Pelletier v. Dale, 2015 ONSC 1705

COURT FILE NO.: 2974/14

DATE: 2015/03/19

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Marcel Pelletier v. Michelle Dale

BEFORE: Ellies J.

COUNSEL: In chambers, no one appearing

ENDORSEMENT

[1] In my endorsement of February 3, 2015, I provided Mr. Pelletier with 20 days in which to make written submissions regarding costs. That time limit has expired and the court has received no submissions regarding costs from Mr. Pelletier.

[2] As I indicated in my February 3 endorsement, counsel for Ms. Dale seeks costs in the amount of $8,000, all-inclusive, on a substantial indemnity basis. In my view, that amount is too high. In particular, I do not believe it would be appropriate to award costs with respect to the proceedings which took place before McMillan J. on September 18, 2014.

[3] On September 18, Mr. Pelletier’s motion to have Ms. Mendes removed as counsel was dismissed. The bill of costs includes $850 for the appearance of counsel on that date. The bill of costs also includes costs for preparation by both Mr. MacRae and Ms. Mendes in the amount of $3,787.75. The claim for preparation costs is not broken down in relation to the various steps in this case. However, as the bill of costs is dated September 18, 2014, and appears to have been prepared in support of a request for costs on that date, it is reasonable to assume that a significant portion of that preparation time related to the September 18 motion. No order for costs was made with respect to that motion.

[4] Rule 24(10) of the Family Law Rules, O. Reg. 114/99, provides as follows:

COSTS TO BE DECIDED AT EACH STEP

(10) Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs.

[5] In Islam v. Rahman, 2007 ONCA 622, 228 O.A.C. 371, the Court of Appeal held that rule 24(10) precludes a trial judge from ordering costs with respect to earlier steps in a case where no order was made as to costs at the time, or where there was silence as to the issue.

[6] Some courts have deviated from the ruling in Islam: see, for example, Gogas v. Gogas, 2011 ONSC 5368, 11 R.F.L. (7th) 369. However, I agree with my colleague, Olah J., who held recently that Islam precludes a judge who hears a case from awarding the costs of earlier procedural steps regarding which no costs orders were made: Green v. Green, 2014 ONSC 5000, 50 R.F.L. (7th) 155, at para. 26.

[7] For that reason, I would delete the $850 sought for appearing on September 18 from the bill of costs and reduce the amount sought for preparation time by approximately one-half to $2,000. This would reduce the overall amount of $8,000 by $2,850, plus HST, for a total reduction of approximately $3,000. This would bring the total costs sought to $5,000, all-inclusive.

[8] In my view, a costs award of $5,000 in favour of Ms. Dale is fair and reasonable in the circumstances of this case, given the following:

(a) The number of appearances that were necessary before this matter could finally be dealt with on January 14, 2015, went beyond what would ordinarily be required. A number of adjournments were caused by Mr. Pelletier’s allegations of bias on the part of members of this court and his efforts to have Ms. Mendes removed as counsel from this case, including one on April 3, 2014, and another on December 18, 2014.

(b) Ms. Dale had to retain two lawyers as a result of Mr. Pelletier’s allegations against Ms. Mendes.

(c) Counsel for Ms. Dale had to prepare to oppose two motions, namely the motion to change the venue and the motion to change the order, rather than just the latter.

[9] McMillan J. did order costs following an appearance before him on November 13, 2014. On that date, he granted an adjournment to Mr. Pelletier in order to allow him to proceed with an appeal and/or a motion to change the venue. McMillan J. fixed costs in the amount of $500 and ordered that those costs were reserved to the judge disposing of this matter. In my view, these costs should be paid by Mr. Pelletier to Ms. Dale, as she was ultimately successful, and should be added to the sum set out above.

[10] For these reasons, an order shall issue that Mr. Pelletier shall pay to Ms. Dale the sum of $5,500 for costs.

Ellies J.

Date: March 19, 2015