COURT FILE NO.:05-000073

MOTION HEARD: JUNE 13, 2011

DATE: May 11, 2012

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ROBERT MONETTE and GINGER MONETTE, Plaintiffs

• and –

MARTIN TEBO and DONNA TEBO and BRUCE SELLERS, Defendants

• and –

MARTIN TEBO and DONNA TEBO, Plaintiffs to Counterclaim

• and –

ROBERT MONETTE, GINGER MONETTE, JOHN PETER ROXON and JULIE ELAINE MARGARET ROXON, Defendants to Counterclaim

BEFORE: JUSTICE ABRAMS

COUNSEL: KURT PEARSON, for the Plaintiffs/Defendants to Counterclaim, Robert Monette and Ginger Monette

JOHN RYDER-BURBIDGE for the Defendants/ Plaintiffs to Counterclaim, Martin Tebo and Donna Tebo

LUCIENNE MacLAUCHLAN, (Former) Solicitor for the Plaintiffs/Defendants to Counterclaim, Robert Monette and Ginger Monette

JOHN GRANGE, for the Defendants to Counterclaim, John Peter Roxon and Julie Elaine Margaret Roxon

COSTS ENDORSEMENT

Background

[1] This matter was initially scheduled to proceed to trial on Monday, February 8, 2010, for five days.

[2] On February 8, 2010, Ms. Harnett wrote to counsel alerting them to the fact that the trial judge had taken ill. Ms. Harnett was advised, however, by the Regional Manager, Judicial Services in Ottawa that the judge should be able to proceed on Tuesday, February 9, 2010.

[3] By correspondence dated February 9, 2010, Ms. Harnett wrote to counsel advising that both the judge and Mr. Tebo were ill, therefore, the trial would not be proceeding. Moreover, the length of the trial was increased from five to eight days. But for these unfortunate developments, the Monettes and their counsel, Ms. MacLauchlan, were prepared to proceed with the trial on February 8 or 9, 2010.

[4] At assignment Court on March 12, 2010, the mater was scheduled for an eight day trial to commence June 13, 2011.

[5] By Order of the Law Society of Upper Canada, dated March 25, 2011, Ms. MacLauchlan was suspended for thirty days commencing April 27, 2011, and continuing indefinitely until certain conditions were met.

[6] There is no indication that the Monettes were alerted to Ms. MacLauchlan’s suspension until they received a telephone call from Mr. Ryder-Burbidge on the afternoon of June 8, 2011, just five days prior to the start of trial.

[7] The Monettes moved quickly to contact new counsel, Mr. Graham Sirman, in hopes of salvaging the trial set to begin on June 13, 2011.

[8] The matter came before me on June 13, 2011. Mr. Ryder-Burbidge attended on behalf of the Tebos. The Monettes were present and unrepresented. Ms. MacLauchlan was present in the body of the court room while under suspension. Mr. Grange for the Roxons attended by way of telephone conference.

[9] On oral motion, the Monettes requested an adjournment of the trial, which was unopposed by the other parties. My endorsement of that date describes the factual basis for the relief requested and ordered.

[10] On June 13, 2011, dates were canvassed with Ms. Harnett in hope of expediting the trial. The weeks of August 8, 15, 22 and 29 were available. I agreed to make myself available to hear the matter anytime during the month of August.

[11] Mr. Ryder-Burbidge indicated that his preference would be to have the matter adjourned to the Assignment Court on June 17, 2011. He believed that he was available to conduct the trial, but wanted to confirm the availability of certain witnesses.

[12] Mr. Ryder-Burbidge then indicated his wish to argue the issue of costs thrown away for trial preparation leading up to June 13.

[13] Mr. Ryder-Burbidge was seeking costs in the range of $21,000.00 not including disbursements, which he conceded would have been incurred in any event. Mr. Ryder-Burbidge further conceded that if the trial was rescheduled to a date in August, 2011, he estimated that 80% – 90% of the $21,000.00 fee component could be salvaged. In the event of a trial date scheduled after August, he estimated that 50% of the trial preparation would have to be repeated.

[14] In the circumstances of the matter being adjourned to the Assignment Court on June 17, 2011, deciding the issue of costs on June 13th was premature. Accordingly, I indicated that I would hear further submissions once the trial date was scheduled.

[15] Prior to June 17th, the Monettes retained Mr. Pearson to conduct the trial. Mr. Pearson was prepared to proceed with the trial during the weeks of August 22 and 29, 2011.

[16] For reasons that are not entirely clear, the trial did not go ahead in August, 2011, notwithstanding that Court time was freed up, I was prepared to hear the matter, and the Monettes were prepared to proceed, with counsel.

[17] Mr. Ryder-Burbridge contends that a key witness for the defendants, Mr. Paul McCoy, from the Quinte Conservation Authority, was unavailable to testify during the month of August, 2011.

[18] Ms. MacLauchlan deposes, however, in her affidavit sworn November 9, 2011, that she spoke with Mr. McCoy who confirmed his ability to testify on any of the dates available in August, 2011. To recall, had the trial proceeded in August, 2011, Mr. Ryder-Burbidge estimated that 80% - 90% of the trial preparation could have been salvaged.

Positions of the Parties

[19] Mr. Ryder-Burbidge points to the fact that the Law Society Order suspending Ms. MacLauchlan was made on March 25, 2010. The period of suspension began on April 27, 2010, and could not have ended before May 28, 2010. Accordingly, Ms. MacLauchlan would have had, at most, approximately two weeks to prepare for the trial.

[20] In those circumstances, Mr. Ryder-Burbidge contends that it should have been reasonably foreseeable to Ms. MacLauchlan that there was at least a risk:

(a) She would not be out of suspension by the start of the trial; or

(b) That if she was out of suspension, there would be insufficient time for her to commence trial preparation prior to the start of the trial.

Accordingly, the Monettes would have had to ask for an adjournment in either case. Moreover, had Ms. MacLauchlan brought the issue of her suspension to light back in March, 2011, when the Order was issued, the Monettes could have retained new counsel to prepare for the June 13th trial date. Further, there were a number of Assignment Court dates between March and June, 2011, when Ms. MacLauchlan could have brought the case forward to address the increasing risk that she would not be able to conduct the trial. While this approach may not have completely avoided costs thrown, it would have mitigated the situation, particularly in the period leading up to May 20, 2011, after which Mr. Ryder-Burbidge began his trial preparation in earnest.

[21] Mr. Ryder-Burbidge further contends that while the Monettes may have been kept in the dark by Ms. MacLauchlan regarding her suspension, they are nonetheless responsible for the delay and costs thrown away based on the legal doctrine of principle and agent. Further, to the extent that they are personally liable for costs, they can make a claim over against Ms. MacLauchlan. In any event, his clients bear no responsibility for the delay and resulting costs.

[22] Ms. MacLauchlan deposes in her affidavit that she and her clients were prepared to proceed with the trial on February 9, 2010, but for the unexplained illness of Mr. Tebo. There remains a question as to whether or not another trial judge could have been made available in the absence of Kershman, J. who was originally scheduled to hear the matter.

[23] Ms. MacLauchlan further deposes that it was her belief that her suspension would be up on April 26, 2011, which would have allowed her to represent the Monettes at trial, with ample time to prepare. To that end, she deposes that much of the trial preparation was completed prior to her suspension. Accordingly, a simple review was all that was necessary immediately prior to the trial date.

[24] Unfortunately the Law Society audit process was protracted for a number of reasons. When it became clear to Ms. MacLauchlan that the audit process would not be completed in time to represent the Monettes, concurrent with that revelation she received a call from her clients advising that Mr. Ryder-Burbidge had called them. She met with the Monettes immediately and they took steps to engage new trial counsel, Mr. Sirman.

[25] As a result of personal circumstances, Ms. MacLauchlan made an assignment in bankruptcy in early June, 2011.

[26] Finally, Ms. MacLauchlan deposes that her clients and their new counsel, Mr. Pearson, were available and prepared to conduct this trial in August, 2011. To that end, there remains a question as to whether or not the defendants’ witness, Mr. McCoy, was available. Mr. Ryder-Burbidge contends that he was not. Ms. MacLauchlan deposes that he was. The matter may be clarified by the trial judge, if and when Mr. McCoy is called to testify. On the evidence before me, there is no way to verify the current, competing claims before the Court.

[27] Mr. Pearson contends that the issue of costs, if any, should be left to the discretion of the trial judge. Alternatively, if the Court is inclined to award costs at this stage in the proceeding, then such an Order should be made personally against Ms. MacLauchlan.

[28] Mr. Pearson asserts that the Monettes were blameless in respect of the adjournment on June 13, 2011. They were prepared to proceed with the trial and they reasonably believed that their former solicitor was too. Moreover, they were prepared to proceed back on February 9, 2010 when, for reasons that are not completely clear, Mr. Tebo could not proceed.

[29] When the Monettes became aware of Ms. MacLauchlan’s suspension, they moved quickly to engage Mr. Sirman.

[30] Thereafter, and prior to the June 17, 2011, assignment court date, they retained Mr. Pearson.

[31] The Monettes were prepared to proceed with the trial in August, 2011, but Mr. Ryder-Burbidge and his client’s would not commit to a date.

[32] Finally, while the Tebos were not responsible for the loss of the June 13, 2011, trial date, neither were they. An award of costs against them will create an unjust result, whereby the individuals not responsible for the delay would be paying for it.

Analysis

[33] The Monettes bear no responsibility for the loss of the initial trial dates in February, 2010. There remains a question as to whether the Tebos would have been prepared to proceed if a replacement could have been found for Kershman, J. In any event, the Monettes made no claim for costs at that time.

[34] The Monettes bear no direct responsibility for the loss of the second trial in June, 2011. On the evidence before me, there is nothing to indicate that they had any forewarning of Ms. MacLauchlan’s suspension in the days leading up to the trial, until they received the call from Mr. Ryder-Burbidge. When they were made aware, they moved quickly to engage new counsel.

[35] To the extent that any ward of costs is made personally against Ms. MacLauchlan or any claim could be advanced against her by the Monettes, both remedies appear to be moot in the face of Ms. MacLauchlan’s assignment in bankruptcy of early June, 2011.

[36] Although generally speaking costs are to be assessed and awarded at each step in the proceeding, regretfully this case cries out for costs to be determined by the trial judge. The very difficult and unfortunate facts that the parties have experienced in getting this matter on for trial cannot be wished away; they are what they are, to speak plainly. The trial judge will be in a better position to determine, for example, whether the matter could have proceeded in August, 2011, when, as Mr. Ryder-Burbidge concedes, the costs thrown away would have been mitigated in the order of 80% to 90%. Moreover, the trial judge will be in a better position to determine the issue of costs based on all circumstances giving rise to the final result.

Held

[38] The issue of cost to be awarded, if any, shall be left to the discretion of the trial judge.

ABRAMS, J.

DATE: May 11, 2012