SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 06-FA-014490FIS
DATE: 2012/06/14
RE: David Lambert, Applicant
- and -
Buffy Edwards, Respondent
BEFORE: Justice Moore
COUNSEL: Roger Gosbee , for the Applicant at this trial.
David Lambert , In Person, the Respondent at this trial.
DATE HEARD: May 28, 29, 30, 31 and June 1, 4, 5, 6, and 7, 2012 and upon written submissions on costs.
E N D O R S E M E N T
[ 1 ] Following the trial of an issue, Buffy Edwards (“Buffy”) was awarded costs to be paid by David Lambert (“David”) in an amount that I agreed to fix following written submissions on any consequences that might flow if the parties had made settlement offers in advance of the trial.
[ 2 ] At the first Trial Management Conference, Buffy served an Offer to Settle that she acknowledges does not comply with a strict reading of Rule 18 [1] in that it was not a signed offer but as Buffy’s recovery at trial greatly exceeded her offer and as her offer remained open from the moment of its delivery through to judgment and was not accepted, she asks that I exercise the discretion afforded by Rule 18(16) and take into account her written offer to settle, its date and terms.
[ 3 ] Buffy’s written submissions do not address the fact that her offer was served upon David during the course of a case conference, except to point out that it was not included as a part of her Trial Management Brief.
[ 4 ] An offer to settle in a settlement conference brief is not an offer in accordance with Rule 18 of the Family Law Rules . As is clear from subrule 17(23) of the Family Law Rules , settlement conferences, settlement conference briefs and any statement in such a brief are confidential and are not to be disclosed. This includes any offers to settle in that brief. If parties wish to rely on an offer to settle in support of any claim for costs, a separate offer to settle should be served. [2]
[ 5 ] In this case, Buffy’s offer was described in a separate document and not in her Trial Management Brief and I have considered its content in arriving at my decision on costs. I have also considered the fact that Buffy was not represented by counsel at the time she made that offer.
[ 6 ] I have also considered the provisions of Rule 24 which enumerates factors that I must consider in setting the amount of costs that David should pay. Subrule 11 lists these factors:
the importance, complexity or difficulty of the issues;
the reasonableness or unreasonableness of each party’s behaviour in the case;
the lawyer’s rates;
the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
expenses properly paid or payable; and
any other relevant matter.
[ 7 ] The issues involved in this trial were many, complex and of critical importance to the financial futures of the parties and of their children. These issues warranted the full application of the forensic machinery of a trial.
[ 8 ] Buffy’s position, as reflected by her offer to settle as well as her conduct of the proceedings to and through this trial, has been reasonable, civil and helpful to the court. As is evident from a reading of my reasons for decision at trial, the same cannot be said for David’s position.
[ 9 ] I understand that David also delivered a written, signed offer to settle on 24 May 2012 and although he offered far less than Buffy was prepared to take in settlement and only about 30% of the amount Buffy recovered at trial, David’s offer reflects an attempt to reach a resolution before trial, something the court encourages.
[ 10 ] In Serra , [3] the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles:
to partially indemnify successful litigants for the cost of litigation;
to encourage settlement; and
to discourage and sanction inappropriate behaviour by litigants.
[ 11 ] Anything positive flowing from David’s offer was however undone by his conduct in the course of the action and at trial. An example of his inappropriate behaviour as a litigant and that calls for sanction is addressed in the course of my reasons at trial regarding his failure to comply with the rules regarding full disclosure in Financial Statements and immediate correction of Statements found to be inaccurate. [4] David’s conduct and his explanations of that conduct at trial were simply incredible and unacceptable.
[ 12 ] Rule 18 of the Family Law Rules obviously exists to encourage parties to resolve their matrimonial disputes. Equally important are all of the Family Law Rules speaking to the need and obligation for expeditious and complete financial disclosure. It is the personal responsibility of each litigant to provide such disclosure. Without it, the primary objective of the Family Law Rules “to enable the court to deal with cases justly” is not possible. [5]
[ 13 ] In addition, it must be said that David’s conduct at trial turned a short trial into one requiring several more trial days than this matter warranted. He was vague, unresponsive and argumentative in giving his evidence. His revisionist view of the history shared by the parties required close analysis by counsel and the court to ferret out the truth.
[ 14 ] To the extent therefore that Buffy’s offer to settle might be criticized for non compliance with the Rules, her entitlement to an enhanced level of costs for the trial of the action is certainly warranted.
[ 15 ] I have no difficulty accepting Mr Gosbee’s rates and the time spent in preparation for and presentation of Buffy’s case as being reasonable. Indeed, David does not submit otherwise. The disbursements claimed are modest and reasonable.
[ 16 ] David submits that Buffy represented her own interests in this matter and that her costs award should not include a counsel fee before 25 May 2012, when David believes Buffy engaged counsel, three days before the day the trial began.
[ 17 ] The Continuing Record in this action reveals and Mr Gosbee’s submissions confirm that Buffy had retained counsel at various times. Mr Gosbee submits that Buffy’s claims to counsel fee include only claims arising for work done and services rendered in connection with the issues that Klowak J bifurcated for the trial at issue. Mr Gosbee included claims for his time spent in trial preparation in the two weeks before trial, time spent after he was retained to represent Buffy at trial.
[ 18 ] The materials before me do not support claims to costs incurred before the fortnight preceding this trial nor establish work done or services rendered by timekeepers with appropriate particularity, timing or purpose. Nor can I delineate work done for Buffy by counsel earlier on appropriate to the issues bifurcated for this trial from those in aid of other issues still outstanding in the action. In the result, pre-trial costs will reflect only counsel fees for Mr Gosbee’s final trial preparation.
[ 19 ] Buffy’s costs award reflects all of the factors outlined above, the fact that she was not represented by counsel throughout the entire course of the action leading to the trial of the issues that this award addresses and my overall view of the fairness that such an award calls for. A costs award must be fair and reasonable for all concerned, including the unsuccessful party. [6]
[ 20 ] Buffy shall recover costs to the date of trial equivalent to costs on a partial indemnity basis fixed at $18,660.00 plus HST thereon of $559.80. In addition, Buffy shall recover enhanced but not full indemnity costs through the eight and one half trial days fixed at $34,000.00 plus HST thereon of $3,900.00. She shall also recover disbursements of $1,540.00. In total, David shall immediately pay $59,179.80 for all components of Buffy’s costs claims in connection with the trial of this action.
Moore J.
DATE: 5 July 2012
[1] Family Law Rules, O. Reg. 114/99
[2] Farooq v. Majeed , 2011 ONCJ 827 () at para. 14
[3] Serra v. Serra , 2009 ONCA 395 () , 2009 ONCA 395, 66 R.F.L. (6th) 40, [2009] O.J. No. 1905, 2009 CarswellOnt 2475 at para. 8.
[4] See Rule 13.(1), (12) & (15) of the Family Law Rules .
[5] Bautista v. Bautista , 2002 46582 (ON SC) , at para. 4 .
[6] Boucher v. Public Accountants Council for the Province of Ontario , 2004 14579 (Ont. C.A.)