COURT FILE AND PARTIES

COURT FILE NO.: FS-503-13

DATE: 2014-07-03

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Michelle Gillespie, Applicant/Responding Party

AND:

Robert Gillespie, Respondent/Moving Party

BEFORE: The Honourable Mr. Justice G. A Campbell

COUNSEL: Brian R. Kelly, for the Applicant/Responding Party

Robert Gillespie, Self-represented Respondent/Moving Party

COSTS ENDORSEMENT

[1] Mr. Gillespie’s latest motion was unsuccessful for the reasons I set out in my Endorsement of June 19, 2014. As a result, Ms. Gillespie is presumed to be entitled to her costs for successfully resisting that motion: Rule 24(1). Her counsel seeks an Order for costs of $8520.20, inclusive of tax for research, preparation and attendance to argue the motion which consumed under three hours of counsel’s time that day.

[2] Rule 24(11) sets out the six factors that I am to consider in order to arrive at my costs decision. Those factors are:

a) The importance, complexity or difficulty of the issues;

b) The reasonableness or unreasonableness of each party’s behaviour in the case;

c) The lawyer’s rates;

d) The time properly spent on the case, including conversations between the lawyer and party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

e) Expenses properly paid or payable; and

f) Any other relevant matter. (my emphasis added)

[3] As well, Mr. Kelly served Mr. Gillespie with a Rule 18 Offer to Settle on May 27, 2014, well before the motion was argued and only one day after Mr. Gillespie e-mailed Mr. Kelly a copy of this Motion to Change.

[4] According to the dockets submitted with the Costs Outline, Mr. Bernard spend six hours and forty minutes on May 26, 2014 on this matter including preparing the Offer to Settle served on 27 of May. Had Mr. Gillespie accepted that Offer on the 27^th of May, Ms. Gillespie’s law firm would have avoided investing almost 17 more hours on the motion (ten more by Mr. Bernard and 6.3 by Mr. Kelly at rates of $225 and $350/hour). Those extra hours of effort generated fees of $4455 of the total $8322.45 in fees sought. Mr. Kelly’s preparation and attendance on June 19 cost Ms. Gillespie $1661.10 and is part of that total.

[5] Mr. Gillespie’s “Hail Mary” attempt to set aside Sloan, J.’s order of November 5, 2013 in the face of my Order of June 10, 2013 and his intransigence in (still) ­not serving or filing any financial disclosure at all, was, according to the Rules, doomed from the outset: see Rule 19(10):

Failure to Follow Rule or Obey Order

If a party does not follow this rule or obey an order made under this rule, the court may, on a motion, do one or more of the following:

1. Order the party to give another party an affidavit, let the other party examine a document or supply the other party with a copy free of charge;

2. Order that a document favourable to the party’s case may not be used except with the court’s permission; or

3. Order that the party is not entitled to obtain disclosure under these rules until the party follows the rule or obeys the order.

4. Dismiss the party’s case or strike out the party’s answer.

5. Order the party to pay the other party’s costs for the steps taken under this rule, and decide the amount of the costs.

6. Make a contempt order against the party.

7. Make any other order that is appropriate. (my emphasis added)

[6] Mr. Kelly also correctly reminds me in his submission of the provision of Rule 18(14) as follows:

Costs Consequences of Failure to Accept Offer

A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one date before the motion date.

2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.

3. The offer does not expire and is not withdrawn before the hearing starts.

4. The offer is not accepted.

5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer. (my emphasis added)

[7] Although I am surprised by the extent of the effort invested by Mr. Bernard and Mr. Kelly (almost ten hours on the Factum and almost five hours legal research) to respond to what appears to be a quixotic attempt by Mr. Gillespie to set aside a valid court order in the face of his continued non-compliance with a previous court order for disclosure of June 10, 2013, the Rules are both clear and emphatic. Courts will not respond positively to litigants who seek discretionary relief when they do not first rectify their non-compliance and come to the court with “clean hands”.

[8] Mr. Gillespie is the author of his own dilemma. Having created the problem, he cannot now plead his alleged (but not proven) impecuniosity. His “failing to provide the most basic financial disclosure, is litigation conduct deserving the censure of the court” : see paragraph 4 of Westendorp v. Westendorp (2000) 22538, MacKinnon, J. (ONSC).

[9] Once served, Ms. Gillespie had no option available to her other than to oppose the motion. It ill-behooves Mr. Gillespie to now seek to deprive her of repayment for any of the legal expenses that she apparently now faces.

[10] Normally, I would follow the principles enunciated in the cases of Pagnotta v. Brown (2002) CarswellOnt 1666 (ONSC); Gale v. Gale (2006), CarswellOnt 6328; Hackett v. Leung (2005) 42254 (ONSC); and Zesta Engineering Ltd. V. Cloutier 2002 25577 (ON CA), [2002] O.J. No. 4495 (OCA) that a costs award should represent a fair and reasonable amount rather than any exact measure of the actual costs for Ms. Gillespie; and should reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created; and should use a flexible approach to costs rather than a rigid adherence to hours-billed-times-the-hourly-rate-charged approach.

[11] However, in this case, given Mr. Gillespie’s unreasonable and intractable resistance to make any financial disclosure at all, I find that the “fair-and-reasonable-amount” approach to deciding a costs award that responds to these particular circumstances “justly” (see Boucher v. Public Accountants Counsel 2004 14579 (ON CA), [2004] O.J. No. 2634 (OCA)) requires the court to allow the full amount of costs sought by Ms. Gillespie in order that Mr. Gillespie’s actions are indeed “censured” (Westendorp)

[12] Accordingly, Mr. Gillespie is ordered to forthwith pay Ms. Gillespie $8520.20 including disbursements properly incurred and applicable taxes.

[13] Although Mr. Gillespie based much of his claim and spent much of his time at the return of his motion focussed on the impact of the Sloan, J. order of November 5, 2013 on his relationship with his children, a significant part of his motivation to set aside that order relates to his child support obligation.

[14] Accordingly, I find that 75 percent of these costs ordered were incurred with respect to that portion of the Sloan, J. order that addresses child support issues. These costs are “legal fees or other expenses arising in relation to support or maintenance” and as such, should be enforceable by the Director of F.R.O. (see s. 1(1)(g) of the Family Law Responsibility and Support Arrears Enforcement Act 1996, S.O. 1996, C.31 (as amended) and Wildman v. Wildman (2006), 2006 33540 (ON CA), 82 O.R. (3d) 401 (C.A.)). I so order.

G. A. Campbell J.

Date: July 3, 2014