COURT FILE NO.: FS-483-14

DATE: 2015-09-09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Brendan Van Wieren, Appellant/Applicant

AND:

Catherine Bush, Respondent

BEFORE: The Honourable Mr. G.A. Campbell

COUNSEL: Barry T. Paquette, Counsel for the Applicant/Appellant

Anna L. Towlson, Counsel for the Respondent

ENDORSEMENT REGARDING APPEAL OF TRIAL COSTS DECISION OF HARDMAN, PROV. J OF OCTOBER 9, 2014

[1] After an eight day trial the Respondent sought costs of over $53,000 counsel fees (at a rate of $275/hour), disbursements of $961.11 and $500.00 for accommodation during the trial.

[2] The learned Trial Judge released seven pages of Reasons addressing the Rules and Legislation governing an award of costs. In those Reasons, she adequately explained the law and her rationale for reducing the costs sought to $25,500 (all fees, disbursements and taxes included).

[3] Any appeal court must recognize the high level of discretion allowed trial judges when determining costs and should only set aside such an order if there is an error in principle or the award is plainly wrong (see Ostapchuk v. Ostapchuk, (2003) 2003 57399 (ON CA), 38 R.F.L. (5th) 172 (OCA); Mete v. Guardian Insurance Co. of Canada, (1998) 1998 7177 (ON CA), 165 D.L.R. (4th) 457 and Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, 2004 S.C.C. 9 (OCA).

[4] Clearly, Ms. Bush was the successful litigant at trial and is therefore presumed to be entitled to the costs of her “case”. (Rule 24(1))

[5] However, as the trial judge addressed, Ms. Bush intentionally breached an unambiguous interim court order and thereby was ruled to have been “very unreasonable”. As a result, Rule 24(4) came into play. In her Reasons, the trial judge clearly and intentionally took that Rule into account by reducing the costs request to less than half claimed.

[6] On another point however and despite the great deference to which I am to accord the learned trial judge’s discretion, I must respectfully disagree with her view of and ruling regarding Rule 24(10) (costs decided at each step). In addition to the two cases cited by Mr. Paquette (Fawcette v. Richards, (2009) and Islam v. Rahman, (2007) (OCA)), McLeod’s Ontario Family Law Rules Annotated offers over two pages of decisions that clearly disagree with this trial judge’s view. (as she explained it in paras. 28-30 in her Reasons)

[7] Accordingly, I find that there is an “error in principle” (Hamilton v. Open Window Bakery) within the costs decision appealed from that must be addressed.

[8] A simple reading of Rule 24(10) must lead one to conclude that if a litigant (and counsel) expect to ask to be reimbursed for attendances at case, settlement and trial management conferences, they must, as a routine, ask the presiding justice to set an amount in “the cause” for preparation and attendance at that “step”, so the trial judge can (as did this trial judge) allow an amount in his/her costs award for those other steps in the “case”.

[9] In any event, as reminded in the decision in ­Dingwall v. Wolfe, 2010 ONSC 1044 (as reported in “McLeod’s Ontario Family Law Rules Annotated” p.333)

Costs is not a mechanical calculation of hours multiplied by rates, but one must always have in mind the overriding principle of reasonableness and the fundamental objective of preserving access to justice. The overall objective of the court is to fix an amount that is fair and reasonable for the unsuccessful party to pay, given the particular circumstance of the case, rather than an amount fixed by the actual costs incurred by the successful party. In family law, the expectation of the parties concerning the amount of costs is also a relevant consideration.

[10] Neither of these litigants could “afford” this litigation. At the time of trial, the Appellant earned $33,000 annually and the Respondent had no employment income at all.

[11] That the Respondent’s request was for an order for costs of almost $55,000.00 begs the question of just who was rich enough to fund her case. Clearly, the Appellant’s parents funded (and quarter-backed) his side of the litigation.

[12] Regardless of the funding sources, at Ms. Towlson’s hourly rate times five hours per day for eight days, the basic, face-to-face time invested at trial totals $11,000.00. Of course, one must allow for a reasonable amount of trial preparation time and my view is that a ratio of one:one is generous; namely that for each hour at trial, another hour will have been invested in preparing.

[13] If I were to follow that “formula” or guide, the costs on a fees-per-hour basis would total $22,000.00 as a start for a trial costs order.

[14] However, as the Dingwall case (and others) suggest, that is not the approach one should follow in this exercise.

[15] There now exists ample authority that I am to view the issue of costs of this trial in a flexible and balanced way, recognizing the wide discretion afforded by Rule 24 of the Family Law Rules, O.Reg 114/99; Ostapchuk v. Ostapchuk, 2003 57399 (ON CA), 2003 CarswellOnt 1661, [2003] O.J. 1733 (C.A.). Ms. Towlson’s client is entitled to her costs, but the quantum to be paid must reflect the factors in Rule 24(11), viewed flexibly and the trial judge’s finding that she acted “very unreasonably”: C.A.M. v. D.M. (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (C.A.). A costs award, as well, must represent a fair and reasonable amount that should be paid, rather than any exact measure of the actual costs: Zestra Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (C.A.).

[16] I am also required to make an assessment of a sensible and fair result, consistent with what the unsuccessful party might reasonably have expected to pay: Moon v. Sher (2004), 2004 39005 (ON CA), 246 D.L.R. (4th) 440, [2004] O.J. 4651 (C.A.). The costs determination, as well, must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and document created: Pagnotta v. Brown, [2002] O.J. No. 3033, 2002 CarswellOnt 2666 (Sup Ct.). See also Gale v. Gale, (2006), CarswellOnt 6328.

[17] After examining the factors set out in Rule 24(11) and applying them to the circumstances, positions, offers and tactics of this proceeding and using the “flexible vs. rigid adherence to hours billed times the hourly rate charged” approach set out by the case of Hackett v. Leung 2005 42254 (ONSC) and the “fair and reasonable amount” approach encouraged by Boucher v. Public Accountants Council, 2004 14579 (ON CA), [2004] O.J. No. 2634, OCA, I find that a reasonable, balanced and fair costs order to recognize the Respondent’s success, as adjusted by the Rule 24(4) finding, is $10,000, inclusive of recoverable disbursements and HST.

[18] In arriving at this conclusion, I have also considered those factors set out in paras. 45-48 of the Reasons of the trial judge.

[19] I also agree with her costs payment regime set out in para 2 of the Order section of her Reasons. I further agree with para. 3 of the Order section of her Reasons. (see. Paras. 80-82 of Clark v. Clark, 2014 ONCA 175 (OCA)).

[20] Having come to the result set out above, I find that the Appellant has been only partially successful on his Appeal. He lost the Appeal on its merits but obtained some relief regarding the quantum of costs that he must pay. Accordingly, I rule that success has been “divided” (Rule 24(6).

[21] Neither party can themselves afford more legal costs to have counsel invest more effort to prepare written submissions regarding the costs of this Appeal. (despite Ms. Bush (again) probably being entitled to some additional legal costs.) I prefer that Mr. Van Wieren’s income (and that of his parents) be directed to his/their (grand) daughter’s support and future needs.

[22] Therefore, there shall be no costs of the Appeal.

G.A. Campbell, J.

Released: September 9, 2015