E N D O R S E M E N T A S T O C O S T S FOR THE R. 57.07 Motion

COURT FILE NO.: 03-35/09 and CV-10-00412442-000
DATE: 20120920
SUPERIOR COURT OF JUSTICE – ONTARIO

RE: DEANN PARKER

Applicant

AND:

DOROTHY JANE FOCKLER, DEVRA PARKER, RHYS FOCKLER, DUNCAN MILLER, ARMSTRONG & QUAILE ASSOCIATES INC. – META FINANCIAL, TD CANADA TRUST, DR. MARTIN LEESEMENT, BARRY KATZ, AND THE PUBLIC GUARDIAN AND TRUSTEE (Court file 03-35/09)

Respondent

BEFORE: KRUZICK J.

COUNSEL:
Jerry Herszkopf , for the Respondent Rhys Fockler

Richard Coutinho , for the Applicant the Public Guardian and Trustee

Rebecca Studin, for the Respondent Shael Eisen

Gaetana Campisi, for the Respondent Alanna Kaye

Valerie Edwards, for counsel Marshall Swadron

Clare E. Burns and Mandy Seidenberg, for the Respondent Dorothy Jane Fockler

Charles Wagner for the Applicant Deann Parker

HEARD: JANUARY 18, 2012

nature of the costs issue

[ 1 ] The motion before me was brought by Mr. Rhys Fockler. He sought leave to bring motions under rule 57.07 of the Civil Rules of Procedure , R.R.O. 1990, Reg. 194 that costs be paid personally by the lawyers Mr. Swadron and Mr. Wagner. He also sought consolidation of his costs claim against the counsel with the main costs issues.

background

[ 2 ] From September 18, 2009 to September 10, 2010, Mr. Swadron represented Mrs. Dorothy Fockler as her s. 3 counsel on the Guardianship Application. Thereafter Mrs. Fockler retained new counsel. Mr. Wagner acted as counsel for the applicant, Ms. Deann Parker.

[ 3 ] Despite successive orders that Mrs. Fockler is to be represented by her own counsel, Mr. Fockler has taken the position that she should instead be represented by his then counsel, Mr. Jerry Herszkopf. When I last dealt with the issue in February 2012, the issue of Mrs. Fockler’s representation was regrettably not resolved.

[ 4 ] The applicant, Ms. Parker, has decided to discontinue the action because the numerous and complicated procedural issues Mr. Fockler raised led to considerable expense for her. However, counsel for Ms. Parker, Mr. Wagner, remains involved in the outstanding issues of costs of the main action.

[ 5 ] On January 18, 2012, I heard and dismissed Mr. Fockler’s motions to seek costs claims against the lawyers Mr. Wagner and Mr. Swardon. At that time, I also concluded that the claim should not be consolidated in the costs issues of the main action.

[ 6 ] In my endorsement of January 31, 2012, I requested submissions in writing on costs arising from Mr. Fockler’s motion. The submissions of Mr. Swadron and Mr. Wagner (Parker) were received by February 10, 2012. Mr. Herszkopf requested an extension for submissions which I allowed, but ultimately neither Mr. Herszkopf nor Mr. Fockler responded to the submissions of Mr. Wagner and Mr. Swadron.

[ 7 ] On April 27, 2012, Mr. Fockler served a Notice of Intent to Act in Person. Given the representations by Mr. Fockler’s counsel and Mr. Fockler’s subsequent correspondence with this court, I am satisfied that he has received the costs submissions of counsel. Mr. Fockler has not submitted any material responding to the costs submissions of Mr. Swadron and Mr. Wagner.

[ 8 ] Both Ms. Parker and Mr. Swadron submit they are entitled to costs on a substantial indemnity basis and provided detailed Bills of Costs. In those Bills, Ms. Parker seeks a net costs claim of $30,224.48 on a substantial indemnity scale and $24,645.11 on a partial indemnity scale. Mr. Swadron’s claim is for $22,843.04 on a substantial indemnity scale and $17,606.62 on a partial indemnity

[ 9 ] On October 20, 2011, Quigley J. imposed a timetable in an attempt to reign in the ongoing proceedings and to facilitate the hearing of the various costs claims in the action. The costs claims are all that remain in the main action. The matter was to be heard on the fixed dates of May 22-25, 2012. However, as a result of Mr. Fockler’s conduct, the timeline set by Quigley J. has now been derailed.

[ 10 ] Mr. Fockler was instructed to provide the basis of his costs claims against counsel by December 15, 2011. He missed that deadline. When he finally, in January 2012, provided the foundation of his case, I found the particulars were deficient and failed to establish the merits of his case.

ANALYSIS

[ 11 ] While there were a number of issues before me on January 18, 2012, the costs endorsement here relates only to Mr. Fockler’s motion under r.57.07 for costs to be payable personally by counsel, which I dismissed, and his motion for an adjournment or a consolidation of his claims, which I refused.

[ 12 ] I found the motions relating to costs against counsel to be unfounded. Mr. Fockler’s position was that his mother, Mrs. Fockler, should be represented by his counsel at the time. Mr. Fockler’s refusal to accept that his position may not be in his mother’s best interests. His persistence has lengthened these proceedings, caused delay and has added to the costs of the action.

[ 13 ] Of assistance to my assessment of costs are the factors set out in rule 57.01(1), which relate to the proceeding in the following manner:

(1) The relief claimed by Mr. Fockler was not granted.

(2) While the proceeding was not complex, it was complicated by the conduct of Mr. Fockler and his counsel.

(3) By invoking r. 57.07, the allegations against experienced counsel were serious and required Mr. Swadron to retain his own counsel.

(4) Mr. Fockler’s conduct unnecessarily prolonged the proceeding. Despite Quigley J.’s directions on December 28, 2011, and on January 4, 10 and 11, 2012, Mr. Fockler continued to assert that his counsel at the time should also represent his mother.

(5) All of the counsel in this case are experienced. Both Mr. Swadron and Mr. Wagner have significant experience in guardianship-related litigation and Ms. Edwards has considerable experience in the area of professional liability.

[ 14 ] I reviewed the time summaries and the time spent by counsel and engaged in a critical examination of Bills of Costs. My focus in reviewing the time spent and charges is whether the costs as claimed reflect a fair and reasonable amount that should be paid by the unsuccessful party. I bear in mind the principles discussed in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA) , 71 O.R. (3d) 291 (C.A.) and Moon v. Sher (2004), 2004 39005 (ON CA) , 246 D.L.R. (4th) 440 (Ont. C.A.).

[ 15 ] As Armstrong J.A. pointed out in Boucher , at para. 37 , the overriding principle when assessing costs is reasonableness. Both lead counsel on the file and the counsel retained by Mr. Swadron are experienced lawyers and their hourly rates as claimed were well within the reasonableness range, given their expertise and years of experience. In reviewing the accounts and the dockets (time spent and rates) as provided, I do not find the bills unreasonable. What was a simple matter was, I find, protracted by Mr. Fockler, the unsuccessful party

[ 16 ] Mr. Fockler was represented by counsel when I heard the motions, but since April 27, 2012, he has chosen to represent himself. In my limited involvement with this matter, I cannot help but conclude that Mr. Fockler’s actions have unnecessarily complicated this case. I come to this conclusion from hearing these motions and my subsequent involvement with this file. I also come to this conclusion from hearing Mr. Fockler personally as at various times during the motions that I allowed Mr. Fockler to address the court.

[ 17 ] I find that Mr. Fockler’s attempt to seek costs against counsel was ill-advised. It was yet another step fuelling the ongoing matter that Quigley J. attempted to manage and bring to an end.

[ 18 ] Unfortunately, the motion Mrs. Fockler brings against counsel could not be heard as the issues of her representation was not resolved.

conclusion

[ 19 ] In the end, I conclude that Mr. Fockler should pay the costs of the motions he brought against Mr. Wagner and Mr. Swadron. After reviewing the summaries provided and assessing the reasonableness of the bills, I fix the costs payable by Mr. Fockler at $25,000 inclusive of disbursements and GST for Ms. Parker and $18,000 inclusive of disbursements and GST for Mr. Swadron.

KRUZICK J.

DATE: September 20, 2012