CITATION: Penton v. Brandao, 2019 ONCJ 48

DATE: January 30, 2019

COURT FILE NO. D10037/17

ONTARIO COURT OF JUSTICE

B E T W E E N:

NICOLE LEE-ANNE PENTON

VICTOR PILNITZ, for the APPLICANT

APPLICANT

• and -

DERRICK BRANDAO

PATRICIA N. GORDON, for the RESPONDENT

RESPONDENT

HEARD: JANUARY 29, 2019

JUSTICE S.B. SHERR

ENDORSEMENT

Part One - Introduction

[1] The respondent (the father) seeks an order that the applicant’s (the mother’s) lawyer, Victor Pilnitz pay him costs of $800 arising out of Mr. Pilnitz’s failure to attend at Assignment Court on January 8, 2019.

[2] The father put Mr. Pilnitz on notice that he was seeking these costs personally against him pursuant to subrule 24 (9) of the Family Law Rules.

[3] Mr. Pilnitz was given the opportunity to be heard at the court appearance on January 29, 2019. He asks that no costs be ordered against him.

Part Two – The facts

[4] The parties have been engaged in litigation in this court since January 10, 2017. The issues between them are custody, access and child support.

[5] On November 19, 2018, the case management judge, Justice Carolyn Jones, sent this case to the Assignment Court scheduled for January 8, 2019 at 2 p.m. Mr. Pilnitz was present at court when this appearance was scheduled.

[6] Counsel were sent the court’s standard notice of the Assignment Court date. This notice states that parties and trial counsel are required to attend at court and be prepared to discuss both trial management issues and settlement of the case. It informs counsel that the cases will be assigned for trial on specific weeks.

[7] In the afternoon of January 7, 2019, Mr. Pilnitz faxed a letter to the court. He said that he was out of the country and mistakenly thought that he would return on January 7, 2019, when in fact his return ticket was booked for the day after Assignment Court – January 9, 2019. He asked that duty counsel speak to the case at Assignment Court. The father’s counsel indicated that she only obtained this letter the morning of Assignment Court.

[8] The mother, father and the father’s counsel all attended at Assignment Court on January 8, 2019. The court would not assign the case for trial without the presence of the mother’s lawyer. It needed him present to deal with trial management issues that would include identifying witnesses, defining trial issues, estimating the length of the trial and informing the court of any accessibility issues that had to be accommodated. The case was adjourned until January 29, 2019.

[9] The parties and counsel attended at court on January 29, 2019. Trial management issues were addressed and the case was assigned as a standby trial for the week of March 25, 2019. The court heard submissions on the father’s costs claim against Mr. Pilnitz.

Part Three – Legal considerations

[10] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867, set out that modern costs rules are designed to foster four fundamental purposes:

(1) to partially indemnify successful litigants;

(2) to encourage settlement;

(3) to discourage and sanction inappropriate behaviour by litigants and;

(4) to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules (all references to the rules in this decision are to the Family Law Rules).

[11] Subrule 24 (9) of the Family Law Rules permits the court to order a party’s lawyer to pay the costs of another party if the lawyer has wasted costs. This subrule reads as follows:

COSTS CAUSED BY FAULT OF LAWYER OR AGENT

(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.

[12] In Hunt v. Worrod, 2018 ONSC 2133, the court at paragraphs 33 and 34, set out the legal test for the court to follow in determining whether to order costs personally against a lawyer as follows:

[33] The courts have endorsed a two-part test for awarding costs against a lawyer personally:

(i) Does the lawyer’s conduct fall within the ambit of the rule in the sense that he or she caused costs to be incurred or wasted unnecessarily and without reasonable cause, and

(ii) As a matter for discretion, is an order for costs personally warranted in the circumstances?

[34] With respect to the court’s discretion, former Chief Justice McLachlin J. explained in Young v Young, [1993] 4 S.C.R. 3 at para 263:

Courts 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 offer of costs may conflict with these fundamental duties of his or her calling.

[13] In F. (V.) v. F. (J.), 2016 ONCJ 759, 2016 CarswellOnt 21166 (OCJ), the court wrote the following at paragraph 12:

12 To be clear, and contrary to the submission of Mr. Fogelman, misconduct is not a prerequisite for the application of sub-rule 24(9) if counsel has caused the other side to incur wasted or unnecessary costs. As Justice Rene M. Pomerance of the Superior Court of Justice ("SCJ") succinctly put it in D. (M.) v. Windsor-Essex Children's Aid Society: "Compensation may be appropriate even if discipline is not." (my emphasis)

[14] A costs order against a lawyer is not restricted to a situation where the lawyer has acted in bad faith. See: Covriga v. Covriga, 2010 ONSC 3030. However, the court should exercise extreme caution before ordering costs against a solicitor. See: Rand Estate v. Lenton, 2009 ONCA 251; Sambasivam v. Pulendrarajah, 2012 ONCJ 711.

[15] In controlling its own process, it may be necessary to sanction unacceptable conduct through the mechanism of costs, in part as a deterrent to others so as to maintain the integrity of the unspoken underpinnings of the processes that are so commonplace we may sometimes take them for granted. See: Weening v. Weening (Ont. SCJ); Sambasivam v. Pulendrarajah, supra.

[16] In Galganov v. Russell (Township), 2012 CarswellOnt 7400 (Ont. C.A.), the court set out the following factors to consider before making a costs order against a lawyer:

a. The first step is to determine whether the conduct of the lawyer comes within the rule; this is, whether his or her conduct caused costs to be incurred unnecessarily. To do so, the court must consider the facts of the case and the particular conduct attributed to the lawyer.

b. The rule allowing costs against a lawyer is not intended as punishment for professional misconduct. Rather, it is as indemnity for the time wasted and expenses unnecessarily expended as a result of the conduct of a lawyer.

c. Neither negligence nor bad faith is a requirement for imposing costs against a lawyer.

d. Mere negligence or conduct that does not meet the level of negligence may be sufficient to attract costs against a lawyer.

e. The costs rule is intended to apply " . . . only when a lawyer pursues a goal which is clearly unattainable or is clearly derelict in his or her duties as an officer of the court . . . "

f. In determining whether the rule applies, the court must examine "the entire course of the litigation that went on before the application judge". This requires a "holistic examination of the lawyer's conduct" in order to provide an "accurate tempered assessment". But a general observation of the lawyer's conduct is not sufficient. Instead, the court must look at the specific incidents of conduct that are subject to complaint.

Part Four – Analysis and order

[17] The first step is to determine if Mr. Pilnitz’s conduct caused costs to be incurred unnecessarily.

[18] It did. The father had to incur the cost of his lawyer preparing for and attending at Assignment Court on January 8, 2019. It was a wasted appearance as no trial management issues could be discussed and the case couldn’t be assigned for trial. The father works mornings. He did not have to miss a day of work for Assignment Court, but he did have to miss a day of work to attend at court on January 29, 2019. This would have been unnecessary if Mr. Pilnitz had attended at Assignment Court.

[19] The cost to the father did not end there. At Assignment Court the cases were prioritized and assigned trial dates in trial weeks through to the end of June, 2019. Each trial week for this period was assigned a primary and secondary trial. Simply put, this case lost its place in line because Mr. Pilnitz failed to attend at Assignment Court. It has now been assigned as a secondary trial, but the risk of it not being reached in its assigned week has significantly increased.

[20] The second step is for the court to exercise its discretion and determine if a personal order for costs against Mr. Pilnitz in this case is warranted, keeping in mind that it should exercise extreme caution before doing so.

[21] The court finds that a personal costs order against Mr. Pilnitz is warranted in this case because:

a) He mishandled this situation. He should have identified his scheduling problem much earlier and sought leave of the court, by Form 14B motion, to send a fully instructed agent to act on his behalf.

b) Faxing the court a letter the day before Assignment Court asking duty counsel to act on his behalf was not the appropriate way to handle his situation.

c) He provided inadequate notice to the father’s counsel about his scheduling issue. He did not call her in advance to explain the situation. Counsel should treat their colleagues much better than this.

d) Mr. Pilnitz’s response to the father’s costs request was disappointing as:

i) He did not apologize to the father and his counsel at court for his actions.

ii) He did not apologize to the court for his actions.

iii) He minimized the father’s costs request, saying that he understood it had only taken them 5 minutes to be at court on January 8, 2019. This submission ignores preparation time, transportation time, the father having to lose a day of work and his counsel having to clear her schedule for this appearance.

iv) He minimized the costs he caused the father to incur and the additional stress and inconvenience he caused to the father and his own client by not attending at an important court appearance.

v) He did not meet the primary objective under Rule 2 of the Family Law Rules to save time and expense.

vi) His conduct caused the parties to lose their place in the Assignment Court queue.

[22] The court reviewed the bill of costs prepared by the father’s counsel. It comes to $1,037. He is seeking $800 for costs. The request is reasonable and proportionate.

[23] The one mitigating factor is that Mr. Pilnitz is not one of the regular lawyers at this court site and clearly did not appreciate the importance of attending at Assignment Court. Assignment Court has been an important mechanism for this court to effectively manage its high volume of cases. Effective case management reduces the time it takes to have a trial heard and reduces the cost for all court users. Additional trial management is conducted at Assignment Court to define the issues, discuss ways to reduce trial time, and to allow the court to more effectively prioritize cases and accurately assess the time required for trial in order that valuable trial days are not lost. We also have judges available at Assignment Court to conduct same-day settlement conferences. Many cases are settled at these conferences or shortly after.

[24] The court wants to emphasize that in the many years it has been conducting Assignment Court this is the first time it has ordered personal costs against counsel. Counsel at this court site routinely come to Assignment Court prepared, committed to effectively managing their cases and open to fairly resolving them. By doing so, they bring credit to the family law system and improve access to justice.

[25] Mr. Pilnitz shall pay the father’s costs fixed in the amount of $600, payable in 30 days.

Released: January 30, 2019

_____________________ Justice S.B Sherr