COURT FILE NO.: 46697-12
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Harinder Singh Sangha, Applicant
AND:
Barinder Kaur Sangha, Respondent
BEFORE: The Honourable Mr. Justice G. A Campbell
COUNSEL:
Diane J. LaRocque, for the Applicant
David P. Olsen, for the Respondent
James H. Bennett For Cook/Nanda/Hussein
HEARD: June 17, 2014
COSTS ENDORSEMENT
Background
1This issue arises from submissions made by Ms. LaRocque on September 13, 2012 when she and Mr. Olsen appeared before me to argue two motions, one from each party, found at Tabs 4 and 17 of the Continuing Record. The heads of relief sought included a finding of urgency to proceed before a Case Conference; interim and final custody; Police Assistance; production of Police and CAS records; child support; spousal support; delivery of personal belongings; non-removal of child from area; deposit of passports; non dissipation of assets; and costs.
2The history of the marriage of these parties and the litigation between them is well known and I decline in this Endorsement to again review same.
3However, to give some context for what follows this overview and timing of the facts are relevant.
4The parties married and have a son Rajan, who, when Ms. Sangha separated from Mr. Sangha on May 29, 2012 was just two years old. When Ms. Sangha fled the matrimonial home with Rajan, she took nothing other than the clothes they were wearing and his stroller. She went to stay with Mr. Rai who lived in the Brampton area. She immediately sought legal advice first from a Mr. Trenholme, who wrote Mr. Sangha a letter advising of his retainer and opening negotiations. As a result of that letter, Ms. LaRocque began an interchange with that Brampton lawyer. But without any notice to either Ms. LaRocque or Mr. Sangha, Ms. Sangha changed lawyers and retained Greg Cook of Nanda and Associates to represent her interests.
5On instructions, Mr. Cook immediately prepared and brought an emergency ex parte motion in Brampton. Within a day (the documents were signed on Saturday, June 9, 2012 and the Dunn, Prov. J. Order was granted on the following Monday, June 11, 2012), a custody order and a Restraining Order were both obtained.
6In the meantime, Ms. LaRocque had, on June 7, 2012, written Mr. Trenholme and advised inter alia, that Mr. Sangha would be bringing immediate proceedings in Kitchener, if the child was not returned to his home in Kitchener. When no response from Mr. Trenholme was forthcoming, Mr. Sangha started his Application on Tuesday, June 12, 2012. With it, he brought an urgent motion returnable June 14, 2012. Ms. Sangha was personally served with those documents on Tuesday, June 12, 2012, and Ms. LaRocque also faxed courtesy copies of the pleadings to Mr. Trenholme and by e-mail to Ms. Sangha.
7On the Tuesday, June 12, 2012 (a day after Ms. Sangha obtained her ex parte order) when he received the fax from Ms. LaRocque, Mr. Trenholme responded that he was no longer acting for Ms. Sangha. He declined to disclose the name of Ms. Sangha’s new lawyer and of course refused to “accept service” of the documents. He also declined to send copies of the faxed documents to Ms. Sangha. Of course, nothing comes of that refusal since Ms. Sangha had already been personally served. However, the lack of professional courtesy is striking.
8It was not until Wednesday, June 13, 2012 between 4:00 pm and 5:22 pm that Mr. Cooked caused one of the June 11, 2012 Orders to be faxed to Ms. LaRocque. Since her law office was closed by that time, the documents were not discovered until Thursday, June 14, 2012 at 9:00 am.
9Included with the faxed pleadings and one of Dunn, Prov. J.’s Orders was a cover letter from Mr. Cook advising that the Brampton proceeding was returnable there on June 25, 2012. In his letter, Mr. Cook required that Mr. Sangha’s motion for later that day “should not proceed” until after the June 25, 2012 Brampton date. No form 25G Order (the Restraining Order obtained) was included in the fax. It is obvious from the contents of Mr. Cook’s covering letter that he had been made aware that Ms. LaRocque was acting for Mr. Sangha and that his client, had been properly personally served with Mr. Sangha’s Application and Motion returnable on the 14th of June.
10Needless to say, Ms. LaRocque and Mr. Sangha were greatly distressed at having been (they felt) victimized by such an “end run” by Ms. Sangha and, they argue, by her counsel, Mr. Cook.
11Ms. LaRocque immediately responded by letter to Mr. Cook (faxed at 10:17 am on June 14, 2012) that Mr. Sangha’s motion would indeed proceed and that she would seek to set aside the Brampton ex parte Order. No response to that letter was forthcoming on that date and no one on Ms. Sangha’s behalf appeared in court in Kitchener when the motion was heard and decided by Reilly, J. at 1:00 pm Thursday, June 14, 2012 (some three hours after Ms. LaRocque’s fax to Mr. Cook at Nanda and Associates and almost a full day after Mr. Cook’s letter to Ms. LaRocque which clearly indicates that he was well aware of Mr. Sangha’s motion returnable in Kitchener on the 14th).
12Of course, the Brampton temporary custody order was set aside. Ms. Sangha was ordered to return Rajan to Mr. Sangha by 6:00 pm the next day, June 15, 2012.
13In his Endorsement of June 14, 2012, Reilly, J. notes that inter alia, that he is:
“…satisfied that the Respondent mother has misled, indeed deceived Justice Dunn of the Ontario Court of Justice in Brampton in order to obtain his order for custody of 11 June 2012. The court in Brampton has no jurisdiction to address the issue of custody of a child whose residence is clearly in Kitchener. In order to obtain the relief she sought, the Respondent swore and affidavit which is demonstrably false in several areas…”
14Reilly, J. then adjourned Mr. Sangha’s motion to June 28, 2012 at 10:00 am.
15On the next day, Friday June 15, 2012, Nanda and Associates served Ms. LaRocque at 11:51 am with a motion returnable at noon that very day seeking to stay Reilly, J.’s Order from the day before. They sought to be granted an order that Rajan remain in the Respondent’s care until the June 28, 2012 return date in Kitchener.
16After having been assured that the Respondent’s motion would not proceed that day, Ms. LaRocque left the office, before a call advised her law clerk that the Respondent’s motion would indeed proceed at 4:30 on that day (Friday). Ms. LaRocque could not be reached, so an agent (Mr. Lannon) had to be retained to attend to oppose the relief sought.
17Ms. Hussein from Nanda and Associates attended to argue the motion before Reilly, J. Ms. LaRocque’s law clerk and Mr. Lannon attended to speak to the motion. It was at this attendance that Ms. Hussein advised Reilly, J. that the Thursday, June 14, 2012 motion should not have proceeded because Mr. Cook had had “communication” with Ms. LaRocque and that she, Ms. LaRocque, at one point in that “communication” agreed to adjourn the June 14, 2012 motion.
18I am satisfied that no such communication occurred. Ms. LaRocque alleges that Ms. Hussein called it “a phone call” and the transcript of the attendance before Reilly, J. confirms that fact. Regardless of the form of the alleged communication, it did not happen at all and at no time did Ms. LaRocque ever agree to adjourn her client’s June 14, 2012 motion.
19Ms. LaRocque alleges in her Factum at paragraph 8 that Ms. Hussein misrepresented an event to the court and conflated the circumstances of the separation and the “abduction threat” that Mr. Sangha posed, beyond any reasonable interpretation of the evidence:
8Ms. Hussein made blatantly false representations to the Court, inter alia, that father’s counsel had agreed in a telephone conversation with Mr. Cook to adjourn the June 14, 2012 motion. There was never a telephone conversation or other communication with Mr. Cook besides the letter stating father was proceeding with his motion on June 14, 2012. She continued to insist in the face of overwhelming evidence to the contrary, that there was a danger of father fleeing with the child and that mother had been abused in several ways. She made allegations not in evidence that father made threats, of police involvement and when Justice Reilly pointed out father’s evidence from mother’s own hand of her love, Ms. Hussein blamed the paternal grandmother for the alleged abuse and claiming that mother had wanted to reconcile. Justice Reilly dismissed mother’s motion but ordered that the motion returnable June 28, 2012 be heard at 4:30 p.m. on June 19, 2012. He also granted access by mother to Rajan on each of June 16 and 17 in Kitchener from 2:00 to 4:00 p.m.
20Ms. Hussein’s hyperbole and exaggeration of the evidence exacerbated an already heated process (in light of the Brampton ex parte sneak-order-manoeuvre). Clearly, Reilly, J. was unimpressed with Ms. Hussein’s argument since he called her suggestion that Mr. Sangha would abscond with Rajan “patently ridiculous.”
21As Ms. LaRocque’s Factum reveals and I accept as accurate, the following then occurred:
9Respondent’s counsel served three affidavits by the Respondent, one on Saturday, June 16 and two more on June 18, 2012. The second affidavit contained essentially the same evidence but added numerous new assertions and was 80 paragraphs long. The third affidavit attached an unsworn letter from Family and Children Services. The Applicant was able to prepare only a brief reply by affidavit dated June 18, 2012.
10Justice Reilly heard the motion on June 19, 212 and ordered it be returned for argument on June 28, 2012. He ordered that Rajan’s principal residence would remain with father and provide access period to mother each Saturday and Sunday from noon to 6:00 p.m. During the argument, it became apparent that mother had obtained a Form 25G restraining order. Mother’s lawyers never served the Father or his lawyer with such order as required under the Rules. Justice Reilly set such order aside.
10[sic] On June 25, 2012, Respondent’s counsel served yet another affidavit, purportedly in reply to the Applicant’s affidavit of June 18, 2012, repeating many of her previous statements and attempting to expound upon them to which the Applicant had to respond. Continuing Record, Tab “Index”
11On June 28, 2012, the motion was returned along with father’s motion for costs personally against Mr. Cook, Ms. Hussein and the law firm of Nanda and Associates. Justice Taylor further adjourned the motion to July 12, 2012 to allow mother to obtain another lawyer and ordered no further material could be filed on the motion. Thereafter, said law firm and lawyers no longer acted for the Respondent.
22After the June 28, 2012 attendance, the (now three) motions required attendances on July 12, 2012, July 26, 2012, August 9, 2012, then came before me to be argued on a long motion date on September 13, 2012. On that date, I made an extensive order on the merits and initially intended to allow costs for that date only of $5000, in the cause. However, counsel demurred, so I heard their submissions regarding the unusual cost situation, involving Mr. Cook et al., since Ms. LaRocque asserted that Mr. Sangha had already incurred “at least $25,000” in fees since starting this proceeding, all because of the Nanda group’s tactics.
23As a result of their submissions, I endorsed the record as follows:
“Costs:
i. Payable by Ms. Sangha to Mr. Sangha to be set by me after the motion regarding Mr. Cook et al. has been decided, and
ii. Potentially payable by G.A. Cook et al. to Mr. Sangha for this day (including 10 hours to create a Factum and $3000 for counsel fee for two-thirds of a day) and for all the attendances and preparation and research etc. from the outset set at $25,000, including HST and disbursements.”
24Since that date, the motion by Mr. Sangha for costs against Mr. Cook/Nanda/Hussein, per Family Law Rule 24(9) or Rule 57.07 of the Rules of Civil Procedure has returned to court to be spoken to (along with other issues on the merits) on September 21, 2012, January 16, 2013, May 24, 2013, and was argued regarding the question of solicitor-client privilege on July 2, 2013. Costs for that particular attendance have already been set in the amount of $2000, plus HST, in the cause. On October 1, 2013, this costs motion was adjourned to November 28, 2013 to set a date to be argued. The trial proceeded December 4, 2013 and consumed 15 days into January 2014. My decision was rendered orally on June 17, 2014, when I also finally heard argument on Mr. Sangha’s motion for costs against Cook/Nanda/Hussein.
25In order that I arrive at a decision on this motion, several questions need to be answered, namely:
What is the proper interpretation of my Costs Endorsement made on September 13, 2012?
Does Rule 24(9) “adequately cover” the issue to be decided, based on the facts of this case or does Rule 1(7) provide a vehicle to bring to bear Rule 57.07 of the Rules of Civil Procedure because 24(9) does “not cover a matter adequately…”?
Depending upon that answer, what is the extent of the personal liability, if any, of Mr. Cook et al. for costs “caused by the fault of” or “wasted” by him/them?
If I find that any or all of Cook/Nanda/Hussein are personally responsible for cost wasted or costs “run up,” what is the proper quantum of those costs?
I. Firstly, what does my September 13, 2012 Endorsement mean?
I. Firstly, what does my September 13, 2012 Endorsement mean?
26Mr. Sangha’s motion for costs v. Mr. Cook et al. was not before me nor was it argued on September 13, 2012. I separated the question of costs for that September 13, 2012 attendance itself from the overarching (and pending) determination of what, if any, costs Mr. Cook et al. might pay.
27In the first part of the Costs Endorsement, I identified that it would be Ms. Sangha who would pay costs for the attendance that day and that the quantum for the day would include ten hours to prepare a Factum and $3000 counsel fee for the two-thirds of a day attendance to present submissions on the issues on the merits of custody, access, etc.
28By separating the two parts of the Endorsement, I indicated that the final decision on the quantum of costs for September 13, 2012 would
a) Await this decision, after full argument, and,
b) Take into account eventually, what part of Mr. Sangha’s costs, if any, for the entire application and various motions and attendance that had occurred to that date that Ms. Sangha might be able to set off against any order against Mr. Cook et al. that I might grant, up to a maximum of $25,000, plus HST and disbursements (which I accepted as Ms. LaRocque’s estimate of what Mr. Sangha had incurred to that point in the litigation.
29Ms. LaRocque has now produced a “client ledger” from which she says she has removed all fees that do not relate directly to the procedure involving Mr. Cook/Nanda/Hussein. The total of fees and disbursements between June 14 and September 13, 2012 are $29,070 plus $888.99 for disbursements.
30In sum, the Endorsement required Ms. Sangha to pay Mr. Sangha for both of the motions argued on September 13, 2012, an amount which would include ten hours preparation and $3000 counsel fee for the day. The actual quantum of those costs would be set after I decided whether Mr. Cook et al. could be held responsible for any costs of that day and/or for any costs for “all attendances, preparation therefore and research for those attendances from the outset of the action”, which, based on Ms. LaRocque’s claim, I set at not higher than a fixed amount of $25,000.
31I did not purport to then apportion responsibility for those legal fees, nor did I attempt then to separate fees for the main action as opposed to the various motions brought, argued and decided.
32It is perhaps unclear by my Endorsement that Mr. Cook et al. could never be responsible for Mr Sangha’s costs for his Application. Mr. Cook et al. could only ever be responsible for direct costs expended by Mr. Sangha in order to set aside the effects of the Dunn, Prov. J. Orders improperly obtained by Ms. Sangha and for the motion brought by the Nanda group on Ms. Sangha’s behalf on short notice returnable Friday, June 15, 2012.
33My Endorsement intended to “cap” or maximize the extent of the Nanda group’s liability, but still allow the court to examine exactly what direct connection existed between the Nanda group’s actions and Mr. Sangha’s then legal account.
II. Does Rule 24(9) “adequately cover” the issues of whether the Nanda group can be held responsible for some/all of Mr. Sangha’s legal costs?
II. Does Rule 24(9) “adequately cover” the issues of whether the Nanda group can be held responsible for some/all of Mr. Sangha’s legal costs?
34Rule 1(2) directs that the Family Law Rules apply “to all family law cases” in this court and in the Ontario Court of Justice. This case is indeed a family law case and the Family Law Rules apply to each and every aspect of this proceeding.
35Mr. Sangha, in his motion at Tab 14 of the Continuing Record, argues that the Nanda group, by its actions, strategy and tactics should pay substantial indemnity costs to him “incurred as a result of proceedings brought by the Respondent in the Ontario Court of Justice in Brampton as Action No. 711/12” on the basis of and alleging that the Nanda group did:
Bring proceedings against the Applicant herein in the Ontario Court of Justice in Brampton including motion without notice when the solicitors knew or ought to have known the said Applicant was represented by counsel in the jurisdiction where the child ordinarily resided and without any attempt to serve notice of such motion upon this said Applicant either personally or by his solicitor;
Failing to appear on a motion returnable June 14, 2012 brought on notice to the Respondent and served upon her;
Attempting to bring a motion on 9 minutes notice on June 15, 2012 and then demanding that the matter be heard on an ex parte basis on such date;
Making false representations to the Judge hearing the Respondent’s motion on June 15, 2012;
Failing to properly serve the motion material and orders obtained in the Brampton Ontario Court of Justice matter in a timely fashion or at all;
Serving numerous affidavits improperly sworn and without leave of the court and containing and repeating and attempting to bolster allegations already made in the proceeding;
Engaging in sharp practice
36In both Rules, the wording of the first ground that allows a court to order costs to be payable by a lawyer personally is very similar (i.e. “caused costs to be incurred” as opposed to “has run up costs”). Both of those bases to order costs against a lawyer personally require that either of those actions were “without reasonable cause”.
37The second ground to make such an order is if (s)he “has wasted costs” as opposed to “has caused costs… to be wasted by undue delay, negligence or other default….” Rule 57.07 qualifies the grounds regarding wasting costs and restricts actions to “delay, negligence or other default.”
38Rule 24(9) has no such restriction and allows a court an unfettered consideration of any action that wastes costs. Indeed, the title of the subsection is the only caveat that such wasted costs must be “caused by fault” of a particular lawyer(s).
39Blacks Law Dictionary defines “fault” as:
“An error or defect of judgment or of conduct, any deviation from prudence or duty resulting from inattention, incapacity, perversity, bad faith or mismanagement.”
40Rule 57.07 makes no mention of “fault” but qualifies “caused costs to be wasted by… negligence…”
41Blacks defines “negligence” as:
- The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect other against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of other. The term denotes culpable carelessness. The Roman-law equivalents are culpa and negligentia, as contrasted with dolus (wrongful intention). – Also termed actionable negligence; ordinary negligence; simple negiligence. 2. A tort grounded in this failure, usu. expressed in terms of the following elements: duty, breach of duty, causation, and damages.
“Negligence in law ranges from inadvertence that is hardly more than accidental to sinful disregard of the safely of others.” Patrick Devlin, The Enforcement of Morals 36 (1968).
42It then offers definitions of twenty-five different types of negligence from “active and advertent negligence” to “slight, subsequent, wanton and wilful negligence”.
43Although the definitions of fault and negligence vary somewhat and motivation or intention for an action appear to be relevant to both fault (“bad faith”) and negligence, (“intentional, wantonly, willfully…”) I find that both Rules effectively address actions by lawyers that arise from the same or similar circumstances.
44In this case, there is no allegation that any of the Nanda group caused costs to be wasted by delay. However, there are allegations of default (see headings ii and v) and negligence (see headings i, ii, iii, vi). It appears to me that the accusation of “sharp practice” (heading vii) does not fall within either Rule and therefore (as Mr. Bennett submits) falls within the mandate of the Law Society for consideration, since actions that could be considered such are regulated by Rule 6.03(3) of the Rules of Professional Conduct of the Law Society of Upper Canada.
45In any event, given the allegations upon which this motion is based and my view of what is meant by “fault” and “negligence”, I find that Rule 24(9) “adequately covers” these circumstances and that Rule 1(7) does not allow Rule 57.07 of the Rules of Civil Procedure to come into play in these circumstances.
III. For what portion, if any, of Mr. Sangha’s costs incurred from June 14, 2012 to September 13, 2012 is any of the Nanda group responsible?
III. For what portion, if any, of Mr. Sangha’s costs incurred from June 14, 2012 to September 13, 2012 is any of the Nanda group responsible?
46Mr. Cook and Nanda’s liability for potential costs against him/it arose when he decided to launch Ms. Sangha’s Applicantion and ex parte motion in Brampton.
47Regardless of the merits of Ms. Sangha’s claim of abuse and Mr. Sangha’s alleged threat to remove Rajan from Ontario, and regardless of whether her claim was urgent or not (any judge presiding on such motions considers those issues daily), Kitchener was the proper forum for her motion. The legislation and the Rules are very clear on that point.
48None of the conditions of Rule 5(1) of the The Family Law Rules then applied to Ms. Sangha’s circumstances. She did not “reside” in Brampton. She fled with the child to her only friends, the Rai’s, who lived near Brampton. But to interpret her temporary sanctuary as her “residence” is a stretch beyond any reasonable interpretation. Rajan had lived his whole life in Kitchener. Ms. Sangha had lived her entire Canadian tenure in Kitchener. It was apparent that only because the local woman’s shelter in Kitchener was temporarily full that Ms. Sangha called upon the Rai’s for help and fled to them for temporary respite.
49I am satisfied on these circumstances that Mr. Cook’s rush to get an order before Mr. Sangha could realize what had happened was so that he could enjoy a “home-court advantage” over Mr. Sangha and because it was handy for him and his staff at Nanda and Associates. His assumption that any judge in this province would support an action continuing in Brampton as opposed to proceeding with the dispute in Kitchener is entirely unsupported by any rational consideration of the facts of the case.
50If her allegations were accepted after Mr. Sangha was offered an opportunity to respond to her wild and unsupported accusations, Ms. Sangha might have been successful. It was not Mr. Cook’s mandate to challenge Ms. Sangha’s allegations. He cannot be blamed for what she (falsely, it turns out) claimed had occurred. He prepared her Application and her emergency ex parte motion as instructed. There is no fault in that action whatsoever, despite Ms. LaRocque’s argument to the contrary.
51What he did do wrong, advertently, was to choose to bring the proceeding in Brampton instead of bringing it in the court with obvious jurisdiction, namely Kitchener. By using the “rush-in and get-there-first” (in the court closest to the law firm’s offices) tactic, Mr. Cook and Nanda and Associates (he represents the firm and his decisions, or perhaps his following the firm’s policy to only litigate in Brampton, binds his firm as well) can be faulted for committing a gross error in judgment and for intentional conduct that willfully disregarded the impact of his decision to litigate in the wrong forum.
52There is no question, on balance that Mr. Cook should have known that when Mr. Sangha was served with the Dunn, Prov. J. Order of June 11, the first step that he or his family law lawyer would take would be to challenge that Order and the jurisdiction of the court from which it was granted. I cannot think of any experienced family law lawyer that would not take that step, once notified. Therefore by his precipitous and ill-advised decision Mr. Cook intentionally “ran up” costs and wasted court time, judicial resources and litigant’s money.
53If Mr. Cook and Nanda and Associates continue to hold themselves out as experts in litigation and encourage the public to rely upon their professional experience and training, unreasonable and erroneous decisions as basic as in which forum parties litigate cannot continue to be made with personal impunity. Mr. Cook made a serious and significant error. Neither of the Sangha’s should be expected to pay for his mismanagement of the commencement of this litigation.
54I have also considered the wisdom of Mr. Cook proceeding in Brampton ex parte, when Mark Trenholme knew that Mr. Sangha had a lawyer on the file and that that lawyer was trying to intervene on his behalf. I am not satisfied that there is evidence that Mr. Trenholme was in contact with Nanda and Associates or that Ms. Sangha revealed that she had previously “retained” Mr. Trenholme before she “hired” Mr. Cook or that she gave Mr. Cook Ms. LaRocque’s letter to Mr. Trenholme. In those circumstances, it was up to Mr. Cook’s own discretion to decide to proceed ex parte or not. He cannot be criticized for that decision. It was open to him to proceed as he chose and if the presiding judge required service on Mr. Sangha before he would grant any order, that was the judge’s call, based upon the affidavit evidence placed before him. I do not fault Mr. Cook for that decision.
55However, after obtaining the Order that his client sought on Monday, June 11, 2012, Mr. Cook’s client was personally served on the Tuesday with Mr. Sangha’s Application and motion, returnable on Thursday, June 14. I do not have evidence of when Ms. Sangha advised Mr. Cook of that Thursday Kitchener motion, but the evidence does show that by Wednesday, June 13, Mr. Cook was in fact aware of the Thursday Kitchener motion, since he dictated a letter to Ms. LaRocque seeking/demanding that Mr. Sangha’s motion “should not proceed” on the next day, Thursday, June 14.
56Rather than phone Ms. LaRocque with his request and discussing the issues (and disclosing that he had already obtained an Order two days earlier), he had his staff merely fax one of the June 11 Orders and affidavits and his covering letter, after office hours on June 13. According to the evidence that I accept, the fax started at 4:00 pm and continued until 5:22 pm June 13, 2012. Nanda and Associates must be held to have read and at least be aware of the Family Law Rules. Rule 6(7) applies regarding Mr. Cook’s tactic of serving documents after office hours. I am unaware of how many pages were faxed, so I cannot decide if Rule 6(13) was also breached.
57Although I have ruled that Ms. LaRocque’s claim that Nanda and Associates and Mr. Cook engaged in “sharp practice” must be addressed in another forum (if her client chooses to do so), I find that Nanda and Associates and Mr. Cook, who had carriage of the file, did breach the expectation that a litigants lawyer, once (s)he has obtained a substantive Order from the Court as important as custody of the child (and especially a Restraining Order against a litigant), has a strong duty/obligation to forthwith serve those Order(s) on the restrained person personally. Nanda and Mr. Cook did not only not discharge that positive duty, the evidence shows that they delayed doing so. The method that they chose to do give Mr. Sangha notice of the existing order further breached a Rule of the court, it would appear, to buy extra time by faxing only some of the papers/orders after office hours on the Wednesday, June 13.
58Then, to compound their failures and their professional negligence, neither Nanda nor Cook arranged for Ms. Sangha to be represented or to at least have an agent attend to seek an adjournment, on terms, before Reilly, J. when Mr. Sangha’s Thursday, June 14 motion proceeded. Time, effort and resources were consumed on Thursday, June 14 and again on Friday, June 15, when, instead of calling Ms. LaRocque to negotiate, Nanda and Cook decided to short serve another urgent emergency motion to try to revive the Dunn, Prov. J. Order or to at least get the Reilly, J. June 14 Order set aside.
59It is then at the Friday, June 15, 2012 motion that Nanda and Cook’s tactics and negligence (some would argue incompetence) is joined by Ms. Hussein’s misguided attempted to mislead the presiding judge regarding both the merits of the case and the rationale for the need for Ms. Sangha’s latest urgent motion to keep Rajan with her in the Brampton area. Reilly, J. gave short shrift to Ms. Hussein’s specious argument regarding Mr. Sangha being a “flight risk”. But it is in her overzealous effort to convince the court that Ms. LaRocque and Mr. Cook “communicated” about an adjournment that Ms. Hussein implicates herself and subjects herself to an order of costs against her personally.
60Advocates must closely guard their representations to the court to ensure that those assertions are accurate, fair and without embellishment, overstatement or exaggeration. While, as the case law indicates, lawyers must discharge their obligation to their clients cause with vigour and without fear or favour, they remain officers of the court.
61According to the Law Society Rules of Professional Conduct, a lawyer’s integrity is the fundamental quality of any person who seeks to practise as a lawyer and his/her conduct should reflect credit in the legal profession, inspire the confidence, respect and trust of clients and the community (and dare I say, the courts) and avoid even the appearance of impropriety.
62Unfortunately, on this occasion (June 15, 2012), Ms. Hussein became overly consumed with her brief and was ill-prepared (by Nanda and Mr. Cook) to accurately and objectively plead her client’s case. Ms. Hussein exceeded her mandate, conflated circumstances and tried to create an appearance of impropriety by casting some vague aspersion at Ms. LaRocque about her agreeing to an adjournment. She failed. As a result, she has discredited both herself and Mr. Cook and has in turn, implicated Nanda and Associates into the mix of inadequate and improper advocacy. She was not properly briefed by Mr. Cook for her rushed attendance on the urgent motion and as a result Mr. Cook and Nanda both become indirectly responsible for her struggles to properly, fully and accurately inform the presiding judge.
63Regarding complaint heading number vi) of Mr. Sangha’s motion that Cook/Nanda/Hussein should be held personally liable for not complying with the Rules by serving “numerous affidavits improperly sworn…. Containing and repeating and attempting to bolster allegations already made….”, I find that since Mr. Sangha was advised that he needed to respond to all of those additional allegations, costs were “run up” and wasted unnecessarily (although this head of complaint is unfortunately not uncommon in family litigation). Judges, as gatekeepers of the process of litigation, must continually be vigilant and as a result, increase their control over profuse and prolix affidavits that escalate antagonisms rather than elucidate facts. Unnecessary repetition and interminable recitations of unnecessary details of long-ago slights or perceived offences are unhelpful and only serve to exacerbate the antipathy that separated spouses now feel. Counsel need to filter the wheat from the chaff and avoid being swept up into the maelstrom of hard feelings that the parties seek to air in court.
64I have reviewed the extensive case-law upon which Mr. Bennett relies. Of course, the seminal case in this area remains Young v. Young, 1993 34 (SCC), [1993] 4 SCR 3, which sets out at pages 135-136:
The basic principle on which costs are awarded is as compensation for the successful party, not in order to punish a barrister. Any member of the legal profession might be subject to compensatory order for costs if it is shown that a repetitive and irrelevant material, and excessive motions and applications, characterized the proceedings in which they were involved, and that the lawyer acted in bad faith in encouraging this abuse and delay. It is clear that the courts possess jurisdiction to make such an award, often under statute and, in any event, as part of their inherent jurisdiction to control abuse of process and contempt of court…. [C]ourts must be extremely cautious in awarding costs personally against a lawyer, given the duties upon a lawyer to guard confidentiality of instructions and to bring forward with courage even unpopular cases. (emphasis added)
65The case of Carleton v. Beaverton Hotel, (2009) 2009 92124 (ON SCDC), 96 O.R. (3d) 391 (Ont. Div. Crt) also establishes that costs orders against lawyers personally are intended to be compensatory (and as the Supreme Court in Young set out), not punitive. Carleton then set out a two-part test to be applied when considering such a costs order (in that case pursuant to Rule 57.07(1)).
66The first step is to inquire whether the lawyer’s conduct falls within the Rule (in this case Family Law Rule 24(9) in that it caused costs to be incurred unnecessarily.
67In this case, I find that the actions (and non-action regarding their June 14, 2012 non-attendance at Mr. Sangha’s motion) of Nanda and Associates, as having a supervisory obligation over the actions/non-actions of its lawyers, and of Cook and Hussein did indeed cause costs to be incurred by Mr. Sangha unnecessarily.
68Secondly, I am then to consider, as a matter of discretion and by applying the extreme-caution-principle enunciated in Young whether in these circumstances, the imposition of costs personally is warranted.
69In these circumstances, I find that Nanda/Cook and Hussein’s actions and conduct are so egregious that they do warrant the court’s censure. On these facts, I am able to connect decisions, actions and tactics made and taken by the Nanda group directly to attendances, preparation therefore and efforts by Ms. LaRocque (and the agent hired by Mr. Sangha when she was unavailable) that ensued, caused by their fault. Those costs could and should have been avoided, thusly they have been wasted unnecessarily.
70Mr. Bennett challenges one of Ms. LaRocque’s submissions by arguing that, since Reilly, J. made no specific order regarding costs for her attendances on June 14 or 15, 2012 and adjourned the June 19 return date to June 28 (after making some temporary decisions regarding the merits of the case) when Taylor, J. adjourned the motion(s) without costs, there cannot or should not be any finding that costs for those attendances be allowed.
71I disagree. I find that there is a clear and evident nexus between those various attendances that arise separately from considerations of the parties cases on the merits and the arguments that were necessary to “undo” the effects of the Brampton Orders. Time, effort and money were expended unnecessarily over those several attendances which are directly attributable to the decisions made by the Nanda group in this litigation. Whether Reilly, J. or Taylor, J. turned their minds to or heard submissions regarding Rule 24(10) is not evident. What is, indeed, evident is that in hindsight, the Nanda group caused significant disarray and jurisdictional error that needed to be set aside. Rather than acquiescing and acknowledging their error, the Nanda group persisted in trying to justify and revive the unjustifiable, and thereby exacerbated their error and ran up costs.
72I have also read and considered the decision of Lane, J. in Walsh v. 1124660 Ontario Ltd, (2007) CarswellOnt 982, where he observed at paragraph 21/22 the following:
21When dealing with objectionable conduct of counsel, the court may be exercising its disciplinary jurisdiction based on the contempt power or its inherent jurisdiction to control its own process and officers. If there is to be a finding of contempt, there must be more than simple negligence involved; the conduct in question must be egregious or done in bad faith, or similarly deserving of punishment. The appropriate reaction to contempt is punishment, which will rarely include costs other than those of the contempt proceeding itself, or costs actually wasted by the contemptuous conduct itself. Contempt is generally punished by a fine, not by costs. This is to be contrasted with the inherent power to control misconduct falling short of contempt by the imposition of a costs order to secure the compensation of the opposite party where the misconduct has wasted costs or caused expense to be incurred unnecessarily and in bad faith: Young, supra.
22Against this background, it should not be difficult to accept the plain meaning of Rule 57.07, the language of which contains no necessary element of bad faith nor of conduct worthy of professional punishment. It is enough that the acts described in the Rule have occurred.
73I have also read and considered the recent decision of Healey, J. in Bailey v. Barbour, 920140 ONSC 3698, which also addresses, inter alia, circumstances that caused her to consider an order pursuant to Rule 57.07 of the Rules of Civil Procedure. I agree with Healey, J. when she considers at paragraphs 38 and 39 of her decision, the following:
As the case authorities discuss, the need for extreme caution in awarding costs against lawyers is necessary to ensure that lawyers’ conduct is not scrutinized and sanctioned as they carry out their duties to their clients and fulfill their obligations under Rule 4.01(1) of the Rules of Professional Conduct, to assist a client’s case within all reasonable means. If the evidence is unclear who was responsible for the pursuit of litigation, “any doubt should be resolved in favour of the solicitor”: Byers v. Pentex Print Master, 2002 49474 (ON SC), [2002] O.J. No. 1403, 59 O.R. (3d) 409 (S.C.J.) at para. 17.
However, a lawyer may not rely on a client’s instructions as a defense when the lawyer has acted in a manner inconsistent with the goals of the justice system: Schreiver v. Mulroney, 2007 31754 (ON SC), [2007] O.J. No. 3191 (S.C.J.) leave to appear refused 161 ACQA (3d) 698 (Div. Ct.).
74In these circumstances, I find that Nanda and Associates, G.A. Cook and S. Hussein have each, in different ways and at different times during their brief involvement with this case, “acted in a manner inconsistent with the goals of the justice system” and have unnecessarily wasted costs, as is intended to be addressed by Rule 24(9).
Disposition
75Therefore, I direct and order the following:
That Nanda and Associates pay the sum of $5000 to the Applicant H.S. Sangha, forthwith; and
That G.A. Cook pay the sum of $5000 to the Applicant H.S. Sangha, forthwith; and
That S. Hussein pay the sum of $3000 to the Applicant H.S. Sangha, forthwith.
76Mr. Sangha has been partially successful on his motion against the Nanda group. I have decided on the quantum of the above order against each lawyer/ lawyer Association on the basis that Ms. Sangha herself must bear some responsibility for some of what transpired due to her overstating, exaggerating or misleading those lawyers into decisions that were “a failure to exercise the standard of care that a reasonably prudent” lawyer would have exercised in similar circumstances.
77I am also aware and find that not all of the attendances and efforts by Mr. Sangha’s counsel, Ms. LaRocque, between June 11, 2012 and June 28, 2012 and then until September 13, 2012 related directly to or was caused by the Nanda group’s fault. Accordingly, I have tempered somewhat the quantum of costs sought by Mr. Sangha to be ordered to be paid to him by the Nanda group.
Costs of the Motion
78Lastly, costs that have been incurred by Mr. Sangha arising from this motion that he brought in late June 20, 2012 need to be addressed. I have already set costs for the one significant attendance when counsel to argued the solicitor-client-confidentiality issue. What is left to be resolved are costs for the various adjournments and for preparation for and attendance on June 17, 2014 for that portion of the day when this motion was argued.
79It is my hope that both counsel for the Sanghas and Mr. Bennett may come to some accommodation regarding the entitlement to (not complete success/offers to settle, etc) and the quantum of costs to be paid the Nanda group for this motion.
80However, if no resolution can be achieved within 10 days from the release of this decision, Ms. LaRocque and Mr. Olsen may send me a brief (less than five pages) written submission with a costs outline and their bills for this motion only, within ten days. Mr. Bennett may respond within ten days thereof. A reply from Mr. Olsen and Ms. LaRocque will be accepted until five days thereafter.
81I thank counsel for their assistance and very helpful submissions in this matter.
G. A. Campbell J.
Date: July 11, 2014
