ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS – 11 - 17526
DATE: 20120604
BETWEEN:
Carolyn Joyce Potvin Applicant – and – Nicole Annette Pennington and David James Pennington Respondents
Sarah E. Mott-Trille, for the Applicant
Jenny Friedland, for the Respondent David James Pennington
HEARD: Submissions as to costs in writing and attendance on June 4, 2012
Kiteley J.
[1] I released reasons for decision [1] in which I granted leave to the appellant David James Pennington to file a notice of appeal [2] from the decision made by Sherr J. dated July 4, 2011. At the request of counsel, the dates in paragraph 94 for filing written submissions as to costs were extended one month.
[2] Mr. Pennington did not file an appeal book, factum and book of authorities.
[3] Written submissions as to costs were made by Ms. Mott-Trille on April 19 th . In Ms. McCarthy’s submissions, she provided an affidavit sworn by Mr. Pennington on April 27 th . Ms. Mott-Trille objected to that affidavit because it was not contemplated in paragraph 95 of my earlier reasons for decision. She also objected because it included a copy of his offer to settle in the Ontario Court of Justice proceedings in that it was served September 7, 2011 and was open for acceptance until September 13, 2011, which was the day upon which his motion for an extension of time to file his notice of appeal was first scheduled to be heard. Ms. McCarthy declined to withdraw the affidavit, described the circumstances of the making of the offer, and agreed that Ms. Potvin’s offer made in January 2011 could be provided to me.
[4] On May 8, 2012, counsel attended to speak to Ms. Mott-Trille’s motion for an order striking the appeals and for security for costs. Ms. Friedland objected to the motion on the basis that it was not necessary in view of my reasons for decision and in any event, the date had not been cleared with Ms. McCarthy. In support of her motion Ms. Mott-Trille served an affidavit sworn by Ms. Potvin dated April 23, 2012. I adjourned the matter to June 4 th .
Positions taken by counsel
[5] Ms. Mott-Trille has provided a costs outline that totals $44556.53 for all fees and disbursements. For almost 110 hours, she has charged at the rate of $300 per hour which is less than the suggested maximum rate of $350 per hour in fixing partial indemnity costs according to rule 57 of the Rules of Civil Procedure . Her office is in Brampton and all the proceedings were in Toronto. She has charged $150 per hours for almost 13 hours of travel.
[6] Ms. McCarthy’s position is that the costs claimed are excessive and reflect unnecessary duplication.
Analysis
[7] I deal first with the affidavit. I agree with Ms. Mott-Trille that it ought not to have been filed. I did not provide for an opportunity to submit further evidence. I will not consider the contents of that affidavit. The only relevant fact is that Mr. Pennington was given an opportunity to pursue the appeal on certain conditions and he failed to meet the conditions.
[8] Having failed to perfect the appeal, I will dismiss both appeals. However, Ms. Mott-Trille asks that I make an order for security for costs.
[9] In paragraph 91 of my earlier reasons, I held that, although Mr. Pennington had been successful in his motion for leave to file the notice of appeal, Ms. Potvin would recover costs. While the successful party is presumed entitled to costs, I considered that the presumption had been rebutted by reason of Mr. Pennington’s behaviour including my conclusions in paragraphs 75, 76, 78, 82, 83, and 86. Pursuant to paragraph 97 of my reasons, if Mr. Pennington failed to perfect the appeals, counsel for Ms. Potvin could bring a motion before me on notice to Mr. Pennington for an order revoking the leave to file the Notice of Appeal and an order dismissing both appeals with costs on a substantial indemnity basis.
[10] In fixing the amount of costs, rule 24(11) requires the court to consider five enumerated factors, including the reasonableness or unreasonableness of each party’s behaviour in the case, and any other matter relevant to the amount of costs which may include the financial position of the parties. [3] Ms. Mott-Trille has not provided separate calculations at a higher and a lower rate. I approach this on the basis of determining whether Mr. Pennington should be required to pay the entirety of Ms. Potvin’s costs or some lesser amount.
[11] I am satisfied that Ms. Potvin should recover all of the costs referred to in the costs outline for these reasons. First, the same conduct that led to the conclusion that Mr. Pennington should pay costs mandates that Ms. Potvin’s recovery should be on a full indemnity basis. Second, as indicated in paragraph76, Mr. Pennington and his wife shared substantial assets and, on the basis of what I inferred was a sham separation, he ended up with most of them. He is a professional with a substantial income. He has the ability to pay. On the other hand, Ms. Potvin’s means are limited. Third, Ms. Potvin resisted the motion for leave to file the notice of appeal for legitimate reasons. Fourth, as I have found at paragraph 91, the information obtained through questioning was important to the outcome of the motion for leave to file the notice of appeal.
[12] I do not consider the offers made in the proceedings in the Ontario Court of Justice to be relevant.
[13] As indicated, Ms. Mott-Trille had brought a motion for security for costs pursuant to rule 24. I have some doubt whether I have jurisdiction to make such an order. However, counsel today advise that they have resolved that issue on the basis of it being dismissed and accordingly I need not decide the jurisdictional issue.
ORDER TO GO AS FOLLOWS :
[14] By June 14, 2012, Mr. Pennington shall pay costs fixed in the amount of $44556.53.
[15] The appeals from the orders of Justice Sherr dated July 4, 2011, dated July 20, 2011 and dated September 8, 2011 are dismissed.
[16] The stay imposed as a result of the appeals from those orders is lifted.
[17] The applicant’s motion for dated April 23, 2012, including the motion for security for costs, is dismissed without costs.
Kiteley J.
Released: June 4, 2012
COURT FILE NO .: FS – 11 -17526
DATE : 20120604
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Carolyn Joyce Potvin AND Nicole Annette Pennington and David James Pennington
REASONS FOR JUDGMENT
Kiteley J.
Released: June 4, 2012
[1] 2012 ONSC 1477 , 2012ONSC1477
[2] In preparing these reasons, I realized that the title of proceedings in the earlier reasons was consistent with the Ontario Court of Justice title of proceedings. In this court, Mr. Pennington was the appellant and the moving party and Ms. Potvin was the respondent in the appeal and in the motion. For purposes of consistency, I have not altered the title of proceedings for these reasons.
[3] C.A.M. v. D.M. 2003 , [2003] O.J. No. 3707 O.C.A. at para 42