Court File and Parties
COURT FILE NO.: 11-51249
DATE: 2014/06/10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
IAN GLENN
Plaintiff/Moving Party/
Responding Party in Cross-Motion
– and –
DONALD OSMUN
Defendant/Responding Party/
Moving Party on Cross-Motion
Martin J. Thompson and Kyle M. Lambert, for the Plaintiff/Moving Party/Responding Party in Cross-Motion
Michael Rappaport, for the Defendant/Respondent/Moving Party on Cross-Motion
HEARD: By Written Submissions
DECISION ON COSTS (MOTION)
LALONDE J.
[1] The plaintiff, Ian Glenn (the “plaintiff”) seeks costs of the motion and cross-motion on a substantial indemnity basis, fixed in the amount of $9,869.64 (inclusive of HST) for two reasons: (1) the Rule 49 Offer to Settle; and (2) the manner in which defendant’s counsel handled both matters.
[2] I agree with the plaintiff’s submissions on costs that I will use in this decision. The plaintiff had requested the defendant’s consent to amend his statement of claim as a result of additional information received from Donald Osmun through the discovery process. Consent was refused despite the fact that Ian Glenn supplied the information upon which the amendments were sought and despite giving Donald Osmun the opportunity to examine about anything contained in the amendments.
[3] Several actions taken by the respondent in preparation for this motion have been improper, including:
(1) Serving a Notice of Cross-Examination at hearing on the original affidavit and refusing to cross-examine the affiant earlier although available to the respondent.
Although Ottawa practice does not specifically preclude an affiant to be cross-examined in court, it is normally abhorred. The specifics of this case did not justify the affiant to be cross-examined in court, especially since the respondent had had a copy of the affidavit since February 7, 2014.
(2) The allegation of senior counsel pressuring a junior counsel to swear a false affidavit. Having been in receipt of the original affidavit for over one month, the respondent could have called counsel to advise him of the date of service issue for the affidavit of documents. Had he done so, a correction would have been immediately made to the original affidavit. Instead, the respondent chose to unnecessarily be adversarial and only provide his position when serving his responding motion materials. In addition, the respondent’s counsel made highly inappropriate comments and insinuation to a fellow officer of the court. Such comments were unnecessary and highly improper.
[4] On March 11, 2014, counsel for the plaintiff served an Offer to Settle (the “Offer”) on counsel for the defendant offering to settle upon payment by the defendant of $1,500 in fees and with a consent to dismiss the defendant’s cross-motion which went unacknowledged. Rule 49.10(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 states that where an offer to settle is made by the plaintiff at least seven days prior to a hearing that does not expire and is not accepted, and the plaintiff obtains judgment at least as favourable as the terms of the offer, the plaintiff is entitled to substantial indemnity costs from the offer date, unless the court orders otherwise.
[5] Under Rule 57.01(1) of the Rules of Civil Procedure, the court may address a number of additional factors when fixing costs, including unnecessary steps taken by a party, conduct which unnecessarily lengthened the duration of the proceeding, and any other matter which the court deems relevant to the question of costs.
[6] Impugning the integrity of both counsel for the plaintiff is relevant to the question of costs. In particular, alleging that senior counsel pressured junior counsel to swear a false affidavit and alleging that junior counsel was aware of the false affidavit and seriousness of the offence at the time of swearing.
[7] Further, the defendant took several steps in preparation for the motion and cross-motion, which are improper: (1) serving a Notice of Cross-Examination at hearing on the original affidavit and refusing to cross-examine the affiant earlier although time was made available to defendant’s counsel; (2) improperly stating that it would take 4-6 weeks to obtain a certified transcript if examinations had been scheduled earlier, demanding an adjournment of the motion and that the cross-examination be scheduled at a later time, which costs would be paid by the plaintiff; and (3) failing to acknowledge the responding Refusals and Undertaking Chart or to include that response in the Cross-Motion record, despite it being served two days prior on March 11, 2014.
The Defendant’s Position
[8] Counsel for the defendant filed his costs submissions in a memorandum that includes ten pages; he ignored my demand that costs be limited to two pages as indicated in paragraph 32 of my Reasons for Judgment.
[9] Counsel for the defendant attempts to re-argue his motion before me and I am ignoring those submissions that deal with arguments made on the motion as they are improper.
[10] The argument that plaintiff’s counsel brought his client’s action in the wrong court is reserved to the trial judge. The same applied to what counsel for the defendant argues should have been pleaded and what evidence the plaintiff should have advanced.
[11] Counsel for the defendant begins his proper submissions at page 8 of 10 of his memorandum.
[12] There has not been a long delay in answering undertakings as submitted by counsel for the defendant.
Decision
[13] The court’s discretion to award costs is set out in s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C-43 and Rules 57.01, 57.03 and 49.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Most notably, Rule 57.03(1)(a) provides that costs of a motion should be fixed and ordered payable within 30 days.
[14] Rule 6.01(1) of the Law Society of Upper Canada, Rules of Professional Conduct, provides that “[a] lawyer shall conduct himself … in such a way as to maintain the integrity of the profession.” Rule 6.03(1) provides that a lawyer shall be courteous and civil with all persons with whom he has dealings in his practice. Of particular relevant is the commentary under that rule which provides that “[a] lawyer should avoid ill-considered or uninformed criticism of the … conduct … of other lawyers.” Finally, Rule 6.03(5) prohibits the communication to another lawyer or any person “[t]hat is abusive, offensive, or otherwise inconsistent with the proper tone of a professional communication from a lawyer.”
[15] The Principles of Civility for Advocates provides further guidelines for the conduct of litigation by lawyers. Paragraph 27 states: “Counsel should not attribute bad motives or improper conduct to opposing Counsel, except when relevant to the issues of the case and well-founded.” Paragraph 28 advised “Counsel should avoid disparaging personal remarks or acrimony toward opposing Counsel.” Finally, paragraph 29 suggests, “Counsel should not … seek to create an unjustified inference based on opposing Counsel’s statements or conduct.” Counsel who appear before Ontario courts are expected to comply with the Rules of Professional Conduct, and should also adhere to the Principles of Civility, or risk sanctions by the court.
[16] The motion was not complex but I agree that counsel for the defendant raised a number of issues that had to be answered by counsel for the plaintiff. I also find that this motion was unnecessary and that counsel for the defendant should have consented to the amendments to the statement of claim. Counsel for the defendant lengthened the proceedings and added to the costs. He only provided a response and outlined his position when he filed his responding motion materials. This is unacceptable conduct that has to be condemned.
[17] I accept that the defendant has to pay costs on a substantial indemnity basis after March 11, 2014 as the plaintiff received satisfaction on all its demands pursuant to Rule 49 of the Ontario Rules of Practice.
[18] On March 14, 2014, counsel for the defendant wrote to counsel for the plaintiff as follows:
I am aware that you are a relatively new Call to the Bar and that you may have been pressured into swearing this Affidavit by more senior counsel. However, you must be aware that swearing a false affidavit is a serious offence. I highly urge you to withdraw your affidavit, sworn on February 7, 2014. I will accept service of an amended affidavit up until 5:00 pm next Thursday, March 20, 2014.
[19] On March 11, 2014, counsel for the defendant wrote to counsel for the plaintiff as follows:
Mr. Kyle M. Lambert’s affidavit was sworn on February 7, 2014. If I examined Mr. Lambert before a court reporter it would take 4-6 weeks to obtain a certified transcript. Even if we were able to arrange examinations before a court reporter in February, it is unlikely that there would have been sufficient time to obtain a transcript of the examination prior to the motion on March 21, 2014.
In this case it is far more cost effective to examine Mr. Lambert in court. However, I would be willing to examine Mr. Lambert on his affidavit this Friday, March 14th in the afternoon, provided the plaintiff bears the cost of examination and consents to an adjournment of the motion to a mutually convenient date after I have received a certified copy of the transcript.
[20] Two emails were sent to counsel for the defendant from counsel for the plaintiff as follows:
First email:
Clearly, you were available on March 21st as you went ahead and scheduled your cross-motion on the same date.
Regarding the transcripts, they can be ordered at any time on a rush basis (less than 24 hours). Your statements in this regard are simply incorrect.
Second email:
Although Ottawa practice does not specifically preclude an affiant to be cross-examined in court, it is normally abhorred. The specifics of this case do not justify the affiant to be cross-examined in Court, especially since you have had a copy of the Affidavit since February 7th, 2014, over a month ago. You and your client have not exercised the right to cross-examine with reasonable diligence. I will be relying upon Rule 39.02(3) should this proceed.
Kyle Lambert is available for cross-examination tomorrow, Thursday or Friday. Please confirm as soon as possible.
I will also be relying upon this email correspondence in seeking my client’s costs against your client on a substantial indemnity basis.
[21] I find that impugning the integrity of both counsel for the plaintiff increases in this case the quantum of costs awarded. The legal community in this city has stayed away from “sharp practice” in the past and “sharp practice” as demonstrated in this case is to be discouraged and the only way to do that in my opinion is to increase the award for costs.
[22] Counsel for the plaintiff is correct in stating defendant counsel’s improper conduct as follows:
(1) Serving a Notice of Cross-Examination at hearing on the original Affidavit and refusing to cross-examine the affiant earlier although time was made available to defendant’s counsel;
(2) Improperly stating that it would take 4-6 weeks to obtain a certified transcript if examinations had been scheduled earlier, demanding an adjournment of the motion and that the cross-examination be scheduled at a later time, which costs would be paid by the plaintiff; and
(3) Failing to acknowledge the responding Refusals and Undertakings Chart or to include that response in the Cross-Motion record, despite it being served two days on March 11, 2014.
[23] I award the plaintiff $7,000 in costs, inclusive of disbursements and HST, to be paid within 30 days by the defendant. The defendant’s position in this litigation is out of the ordinary and most of the time wild allegations as made by counsel for the defendant take extra lawyer’s time to answer.
Mr. Justice Paul F. Lalonde
Released: June 10, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
IAN GLENN
Plaintiff/Moving Party/
Responding Party in Cross-Motion
– and –
DONALD OSMUN
Defendant/Responding Party/
Moving Party on Cross-Motion
DECISION ON COSTS (motion)
Lalonde J.
Released: June 10, 2014