ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-12-3694
DATE: 2013 03 26
BETWEEN:
DONNA DADD and
RANDOLPH CHONG
Applicants
– and –
HARCHARAN KAUR
Respondent
Ms. Emonds, Appearing for Mr. Klaiman, Counsel for the Applicants
Mr. D’Mello, Counsel for the Respondent
HEARD: Written Submissions
varpio, j.
REASONS ON COSTS
[1] In my reasons dated February 13, 2013, I found that an Order granted by my sister Justice Snowie contained a slip and I thus granted relief amending the Order. Having decided the “slip” issue, I had believed that my only task was to determine whether to award any costs and, if so, in what quantum and to whom. Counsel for the Respondent urges me to reconsider the substance of the motion. For the reasons that follow, I decline to revisit the “slip” issue and decline to order costs in favour of either party.
Respondent’s Further Submissions
[2] Prior to dealing with the issue of costs, I must deal with the Respondent’s package sent to me dated February 25, 2013. Within said package, the Respondent sent:
A letter dated February 25, 2013 containing further submissions going to the “slip” issue;
Costs submissions; and
Case law regarding the two aforementioned points.
[3] In the February 25, 2013 letter, Respondent counsel suggested that my judgment contained errors:
I believe the foregoing are all genuine errors resulting from the limited time for the motion and the complexity of the issues. I would respectfully request an opportunity to make submissions to the Court in regards to the foregoing [the “slip” issue] at a mutually agreeable time with opposing counsel.
[4] This statement is troubling given my initial hesitation in hearing this matter. In paragraphs 17 through 20 of my reasons as well as orally before counsel, I wrestled with my jurisdiction. I had concerns that:
Justice Snowie ought to have heard the matter; and
The matter ought to have been brought on a long motions date given the breadth and complexity of the issues to be determined.
[5] Counsel pressed the urgency of hearing the matter given the impending trial and the potential difficulty in scheduling a matter before Justice Snowie prior to that date. Accordingly, I heard the motion despite my misgivings.
[6] Now, having regard to the Respondent’s statement that the matter ought to be reconvened at a “mutually agreeable time with opposing counsel”, it might appear that the urgency in hearing this matter was overstated. I would think that counsel in a truly urgent matter would urge the Court to hear the matter at the earliest possible opportunity, as opposed to a “mutually agreeable time with opposing counsel”.
[7] Despite the foregoing, I have considered the substantive arguments that were placed before me in counsel’s letter dated February 25, 2013. What was contained in the letter could generally have been advanced at the hearing of the motion on February 2, 2013. Equally, the issues raised by the Respondent in his letter would not have changed my view of this matter given the materials filed with the Court and the transcript of the proceedings before Justice Snowie. The “slip” issue, therefore, is decided and there will be no further appearances before me.
[8] Despite my concerns regarding the apparent lack of urgency as outlined above, I will not consider this reservation as regards my decision on costs and hereby disabuse my mind of same.
Applicant’s Position
[9] The Applicant’s submit that they are entitled to costs, in essence, because:
They were successful in the matters heard February 7, 2013; and
Given the nature of the proceedings, the Respondent ought to have consented to the relief I ultimately granted.
[10] They seek $4,031.77 on a partial indemnity basis.
Respondent’s Position
[11] The Respondent suggests that he has unreasonably incurred $21,577.23 in costs as a result of the Applicant’s error and that he should be entitled to costs on a full indemnity basis payable by the Applicants and their counsel, jointly and severally pursuant to Rule 57.01. The Respondent in paragraphs 5 through 7 of his submissions, effectively indicates that such an award of costs ought to be awarded since:
Applicant’s counsel brought the original motion before Justice Snowie on short notice;
Applicant’s counsel was responsible for the slip;
Applicant’s counsel was likely negligent in failing to review the Order (either himself or with his client) which conduct was inappropriate given:
(a) the Applicants’ position in the fall of 2012 that the Respondent comply with the erroneous Order;
(b) the Applicants’ refusal to acknowledge an error in the impugned Order; and
- Applicants’ counsel ought to have moved faster to rectify the slip.
[12] Counsel for the Respondent has also provided me with Galganov v. Russell (Township), 2012 ONCA 410. Galganov applies the Supreme Court’s decision in Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3 which sets out the governing principles in awarding costs personally against a lawyer:
Did the offending lawyer’s conduct fall within Rule 57.07(1) in that her/his conduct “caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default”; and
As a matter of discretion and applying extreme caution, whether the circumstances of the case demand the imposition of costs against the lawyer. The Supreme Court in Young stated that “these awards must only be made sparingly, with care and discretion, only in clear cases, and not simply because the conduct of a lawyer may appear to fall within the circumstances described in [r]ule 57.07(1)” at para. 15.
[13] In Glaganov, the Ontario Court of Appeal overturned an award of costs made against a solicitor in the Superior Court of Justice. The Court of Appeal found that potentially negligent conduct by a lawyer that may have unduly prolonged litigation would not necessarily demand that costs be awarded against the lawyer personally:
I cannot discretely quantify what remains nor am I of the opinion that, even if Bickley [the lawyer] were negligent, his conduct would merit an award of costs against him personally, given the dictate of the Supreme Court of Canada in Young (at para. 42).
Costs – Analysis
[14] It must be first stated that the Applicant was essentially successful at the motion and cross-motion given the relief that was ultimately granted.
[15] Nonetheless, the Respondent’s solicitor is claiming that $21,577.23 was spent in a dispute regarding whether $47,633.24 or $84,448.24 would be paid out of court prior to trial. Having regard to the Respondent’s Bill of Costs, the costs incurred by the Respondent in 2013 were incurred as a result of preparing for and arguing before me on February 7, 2013. Such costs were not, therefore, “incurred without reasonable cause or to be wasted by undue delay, negligence or other default”. Rather, they were costs incurred in advancing an unsuccessful position before the Court.
[16] The time spent by Respondent counsel on this matter in the fall of 2012, as evidenced by the Bill of Costs and Exhibits “C” to “L” of the Affidavit of Harcharan Kaur sworn January 17, 2013, (“Kaur Affidavit”) dealt with a variety of issues including ordering transcripts, setting trial dates and the like as well as with the “slip” issue. Accordingly, I find that very little time was spent in 2012 as a direct result of Mr. Klaiman’s error.
[17] Further, a review of the materials found at Exhibit “K” of the Kaur Affidavit suggests that, while Mr. Klaiman’s tone with Mr. D’Mello was aggressive and arguably unwarranted given the “slip”, it does not, in my opinion, fall within the “clear case” standard as defined in Young. Dealing with counsel in difficult situations is an unfortunate part of litigation. Litigation is not, as has been quoted for several years, a “tea party”. While I agree that Mr. Klaiman ought not to have threatened costs as against Mr. D’Mello personally in his correspondence, (especially in a situation where Mr. Klaiman’s own error generated the point of contention), I do not find that such threats are sufficient to meet the Young standards especially where the Respondent effectively lost the court hearing.
[18] Costs will thus not be awarded in favour of the Respondent payable by either the Applicants or their counsel, since:
(a) the Respondent was effectively unsuccessful in the matter;
(b) it appears that very little time was spent by Respondent counsel directly as a result of the “slip”; and
(c) this is not a clear case per Young.
[19] As regards the Applicant’s claim for costs, the Applicants’ counsel made a “cut and paste” error that created the need for interim relief. Further, Applicants’ counsel unnecessarily threatened the Respondent’s counsel with the spectre of costs as against him personally in the fall of 2012. Finally, at the hearing, Applicant counsel did not furnish me with all the evidence necessary to determine the matter. It was Respondent counsel that provided me with the transcript of the hearing before Justice Snowie. Accordingly, it would be wrong to award costs in favour of the Applicants in light of this conduct, since the Applicant’s counsel made the error which gave rise to the February 7, 2013 hearing and fanned the litigation flames such that the motion and cross-motion became quite contentious.
[20] Given the foregoing analysis, neither party will be awarded costs.
Varpio, J.
Released: March 26, 2013
COURT FILE NO.: CV-12-3694
DATE: 2013 03 26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DONNA DADD AND
RANDOLPH CHONG
- and -
HARCHARAN KAUR
Reasons on costs
Varpio, J.
Released: March 26, 2013