NEWMARKET

COURT FILE NO.: FC-15-47461-00

DATE: 2015-09-28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jake Ezerzer
Applicant

– and –

Gera Ezerzer aka Lia Carbone
Respondent

Annie Yektaeian, Counsel for the Applicant

James D. Singer, Counsel for the Respondent

S.C. appearing in person

HEARD: August 21, 2015

Ruling ON COSTS

jarvis j.:

[1] This Ruling involves claims for costs against a lawyer, S.C., who formerly acted for the wife.

Background Facts

[2] The husband and wife separated in July 2014 after 12 years of marriage. There are two children of the marriage but no issue involving their parenting arrangements is relevant to this Ruling.

[3] The husband retained a lawyer and commenced an Application on January 15, 2015. That Application claimed, among other things, custody, equalization of spousal net family properties and child support. The wife was personally served on January 23, 2015. Although separated, the parties continued to reside in the matrimonial home with the children.

[4] Pursuant to Family Law Rule 10 (1) the wife was required to deliver her responding pleadings by February 23, 2015. Initially, she retained lawyer E.K. to represent her but, on or about March 9, 2015, she retained S.C. who filed a Notice of Change even though no responding pleadings had yet been served.

[5] Shortly after receipt of the Notice of Change, the husband’s lawyer alerted S.C. that the deadline for delivery of the wife’s Answer had passed and inquired when the husband could expect his wife’s pleadings. The following day S.C. confirmed that she had received the husband’s pleadings from her client and that she anticipated responding by March 19, 2015. That did not happen.

[6] On March 20 the husband’s lawyer requested confirmation from S.C. whether her client intended to respond and, in the event that no such response was forthcoming, husband’s counsel indicated that the husband would be advised to proceed by way of a Form 23C Affidavit for an Uncontested Trial. Three days later an assistant to S.C. wrote the husband’s lawyer that S.C. was out of the country until the end of the month and sought the husband’s further indulgence.

[7] On April 17, 2015, the wife met with S.C. and signed her Answer, Financial Statement and Form 35.1 Affidavit, none of which was served on the husband.

[8] On April 21, 2015 the husband’s lawyer served a Form 23C Affidavit for an Uncontested Trial on both S.C. and the wife. After this service S.C. wrote the husband’s lawyer questioning why her client had been served but nowhere in her letter to the husband’s lawyer did S.C. indicate that the wife had not only signed her responding pleadings but, also, as one would expect, asking why the husband was proceeding in the fashion chosen. There is a record of telephone contacts between the lawyers on April 23 but they never spoke personally, and there is no evidence that any messages were exchanged.

[9] By Form 23C Affidavit sworn April 20, 2015 the husband’s request for an Uncontested Trial was granted on April 23. That dealt with issues involving custody, exclusive possession of the matrimonial home and its listing for sale, child support and costs. The issued Order was directed to be served on the wife.

[10] On June 15, 2015 the wife received a copy of the final Order and provided it the next day to S.C. On June 19 the wife was excluded from the matrimonial home by the husband pursuant to the Order: the locks were changed and the husband indicated that arrangements could be made for the wife to obtain her personal belongings.

[11] Pursuant to an Affidavit sworn June 23, the wife brought two Motions (without Notice to the husband) to both set aside the final Order and to stay it with respect to possession of the matrimonial home. On that day Kaufman J. ruled that the wife’s Affidavit said “absolutely nothing to explain the default in filing an Answer, when the [wife] first learned of the Order, and that she has a defence on the merits… At a minimum the material before me today should have been served upon counsel for the [husband].”

[12] On or about July 10, 2015 the wife discharged S.C. and retained her present lawyer. The wife delivered an Affidavit that contained, as exhibits, the pleadings that she had signed on April 17 when S.C. was her counsel and provided a background to the events which, from the wife’s understanding, explained how her pleadings had not been earlier delivered either in accordance with the Rules or after the time extensions given by the husband.

[13] On July 23, 2015 the parties consented to an Order setting aside the final Order made April 23 and an Endorsement was made that, in advance of a Case Conference scheduled for August 21, S.C. be given an opportunity before the Conference to argue why she should not be held responsible, in whole or in part, for the costs incurred by the husband and wife associated with the final Order and the Motion to have it set aside.

[14] What is clear from the evidence, and S.C. conceded in argument, is that from and after April 23 S.C. made no effort to contact the husband’s lawyer even when, on June 23, she sought to have that Order set aside or stayed.

Analysis and Disposition

[15] Family Law Rule 24 (9) deals with costs caused by the fault of a lawyer and provides as follows:

If a party’s lawyer or agent has run up costs without reasonable cause or has wasted costs, the court may, on motion or on its own initiative, after giving the lawyer or agent an opportunity to be heard,

(a) order that the lawyer or agent shall not charge the client fees or disbursements for work specified in the order, and order the lawyer or agent to repay money that the client has already paid toward costs;

(b) order the lawyer or agent to repay the client any costs that the client has been ordered to pay another party;

(c) order the lawyer or agent personally to pay the costs of any party; and

(d) order that a copy of an order under this subrule be given to the client.

[16] In determining the appropriate amount for costs Family Law Rule 24 (11) mandates certain factors being considered. Those 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.

[17] The husband claims full recovery costs of $6,819 comprising $5,916.50 (fees), $133.36 (disbursements) and $769.14 (HST). The wife claims costs of $7,678.35 comprising $6,640 (fees), $155 (disbursements) and $883.35 (HST). The costs that the spousal parties are seeking against S.C. total $14,497.35.

[18] In arguing that in the circumstances as described it would be inappropriate to award costs against her, S.C. attributed the delays associated with delivering her client’s pleadings to the wife’s delay in responding to S.C.’s requests for information and documents from her client in a timely manner, and she blamed her assistant for not filing the wife’s responding pleadings after they were signed on April 17. But in arguing that she did not discover until June 16, 2015 that her client’s pleadings had not been filed, S.C. had no explanation whatsoever why in the almost two months after the wife and she had been served with the husband’s Form 23C Affidavit, and some kind of phone contact with the husband’s lawyer on April 23, she did nothing further, the direct consequences of which were the final Order being granted and her client excluded from the matrimonial home. S.C. also blamed the difficulties experienced on the first lawyer whom the wife had retained and suggested that the husband’s lawyer had acted improperly in obtaining the final Order. S.C. claimed that she had not been paid anything for her services and was not expecting to be paid.

[19] It is clear law that a court must exercise extreme caution before awarding costs against a solicitor.[^1] Mistake, error of judgment or mere negligence are insufficient reasons.[^2] Nor must there be an element of bad faith present before an award can be made.[^3] While it is difficult to conceive the absence of reasonable cause as not wasting costs, the prerequisite for an award to be made in Rule 24 (9) – without reasonable cause or wasting costs – is disjunctive.

[20] In this case, there is no question that costs have been wasted, and it is unfortunate that S.C. has chosen to attribute that fault to everyone associated with the file except herself. The absence of any evidence of effort on her part either to satisfy herself that her client’s pleadings had been delivered after they were sworn or following up a desultory telephone effort with the husband’s counsel on and after April 23 before her client was excluded from the matrimonial home is inexcusable. S.C. bears responsibility for costs that both parties incurred. The only issue then is determining the amount of those costs.

[21] In reviewing the husband’s Bill of Costs, and the relief requested in his Form 23C Affidavit, there was nothing complex about his claims nor did he succeed in obtaining all of the relief that he sought. Included in that bill was time spent relating to responding to the wife’s Motion, research, preparation and attendance on July 23 and August 21 when, respectively, the wife’s Motion to have the final Order set aside and the issue of the S.C.’s responsibility for costs were argued.

[22] In my view, once the husband became aware that, in fact, the wife had signed her responding pleadings but their non-delivery was the fault of her previous lawyer, it should not have been necessary to devote the amount of time and resources that were spent in dealing with the wife’s participation in these proceedings. The husband is entitled, though, to reasonable costs for the April 23 proceeding and to assessing his position after the wife retained new counsel and her litigation circumstances were known. Costs in the amount of $2,750 inclusive of disbursements and HST are not unreasonable.

[23] As for the wife, she relied on S.C. to properly represent her interests. Well prior to the wife signing her responding pleadings on April 17, S.C. was aware not only that her client was non-compliant with the Family Law Rules governing the delivery of responding pleadings but also that the husband’s lawyer had given several indulgences and expected a response, which never came. The wife’s continued occupation of the matrimonial home was prejudiced and she was obliged, rightly in the circumstances, to retain and instruct new counsel. Most of the wife’s costs claimed after April 17 should not have had to have been incurred. She is entitled to costs which, in my view, are reasonable in the amount of $5,000 inclusive of disbursements and HST.

[24] Accordingly, S.C. shall pay to the husband all inclusive costs in the amount of $2,750 and to the wife all inclusive costs of $5,000.

Justice D.A. Jarvis

Released: September 28, 2015

[^1]: Green v. Green, [2015] O.J. No. 3887, 2015 ONCA 541: Rand Estate v. Lenton, 2009 ONCA 251, [2009] O.J. No. 1173 (C.A.).

[^2]: Kings v. Gagne et al, [2000] O.J. No. 1680 (Ont. S.C.J.); Ben Lolo v. Wong [2012] O.J. No. 519, 12 R.F.L. (7th) 121, 24 C.P.C. (7th) 399 (Ont. S.C.J.).

[^3]: Covriga v. Covriga, [2010] O.J. No. 2192, 2010 ONSC 3030, 86 R.F.L. (6th) 110 (Ont. S.C.J.); Sambasivam v. Pulendrarajah, [2012] ONCJ 711 (Ont. C.J.).