COURT FILE AND PARTIES

COURT FILE NO.: 02-FL-2665-C4
DATE: 20121012
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Suzette Carrie Robertson, Applicant

AND

Mark Noel Quinn, Respondent

BEFORE: J. Mackinnon J

COUNSEL: Michael Rappaport, for the Applicant

Robie S. Loomer, for the Respondent

HEARD: October 9, 2012

ENDORSEMENT regarding costs

1The Respondent seeks full costs in the amount of $32,427.76 for a two day trial on the issue of child support. The Applicant sought to have the court impute $126,000.00 per annum income to the Respondent effective May 1, 2010 and to have the set off amount of child support paid to her. The parties have one son who lives with each of them for equal periods of time.

2The outcome of the case was that some income was imputed to the Respondent and his income was determined to be:

• $55,508.00 in 2011

• $59,130.00 in 2012

• $69,130.00 for 2013

3The Applicant’s income was never in dispute. Applying the straight set off approach for child support, the result was that the Applicant owed the Respondent a total of $924.00 to bring 2011 and 2012 (to the end of the year) into good standing. The Respondent is expected to owe her $40.00 per month throughout 2013 based on the assumption that her 2012 income will continue unchanged.

The Offers

4The Applicant made an offer on September 21, 2012. She offered to settle for $550.00 per month ongoing child support plus arrears back to May 1, 2010 in the amount of $16,500.00. This offer reflected no compromise of her formal position.

5The Respondent made two offers. The first was that the Applicant would pay him $100.00 per month from January 1, 2012 and that for 2013, their line 150 incomes would be used to establish the set off amount. The Applicant was also required to pay him $3,500.00 in costs. This offer called for the Applicant to pay somewhat more to the Respondent for 2012 than was ordered. Its effect would have continued to favour the Respondent in 2013 because of the annual amount of $9,130.00 I imputed as additional income to him.

6The Respondent’s second offer was made on September 27, 2012, shortly before trial. It was less advantageous to the Applicant than the previous offer. It would have required her to pay $100.00 per month commencing October 1, 2010 plus 50% of his partial recovery costs, by then clearly in excess of $3,500.00.

7Accordingly, neither party matched or bettered their offer.

8As between the parties, the Respondent’s offers were clearly more reasonable and conducive to settlement.

Other Factors

Position of the Respondent

9In support of his claim for full costs, the Respondent relies upon his success, upon the fact that the Applicant required her motion to change to go to trial rather than to be heard as a motion, and to redress what he says was bad faith conduct by the Applicant.

10The Respondent is clearly the successful party. In saying so, I must also note that the Applicant had no evidence to present on her two key issues:

• That the Respondent had voluntarily and for unreasonable financial reasons, left his previous employment; and

• That the Respondent had work available to him now at his prior higher level of income.

11I also agree that the matter could have proceeded as a one day motion on the record rather than as a two day trial.

12The allegation of bad faith is that the Applicant listed by names two of the Respondent’s political clients on her witness list, noting that she would also call others whom she left unnamed.

13The Respondent says this was an attempt to “blackmail” him into settlement because knowledge that his clients had been subpoenaed to testify in his personal matter would ring the death knell to his business.

14The Applicant testified that, notwithstanding what she said in her witness list, she never intended to call them, but was hoping for a settlement.

15My conclusion is that naming two politicians and others as yet unnamed as witnesses was a deliberate tactic taken by the Applicant in the hopes it would pressure the Respondent into a settlement that would not otherwise be available to her. She admitted she never had any intention of calling them as witnesses, but she did not tell the Respondent this. He felt obliged to disclose to one client the fact that he was named on the witness list and is of the view that this has already had an adverse impact on that business relationship. In my view, the strategic listing of public officials on a witness list with no intention to actually ever call them to the stand, rather as a trial tactic aimed to force a settlement, amounts to bad faith.

Position of the Applicant

16The Applicant maintains that the case was prolonged by the Respondent’s recalcitrant disclosure. I find that the Respondent did comply with the Master’s Order made on October 19, 2011 in all but one respect. The Master ordered the Respondent to produce a copy of any loan applications for him or his business since January 1, 2010 to date. The Respondent testified that he applied twice for a line of credit for his business. No production was made of these documents. Counsel justified this by drawing a distinction between a loan and a line of credit. I am not impressed. The clear intent of the Master’s Order was that the Respondent produce documents and information he had provided to lending institutions in order to compare it to the information that he provided to the Applicant and, ultimately, to the court. In my view, the decision not to include the applications for lines of credit was a serious omission from the court ordered disclosure.

17Two other documents were tendered by the Respondent during the trial. Both of them were potentially very relevant. I declined to receive either because the information was favourable to the Respondent’s case and had not previously been disclosed. In fact, he had specifically refused to produce some of the information. This is not a practice that finds favour with the court.

Discussion

18In my view, this case should have ended at the disclosure stage. At that time, the Applicant was self-represented. She conducted her own review of the Respondent’s financial and business records. My conclusion is that she required professional advice at that early stage in order to objectively appreciate the facts and the probable outcome of her case.

19I have already briefly noted some of the important omissions of evidence from her case as presented at trial. There were others. One explanation offered was that she lacked the financial ability to obtain accounting or industry specific advice. The situation she now faces, with her trial counsel’s bill of $12,000.00 and the Respondent’s claim for over $32,000.00 in costs, calls into question the wisdom of that conclusion.

Disposition

20The Respondent was successful and on the face of it is entitled to costs. The Applicant’s misguided attempt to lever a settlement is an aggravating factor justifying a higher than normal award. So also is her litigation conduct in requiring this motion to change to go to trial and proceeding without any evidence to support her two main allegations.

21The Respondent’s failure to provide his applications for the business line of credit and his attempt to tender relevant but previously undisclosed documents at trial are also factors relevant to costs. I have considered whether this misconduct is such that he should be deprived of costs. The strong policy reasons which are designed to discourage conduct such as the Applicant’s attempt at leverage are matched by equally strong policy reasons requiring full and fair disclosure. The Respondent did not meet that standard in the two aspects noted.

22Although the Respondent testified about applying twice for a business line of credit, he was not cross-examined about it, and I did not learn until costs submissions that the applications had not been produced. Had Mr. Rappaport requested production during the trial, I would have ordered it.

23Nonetheless, I have concluded that some costs should be awarded to the Respondent. Generally a finding of bad faith results in costs being awarded on a full recovery basis, at least in relation to the issues affected by the bad faith. In the circumstances here, justice is achieved by treating the parties’ litigation conduct as offsetting factors.

24Having done that, the Respondent remains the successful party, the trial required two days rather than one day of motion time, his offers were far more reasonable and conducive to settlement than were the Applicant’s, and the evidentiary foundation for her claim was very weak.

25Accordingly, I approach the question of costs on the basis of partial recovery. I have reviewed the Respondent’s Bill of Costs and have reduced the fees by $5,850.00 to discount administrative work and to reduce the time charged for motion and trial preparation. The rest of the account is reasonably within the expectations of the other party. Costs are awarded to the Respondent in the all inclusive amount of $16,000.00 payable by the Applicant. These costs were all incurred in respect to the issue of child support which, in this case, is an entitlement each parent has against other in the set off amount for shared custody. Accordingly, these costs are enforceable by the Director of the Family Responsibility office.

J. Mackinnon J