NEWMARKET
COURT FILE NO.: CV-65332/02
DATE: 20140124
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Correen Barbe-Langevin a minor by her Litigation Guardian Colleen Barbe and the said Colleen Barbe personally, Plaintiffs
-and-
Nathan Brasseur, Jason Nesbitt, David Britton, Margaret Britton, Lloyd Britton and State Farm Mutual Automobile Insurance Company, Defendants
BEFORE: The Honourable Mr. Justice M. K. McKelvey
COUNSEL:
C. Kirk Boggs, Counsel for the Plaintiffs
Alan L. Rachlin, for the Defendant David Britton
HEARD: In Writing
COSTS ENDORSEMENT
Introduction
[1] This matter involved a motion by the defendant David Britton who sought an order removing Boland Howe as lawyers of record for the plaintiffs as well as an order removing Colleen Barbe as litigation guardian for the plaintiff, Correen Barbe-Langevin. By the time the motion was heard a new litigation guardian had been appointed for Correen Barbe-Langevin. As a result the only issue left before me at the time the motion was heard was whether the plaintiffs’ counsel should be removed as counsel of record for the plaintiffs. For the reasons set out in my decision dated June 4, 2013 the defendant’s motion was dismissed.
Position of the Parties
[2] The plaintiffs seek substantial indemnity costs in the sum of $43,614.05. In the alternative they seek costs payable on a partial indemnity basis in the sum of $29,530.58. They rely on the fact that they were the successful party on the motion and that the proceedings were both complex and important to the plaintiff and required the retainer of outside counsel. They also argue that the allegations made against the plaintiffs’ solicitor justify an award of substantial indemnity costs. The defendant argued on the motion that the behaviour of counsel had put the administration of justice into disrepute. Some of the defence allegations related to the improper handling of settlement funds.
[3] The defendant argues that there should be no costs on the motion or, alternatively, an award of partial indemnity costs of $10,000 payable only in the cause. The defendant argues that the majority of issues raised by the defence motion were only remedied after the motion record had been served and that there were a number of adverse findings about the manner in which Boland Howe had handled the file up to the date of the motion.
Factors Relating to Costs
[4] Rule 57.01 of the Rules of Civil Procedure sets out the criteria which a court should consider in awarding costs. The particular factors which appear to be relevant and which I have considered in this case are as follows:
(a) the result in the proceeding;
(b) the amount of costs that the unsuccessful party could reasonably expect to pay;
(c) the complexity of the proceeding;
(d) the importance of the issues; and
(e) any other matter relevant to the question of costs.
[5] The main issue to be decided on the motion (and indeed the only issue left at the time of hearing the motion) was the issue as to whether the plaintiffs’ solicitor should be removed as the solicitor of record. However, at the time the motion record was issued there was an order sought removing Colleen Barbe as litigation guardian for the plaintiff, Correen Barbe-Langevin. Plaintiffs’ counsel took the necessary steps to appoint a new litigation guardian prior to the hearing of the motion. Nevertheless, as noted in my reasons, the plaintiffs’ solicitor should have recognized the requirement to arrange for a new litigation guardian or, alternatively, moved to have the situation addressed by the court early on in the litigation after it became apparent that Colleen Barbe potentially had an interest in the proceeding adverse to that of her child. The litigation had been ongoing for over 10 years at the time the motion was brought. In addition, counsel for David Britton wrote to the plaintiffs’ solicitor shortly after his retainer in March, 2012 bringing this issue to the attention of the plaintiffs’ counsel. No steps were taken by the plaintiffs’ counsel to address this issue prior to issuance of the motion record. In the circumstances, I view this case as one of divided success. However, it must be recognized that the plaintiff was substantially successful on the motion given that the main issue was always the right of the plaintiffs’ solicitor to act for the plaintiffs and the issue of the involvement of Colleen Barbe as litigation guardian was addressed prior to the hearing of the motion.
[6] I accept that the issue of the plaintiffs’ representation was very important to the parties in this action and especially important to the plaintiffs and their counsel. I also accept that the matter was complex, especially in the context of over 10 years of litigation, and a number of serious allegations being asserted against the plaintiffs’ solicitor. In the circumstances, the retainer of senior counsel to deal with the motion was entirely appropriate. The motion itself required extensive preparation and research as well as two days in argument.
[7] In addition to the above factors, I have concluded that it is appropriate to take into account a number of factors relating to the manner in which the litigation was conducted prior to the hearing of the motion. As noted above, the plaintiffs’ solicitor acted in a situation where there was at least a potential conflict between the position of Colleen Barbe as litigation guardian and her daughter. By the time the motion was heard the daughter had reached the age of majority and was able to take independent legal advice and give instructions as to who she wished to represent her in the action. As noted in my reasons, “The fact that Correen Barbe-Langevin has now reached the age of majority and has the capacity to make decisions on her own behalf is, in my view, a very important factor to consider on this motion”. The motion was originally scheduled to be heard at a time when Correen Barbe-Langevin had not reached the age of majority. Thus, the plaintiffs were fortunate that the hearing of the motion had to be delayed until after she reached the age of majority.
[8] There were also a number of serious lapses by plaintiffs’ counsel in how this litigation was managed. These are referenced in the reasons and include his failure to diligently prosecute the action in a timely manner, his failure to defend counterclaims brought against Colleen Barbe and his failure to promptly deal with funds provided by a co-defendant which were delivered as part of a settlement offer. All of these issues were relied upon by the defence in support of their position that the plaintiffs’ solicitor should be removed. While the defence was not successful on the motion, I accept that these are relevant factors to take into account in assessing costs. I further accept the defence position that general misconduct in the management of litigation is a reasonable factor to take into account on the issue of costs, especially when those issues were significant factors on the motion before me. This conclusion is supported by Mark Orkin in his text The Law of Costs, 2d ed., loose-leaf (Aurora, Ontario: Canada Law Book, 1987) where he states,
A ground for disallowance of costs may be found in the conduct of the parties either before or during the litigation. Thus a successful party may be disentitled to all or part of his or her costs if the party has not been free from fault, for example, if he or she has been guilty of reprehensible or dishonest and criminal conduct, or unfair dealings, or unreasonable behaviour during or leading to litigation … or if the litigation might have been avoided if the plaintiff had compared certain documents properly, or where the issues leading to the motion would likely never have arisen if the moving party had used more care and thought.
[9] While I would not characterize the actions of the plaintiffs or their counsel as rising to the level that could be considered reprehensible, dishonest or criminal I do conclude that the management of the litigation by the Plaintiffs and their counsel was not reasonable and that this is a factor which should be taken into account on the issue of costs, especially when those issues were significant factors on the motion before me. There is support for this position in the Divisional Court decision of Bogoroch and Associates v. Sternberg, 2007 CarswellOnt. 6428 where the Divisional Court found that sanctioning the misconduct of a solicitor with an award of costs in his favour would reflect adversely on the administration of justice and send a strong signal to the profession that undertakings could be ignored.
[10] Taking all of these factors into consideration, I have concluded that this is not a situation where the plaintiff would be entitled to substantial indemnity costs. In addition, the partial indemnity costs which otherwise would be awarded to the Plaintiffs should be substantially reduced on account of divided success on the motion and the manner in which the action was managed by the plaintiffs and their solicitor prior to the hearing of the motion.
Conclusion
[11] For the above reasons I conclude that the defendant, David Britton, should pay the plaintiff costs in the sum of $10,000 including H.S.T. and disbursements. These costs are to be paid within 30 days.
Justice M.K. McKelvey
Released: January 24, 2014