BARRIE

COURT FILE NO.: FC-12-1164-00

DATE: 20151211

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: William Lawrence Caldwell, Applicant

AND:

Jennifer Louise Caldwell, Respondent

BEFORE: THE HON. MADAM JUSTICE E.A. QUINLAN

COUNSEL:
J.L. Rouse, Counsel for the Applicant

M.A. Cummings, Counsel for the Respondent

HEARD: December 3, 2015

COSTS ENDORSEMENT

Overview

[1] After the applicant’s repeated adjournment requests and the eventual receipt of a medical opinion that the applicant was not fit to attend his trial, this family trial was adjourned to the next sittings. The respondent seeks her costs thrown away on a full indemnity basis in the amount of $34,896.98. The applicant opposes the respondent’s request and argues that no costs should be awarded for the adjournment or, in the alternative, the issue of costs thrown away should be reserved to the conclusion of the trial.

Background

[2] This matter was originally set for trial in the May 2015 sittings. The parties jointly requested an adjournment to the November 2015 sittings so they could continue resolution discussions; counsel were advised they could request a teleconference with the case management judge should an updated Trial Management Conference (TMC) endorsement be needed for trial. Neither party sought a teleconference or an updated TMC endorsement.

[3] At the Trial Scheduling Court on November 10, 2015 the applicant unsuccessfully sought an adjournment of the trial; the case management judge ordered the trial to proceed in the November 2015 sittings. The matter was then adjourned for an exit pre-trial to November 13, 2015; at the exit pre-trial, the case management judge noted “there is absolutely no need to adjourn this matter”.

[4] Three days later, on November 16, the matter was up for trial before me. The applicant again sought an adjournment of the trial. I refused his adjournment application and allowed the applicant two days to complete, among other things, his Trial Record and Exhibit Book. I awarded the respondent costs for the wasted day in the amount of $1,000 payable forthwith. As a result, the respondent is not seeking her costs thrown away for her attendance on November 16.

[5] As far as what happened from this point on, many of the facts set out in the applicant’s written costs submissions are unsupported by evidence and I am not relying on them. Rather, I rely on what occurred in court and in the material that was filed. On November 18 the applicant’s counsel advised that the applicant was ill and had attended the hospital the day before complaining of chest pains. Counsel provided a very brief note from Dr. van der Merwe, the applicant’s family physician, which did not deal with the applicant’s ability to attend for his trial and a copy of the Emergency Record which noted non-specific chest pain and hypertension. I adjourned the trial to November 20, 2015, on the condition that the applicant was to provide a fulsome letter from Dr. van der Merwe concerning his ability to attend trial and an authorization to the doctor to speak to the court, if further information was required. The applicant did not attend on November 20. His counsel provided a letter from Dr. van der Merwe that did not address all of the court’s concerns. A teleconference with Dr. van der Merwe was arranged. After the teleconference, the doctor agreed to expedite to that afternoon the applicant’s stress test. The trial was adjourned to November 23, 2015. It was later learned that the stress test results completed on November 20 were “normal”; after reviewing the results that day Dr. van der Merwe opined that “it would be safe for [the applicant] to engage in the trial”.

[6] On November 23, 2015, the applicant’s counsel advised that he had received information that the applicant had taken too many sleeping aids the day before and was in the hospital’s intensive care unit. The court held a further teleconference with Dr. van der Merwe who advised that the applicant had apparently taken an overdose of a tranquilizer together with alcohol and had been admitted to the hospital on November 22. Dr. van der Merwe’s ultimate opinion was that the applicant required further psychiatric evaluation and was not fit to attend for his trial. As a result, the trial was adjourned to the May 2016 sittings and set to other dates to determine if there is a need for a litigation guardian.

Legal Principles

[7] Section 131 of the Courts of Justice Act, R.S.O. 1990, c.C.43 provides considerable judicial discretion on the issue of fixing costs. Rule 24 of the Family Law Rules, O.Reg. 114/99, as am., provides a measure of guidance in the exercise of that discretion by enumerating certain factors that the court may consider in assessing costs. Rule 24 (7) provides:

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.

[8] The phrase “costs thrown away” refers to a party’s costs for trial preparation which have been wasted and will have to be re-done as a result of the adjournment of the trial: Pittiglio v. Pittiglio, 2015 ONSC 3603 at para. 7; Middleton v. Jaggee Transport Ltd., 2014 ONSC 3041, at para. 5.

[9] There are three general categories of cases in “costs thrown away” decisions:

(i) the first category deals with fault where, for example, one of the parties or their counsel neglect to call a witness or a last-minute amendment is required. The court will grant the adjournment on conditions, including the payment of costs thrown away;

(ii) the second category is where the trial is adjourned because of the court’s scheduling problems. No costs are awarded in this circumstance as no party bears responsibility for the adjournment; and

(iii) the third category deals with adjournments sought by one of the parties as a result of no fault on their part. Costs thrown away are still awarded against the party applying for the adjournment, notwithstanding lack of fault: Goddard v. Day, 2000 ABQB 799.

[10] The court noted in Goddard, at para. 20:

The third category… is really one of responsibility for the adjournment as opposed to fault or lack of fault… situations where someone is responsible for an adjournment, but cannot be faulted for that responsibility… [B]eing responsible for an adjournment…carries with it a costs consequence.

[11] Costs thrown away are generally payable on a full recovery basis: Pittiglio, at para. 5; Milone v. Delorme, 2010 ONSC 4162, 2010 CarswellOnt 5535, at para. 12; Straume v. Battarbee Estate, 2001 CarswellOnt 6225, at paras. 2-3; Middleton, at para. 5. This is because the purpose of such an award of costs is to “indemnify a party for the wasted time for trial preparation arising from the adjournment”: Pittiglio, at para. 6; Legacy Leather International Inc. v. Ward, 2007 2357 (ONSC), at para. 9. Such an award is not to punish the party seeking the adjournment, but to indemnify the other party for the wasted time for trial preparation arising from the adjournment: Incandescent Revolution Manufacturing Co. v. Gerling Global General Insurance Co., 1989 3385 (AB QB), at para. 12; Pittiglio, at para. 6, citing Kalkanis v. Kalkanis, 2014 ONSC 205, at para. 3.

[12] The court must determine what costs have actually been wasted. This is not an easy task: some witnesses will require little further preparation while some will require much: Straume, at para. 4. It has been described as an “intuitive”, rather than a scientific, process: Pittiglio, at para. 17.

[13] An award of costs thrown away can be revisited at the end of the trial to determine if further costs should be awarded: Straume, at para. 37; Middleton, at para. 23; Laudon v. Roberts & Sullivan, 2007 10906 (On SC), at para. 20.

Analysis

Should this Court Award Costs Thrown Away?

[14] The history of this matter from the time of the Trial Scheduling Court raises concerns as to whether the applicant has a genuine desire to have this matter heard and accordingly whether this case falls within the category of fault. However, it is not necessary for me to decide that issue in determining whether costs thrown away should be awarded. Even where there is no fault, it is appropriate to award costs thrown away against the party who is responsible for an adjournment. As noted, such costs are not to punish; they are intended to indemnify the other party for the wasted time for trial preparation arising from the adjournment.

[15] The applicant’s reliance on Rule 24(7), which clothes the court with discretion not to award costs for an absent or unprepared party “in the interests of justice”, is not supported on the facts. The applicant has provided no reason why it would be in the interests of justice not to award costs thrown away to the respondent: as an example, the minimal information provided to the court on three court attendances required teleconferences with Dr. van der Merwe and resulted in significant delay and wasted costs. Most of the cases on which the applicant relies do not assist, focusing as they do on considerations that may be relevant at the conclusion of a motion or a trial, such as the entitlement of a successful party to costs. I can find no basis for the applicant’s argument that the respondent acted unreasonably by opposing his adjournment requests and seeking to have this high conflict matrimonial case decided. Assuming its relevancy in determining whether costs thrown away should be ordered, I do not have evidence that the respondent wields economic power such that access to justice by the applicant is an issue: both parties have claimed bankruptcy and I have no other evidence of their means.

[16] I do not accept the applicant’s submission that the respondent was not ready for trial. She has consistently been prepared to proceed, although she was hampered in her efforts to add to the Trial Record by the failure of the applicant to file the Record in accordance with the Rules. I do not accept that the respondent was unreasonable in not seeking a TMC. Both parties had the right to do so if they thought it necessary. It is not the respondent’s job to ensure the applicant is ready for his trial. I find no basis for the applicant’s position that there be no award of costs thrown away for the adjournment of the trial or that costs be reserved until the conclusion of the trial.

[17] The applicant was responsible for the trial being adjourned. The respondent is entitled to her costs thrown away, not to punish the applicant, but to compensate her for the costs that have been rendered useless in having this trial adjourned.

What Amount Should be Awarded for Costs Thrown Away?

[18] Costs thrown away should be awarded on a full indemnity basis. In recognition of the difficulty in ascertaining the amount that has actually been wasted, the respondent seeks two-thirds of her Bill of Costs with an opportunity to revisit the costs thrown away at the conclusion of the trial.

[19] Although the applicant argued that excessive time was spent by the respondent, he did not file his own Bill of Costs to demonstrate what is fair and reasonable and what the parties might have expected: Ward-Price v. Mariners Haven Inc., [2004] O.J. No. 5528, 136 ACWS (3d) 804 at para. 13 (SCJ). I denied his request in the course of submissions to do so at a later date: I accepted the respondent’s position that it would be procedurally unfair to the respondent to allow the applicant to file his Bill of Costs after the motion had been argued.

[20] The respondent reasonably began her trial preparation in September 2015. The Bill of Costs discloses conference calls with the Children’s Lawyer and opposing counsel, the preparation of a trial brief and trial book of documents, the meeting of witnesses for trial preparation, the attending to of the net family property statement and section 7 expenses, the reviewing of the Trial Record, research, attending to will-say statements, and reviewing and responding to admissions and productions. These are all matters properly undertaken to prepare for trial. In determining what has been wasted, I am satisfied that some of the work done will need to be repeated. Some witnesses may need to be fully prepared again, some may not. The Exhibit Books will change and the NFP briefs may have to be amended. A six-month delay in the trial will result in the need to file updated financial statements and income tax returns which will have the effect of altering the quantum of child support. Having said that, it is difficult to determine what exactly will have been wasted as a result of the six month adjournment of this trial.

[21] I have reviewed the Bill of Costs. The hourly rate sought is reasonable. I find that the costs of attending Trial Scheduling Court and the Exit Pre-trial are not properly part of costs thrown away. I am satisfied that the fees for attendances in court on November 18, 20, and 23 to address the repeated requests for adjournment, considering the failure of the applicant to provide adequate information and the consequent wasted time arising from the need to arrange multiple teleconferences with his doctor, should be awarded on a full indemnity basis. I award $7,000 for those three attendances. I award $7,000 of the $17,250 sought for wasted trial preparation from September 2, 2015 to November 23, 2015. I recognize that this is a rough guess in view of the difficulty in determining what has been wasted, but considering the ability of the trial judge to make an adjustment, I am satisfied that it is a fair and reasonable amount to order for preparation that has been wasted and that will have to be repeated. As a result, fees for costs thrown away are set in the amount of $14,000. I expect that much of the $1209.25 spent on photocopies will not be wasted; the other almost $250 in disbursements is likely wasted. An appropriate award for disbursements thrown away is $750, for total costs thrown away of $14,750.

[22] Accordingly, the applicant shall pay to the respondent her costs thrown away including HST in the amount of $16,667.50, payable by January 15, 2016, with an adjustment to be made by the trial judge following the trial.

Costs on This Motion

[23] The respondent seeks costs for this motion in the amount of $5,819.50 on a full recovery basis, arguing that the applicant’s unfounded position that her actions in opposing the adjournment were unreasonable invites an inflated costs award. Although I find that the respondent’s position in opposing the repeated adjournment requests was not unreasonable, I am not persuaded that the applicant’s position on this motion merits other than the usual partial indemnity award.

[24] The respondent had been successful on this motion. The costs sought are reasonable and what a party could expect to pay. Accordingly, the respondent is awarded her costs of this motion in the amount of $3,000, payable by January 15, 2016.

Quinlan J.

Date: December 11, 2015