attending the Case Conference because he was on vacation. Mr. Chun had already met with his client and served and filed his Case Conference Brief.
On the Case Conference date, Ms. Chaudhry attended on her own because her counsel advised her the day before that he could not attend without a further retainer and then requested that she sign a Notice of Change of Representation and attend Court alone today.
This is not professional conduct. There are rules in place regarding the removal of counsel of record in proceedings.
It is true that the O.C.L. has just been appointed and needed to meet the child, however, there were still ongoing access and support issues to negotiate in the interim.
The parties have been able to negotiate further temporary access pending completion of the O.C.L.'s investigation so some progress was made today, however, Mr. DeRusha or someone from his office should have attended today.
Having reviewed the Temporary Minutes, there will be a Temporary Court Order in accordance with the Minutes filed.
Costs of today's appearance reserved to the next Court date. Mr. DeRusha to attend the next court date to provide the Court with an explanation, if any, as to why costs should not be awarded against him personally.
Adjourned to June 14, 2012 @ 3:00 p.m. for a Continuing Case Conference. Counsel to fax a copy of this endorsement to Mr. DeRusha's office."
Respondent's Position
[3] The respondent submits that he should not have to bear the costs for time lost on negotiating whether the March 30th case conference should be adjourned for the following reasons:
The case conference was adjourned on consent to the date of March 30, 2012 from December 21, 2011;
Counsel for the applicant had three months to advise the respondent's counsel that he was taking a scheduled vacation on March 30th 2012 and therefore could not attend;
A request for an adjournment three days before the scheduled case conference is insufficient notice as the respondent and his counsel had already met to prepare for the case conference;
Notwithstanding the request for the adjournment by the Office of the Children's Lawyer, the case conference had to proceed to address the respondent's access as his last scheduled access visit was March 24, 2012 and no further access had been negotiated beyond this date.
[4] The respondent argues that the request by applicant's counsel for an adjournment without proper notice or consideration of the above facts resulted in wasted costs caused by his conduct. He submits that counsel for the applicant should therefore be personally responsible for the costs incurred by the respondent, in accordance with Rule 24(9) of the Family Law Rules. Alternatively, the applicant herself should bear these costs.
Applicant's Counsel Position
[5] Mr. DeRusha, former counsel for the applicant, submits that costs should not be against him personally or against Ms Chaudry for the following reasons:
No costs were wasted by him or Ms Chaudry.
Ms. Chaudhry had indicated in previous correspondence that she did not wish the DeRusha Law Firm to attend, and had in fact served a Notice of Change of Representation on her own. It was this Notice of Change of Representation indicating that she wished to represent herself that was a factor in the error being made by lawyers at DeRusha Law Firm in deciding not to have anyone attend the case conference.
Although an error in judgment had been made by lawyers at DeRusha Law Firm in not attending, this error was not made totally unreasonably. Mr. DeRusah did not give specific guidance to his firm lawyers in advance of his departure for vacation, because it was anticipated that the case conference would be adjourned on consent based on the letter from the Children's Lawyer, indicating that he would not have his report ready by March 30, 2012. This is not a case where the lawyer blatantly ignored the Rules of Professional Conduct, nor the Family Law Rules. It was expected that the lawyers of DeRusha Law Firm would attend on any motion or proceeding that needed a lawyer's attendance in Mr. DeRusha's absence. In addition, efforts were made to address the issue of the respondent's access in advance of the case conference so that the conference could be adjourned on consent. The respondent's counsel declined to participate in these discussions.
The Law
[6] Rule 24 of the Family Law Rules, O. Reg. 114/99, governs the determination of costs in family law proceedings and the sections relevant to the circumstances of this case are as follows:
- (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party's own costs or ordered to pay all or part of the unsuccessful party's costs.
(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept.
(6) If success in a step in a case is divided, the court may apportion costs as appropriate.
(7) If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step, the court shall award costs against the party unless the court orders otherwise in the interests of justice.
(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.
(9) If a party's lawyer or agent has run up costs without reasonable cause or has wasted costs, the court may, on motion or on its own initiative, after giving the lawyer or agent an opportunity to be heard,
(a) order that the lawyer or agent shall not charge the client fees or disbursements for work specified in the order, and order the lawyer or agent to repay money that the client has already paid toward costs;
(b) order the lawyer or agent to repay the client any costs that the client has been ordered to pay another party;
(c) order the lawyer or agent personally to pay the costs of any party; and
(d) order that a copy of an order under this subrule be given to the client.
(10) Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs.
[7] In Serra v. Serra, 2009 ONCA 395, at paragraph [8], the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles:
(1) to partially indemnify successful litigants for the cost of litigation;
(2) to encourage settlement; and
(3) to discourage and sanction inappropriate behaviour by litigants.
Analysis
[8] In my view, this is not a case for costs personally against Mr. DeRusha or against Ms Chaudry. The case law is clear that costs against a lawyer personally should only be granted in exceptional circumstances. See Galganov v. Russell (Township), 2012 ONCA 410. The governing principles in awarding costs personally against a lawyer were set out by the Supreme Court of Canada in Young v. Young, [1993] 4 S.C.R. 3 at pages 135 to 136:
"The basic principle on which costs are awarded is as compensation for the successful party, not in order to punish a barrister. Any member of the legal profession might be subject to a compensatory order for costs if it is shown that repetitive and irrelevant material, and excessive motions and applications, characterized the proceedings in which they were involved, and that the lawyer acted in bad faith in encouraging this abuse and delay. It is clear that the courts possess jurisdiction to make such an award, often under statute and, in any event, as part of their inherent jurisdiction to control abuse of process and contempt of court. ... [C]ourts must be extremely cautious in awarding costs personally against a lawyer, given the duties upon a lawyer to guard confidentiality of instructions and to bring forward with courage even unpopular causes. A lawyer should not be placed in a situation where his or her fear of an adverse order of costs may conflict with these fundamental duties of his or her calling." [Emphasis in original.]
[9] It appears that Ms Chaudry chose to be self-represented at the case conference and served her Notice of Change of Representation the day before the case conference because she could no longer afford counsel. Although it was an error in judgment not to have a proper representative at the case conference on March 30, 2012, given the very short notice of the change in representation, the case conference was not a wasted appearance. Temporary minutes regarding access were entered into on that day. Further, it was not unreasonable to assume that the case conference would be adjourned in light of the Children's Lawyer's request for an adjournment.
[10] I am also of the view that each party should bear their own costs for the time spent negotiating the adjournment of the case conference. Mr. DeRusha's firm attempted in good faith to resolve the issue of access prior to the case conference so that the adjournment could proceed on consent, thereby saving both parties the cost of an attendance. The attendance on March 30th was necessary because the access schedule could not be negotiated in advance of the case conference despite efforts to do so. The case conference ultimately was productive as a further schedule of access was agreed upon and temporary minutes of settlement were executed pending the completion of the Children's Lawyer's investigation and the scheduling of the next case conference date.
Conclusion
[11] In conclusion, there will be no order for costs against Mr. DeRusha personally or against Ms Chaudry.
Justice Sheilagh O'Connell
Date: September 7, 2012