ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-11-46-00

DATE: 2014-07-15

B E T W E E N:

LAURA ANNE PEPPER

John C. Menear, for the Applicant

Applicant

• and -

PARKER BURTON PEPPER

No one for the Respondent

Respondent

HEARD: June 4, 2014

D E C I S I O N O N C O S T S

WILCOX, J.

[1] This matter came before me for a settlement conference on June 4, 2014. At the conference, the parties negotiated and entered into Minutes of Settlement for a final order. I invited written submissions as to costs within 15 days and received them from the Applicant’s lawyer, Mr. John C. Menear. His bill of costs, including fees and HST, was $2,802.40 for preparation for and attendance at the settlement conference.

[2] The Respondent apparently consulted counsel subsequent to the settlement conference. He had received a draft order from the Applicant’s counsel which set out the terms of the Minutes of Settlement, but nothing about costs. By the time that he obtained a copy of the court’s June 4, 2014 endorsement which set out the schedule for filing costs submissions, they were overdue. At the request of his counsel who supplied this explanation, he was given until July 11, 2014 to file costs submissions, which have been received from the Respondent, not his counsel.

[3] On the subject of costs, s. 131(1) of the Courts of Justice Act provides as follows:

• Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[4] Modern costs rules are intended to serve three purposes:

1. to indemnify successful litigants for the cost of litigation 2) to encourage settlements, and 3) to discourage and sanction inappropriate behaviour by litigants

(Fong and Chan (1999) 1999 2052 (ON CA), 46 O.R. (3d) 330 (Ont. C.A.))

[5] It has been held that a fourth fundamental purpose has been added by the primary objective of the Family Law Rules, that cases be dealt with justly. Justly is defined in the Rules to include:

a) ensuring that the procedure is fair to all parties; b) saving time and expense; c) dealing with the case in ways that are appropriate to its importance and complexity; and d) giving appropriate court resources to the case while taking account of the need to get resources to other cases.

[6] The Ontario Court of Appeal has held that costs awards should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual cost to the successful litigant. The expectation of the parties concerning the quantum of costs is a relevant factor in deciding what is fair and reasonable. (Boucher v. Public Accountants Council for the Province of Ontario (2004) 2004 14579 (ON CA), 71 O.R. 3d 291 and Serra v. Serra 2009 ONCA 395, [2009] O.J. No. 1905). The court retains the discretion not to award a successful party its costs in appropriate circumstances, such as where it would have a devastating effect on the party that would otherwise pay (Murray and Murray (2005) 2005 46626 (ON CA), 79 O.R. 3d 147 (Ont. C.A.). A party’s ability to pay is relevant in deciding the amount of costs but does not affect the other party’s entitlement to costs. (Izuk v. Bilousov 2011 ONSC 7476, [2011] O.J. No. 5814).

[7] Family law rule 24 deals with costs in family cases. It commences with the presumption that a successful party is entitled to its costs. However, a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs, or ordered to pay all or part of the unsuccessful party’s costs. In deciding whether a party has behaved reasonably or unreasonably, the court shall examine:

a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle; b) the reasonableness of any offer the party made; and c) any offer the party withdrew or failed to accept.

If success in a step in a case is divided, the court may apportion costs as appropriate. If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step, the court shall award costs against the party unless the court orders otherwise in the interests of justice. If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.

[8] The factors that shall be considered in setting the amount of costs 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 the 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.

[9] In the present case, success can be said to be shared because it was resolved by agreement. The court is not in a position to say that the agreement favoured one side or the other. However, the Applicant seeks costs from the Respondent on a full indemnity basis due to the latter’s conduct at the settlement conference on June 4, 2014. Three pages of examples of the conduct complained of are given. In summary, although the Respondent had counsel in the matter, he chose to represent himself at the settlement conference. He had done so at a previous settlement conference on April 29, 2014 at which little was accomplished, and he had been ordered to pay costs of that day of $500, which the Applicant had not received by June 4. Despite that, he came to the June 4 settlement conference without his lawyer and unprepared to engage constructively in the process. Litigants are free to represent themselves, but he was reluctant to make decisions without his lawyer. He was rude and disrespectful, and was generally unhelpful in making the settlement conference process work. I understand that he was frustrated by the litigation, but that does not make him unique. Failure to engage constructively in the process only prolonged everybody’s frustration. That he ultimately agreed to a final settlement is largely attributable to the persistence of the others involved. In contrast, after the April 29 experience in which the Applicant was self-represented, she obtained Mr. Menear as counsel. They came to the June 4 settlement conference well prepared to negotiate and to support their positions.

[10] The Respondent submitted that he should be awarded costs because of the Applicant’s uncooperative conduct in the matter spanning several years, but does not include anything like a Bill of Costs, nor any indication of how much the matter cost him.

[11] The Family Rules provide for the awarding of costs promptly after each step. To be clear, the court is now dealing with costs related to the June 4, 2014 court appearance. It is not dealing with costs prior to that.

[12] The usual scale of costs is a partial indemnity. To award costs on a higher scale, the court must find that there is some form of reprehensible conduct that it wishes to show disapproval of. In the present case, although the Respondent exhibited such conduct, he ultimately entered into a final settlement.

[13] Taking the above into account, I order that the Respondent pay costs of $1,500, inclusive of HST, to the Applicant forthwith. For clarity, this is in addition to any previous costs orders made in this matter.

Justice J. A. S. Wilcox

Released: July 15, 2014