CITATION: Armstrong v. Armstrong, 2016 ONSC 1025
COURT FILE NO.: DC-15-106
DATE: 2016 02 09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: RUTH ARMSTRONG v. MORLEY ARMSTRONG
BEFORE: LEMAY J.
COUNSEL: M. Hoy, Counsel for the Applicant
J. Birchall, Counsel for the Respondent
E N D O R S E M E N T
LeMay J.
[1] The Applicant, Ms. Ruth Armstrong, sought leave to appeal the costs decision of Dawson J. dated June 17th, 2015. I denied leave in my endorsement of January 7th, 2016. This is the endorsement addressing the costs of this application.
[2] In my endorsement, I stated that the Respondent had fourteen (14) days to serve and file his costs submissions. I went on to say, at paragraph 53, that “the Applicant’s submissions are due fourteen (14) calendar days after the Respondent’s submissions are served on the Applicant’s counsel.”
[3] The materials clearly show that the Respondent’s costs submissions were served on the Applicant’s counsel on January 13th, 2016. Based on the clear language of my endorsement, reproduced in the previous paragraph, Ms. Hoy (the Applicant’s counsel) was required to provide her costs submissions by January 27th, 2016, which was fourteen (14) days after the Respondent’s submissions were served on her.
[4] Instead, Ms. Hoy provided those submissions on February 4th, 2016, which was more than a week late. Her explanation for doing so was as follows:
We interpreted the decision of the Honourable Justice LeMay to be that the Respondent had fourteen (14) days to submit cost submissions and we had fourteen (14) days thereafter to submit our cost submissions rendering it due on today’s date.
At the time I was involved in a trial in Welland and not back in the office until January 28, 2016. My office had the date diarized for today based upon receipt of your Endorsement.
[5] This explanation does not make sense when I review it against the clear language of my endorsement. Ms. Hoy has failed to adhere to the time limits I set out. Although this failure to follow the Court’s direction is of concern to me, I have decided to exercise my discretion and review these submissions.
The Positions of the Parties
[6] The Respondent seeks full indemnity costs for this leave to appeal application. These costs are sought on the basis that the matter was complex, the Applicant made the proceeding unnecessarily lengthy, and the Respondent was entirely successful in his position.
[7] The Applicant argues that this was not a complex motion, and the parties would not have expected to pay a substantial amount in costs. The Applicant also advanced a number of arguments that relate to the merits of both the proceedings before Dawson J. and the merits of this appeal. Those arguments are less relevant than the Applicant’s first two arguments, but I will address all of the relevant arguments in my reasons.
Disposition
[8] This is an appeal under the Family Law Rules. As a result, Rule 24 applies to the determination of costs. However, even if it is Rule 57.01 that applies, the factors that I must consider are similar.
[9] I am of the view that the Applicant should pay the Respondent full indemnity costs for this entire leave to appeal application. I reach this conclusion for a number of reasons.
[10] First, the leave to appeal application was unduly lengthened by the conduct of the Applicant and her counsel. The materials were filed late, and a personal appearance was required in order to obtain leave to file the appeal late. The Respondent argues, with considerable reason, that these delays were to avoid the payment of the costs Order. I do not have to determine whether there was a deliberate strategy of delay in this appeal. The fact that the Applicant’s conduct unduly lengthened the proceedings, whatever the motivation, is sufficient to support an award of full indemnity costs.
[11] Second, there was no merit to the appeal. The problems with the appeal are detailed in my endorsement of January 7th, 2016, and I will not repeat them here.
[12] Third, the Appellant’s materials were woefully incomplete. As I detailed in my January 7th, 2016 endorsement, the failure of the Appellant to properly complete her materials would have been grounds, on its own, to deny her appeal. In addition, however, the Appellant’s failure to file the materials required by the Rules required the Respondent’s counsel to have to do additional work to prepare the Responding materials.
[13] Fourth, although this was a leave to appeal application, I disagree with counsel for the Applicant about the complexity of this matter. Given that counsel for the Applicant raised issues of procedural fairness and bias, it became a much more complicated appeal. This again is a factor that supports a higher award of costs.
[14] Fifth, Ms. Hoy argues that it was “impossible” for her to comply with the Rules requiring that the transcripts be filed with the materials. There are two significant problems with this submission. First, Ms. Hoy never raised this issue until she submitted her costs submissions. Second, given that the appeal was filed in June, it is clear that the transcripts could have been ordered by Ms. Hoy much earlier than they were actually ordered.
[15] Finally, it must be remembered that this application required the parties to both attend in person and to file detailed written arguments. In the circumstances, an award of full indemnity costs is appropriate.
[16] Ms. Birchall seeks full indemnity costs in the sum of $17,253.50 including HST and disbursements. Given the factors I have outlined above, I am of the view that an award in this amount is appropriate.
[17] Accordingly, an order is to issue as follows:
a) The Applicant, Ms. Ruth Armstrong, will pay costs to the Respondent, Mr. Morley Armstrong, of this appeal in the amount of $17,253.00 inclusive of HST and disbursements within fourteen (14) days of the date of this Order.
b) The approval of the Applicant and her counsel to the form and content of this Order is dispensed with pursuant to Rule 25 of the Family Law Rules.
LeMay, J.
DATE: February 9, 2016
CITATION: Armstrong v. Armstrong, 2016 ONSC 1025
COURT FILE NO.: DC-15-106
DATE: 2016 02 09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: RUTH ARMSTRONG v. MORLEY ARMSTRONG
COUNSEL: M. Hoy, Counsel for the Applicant
J. Birchall, Counsel for the Respondent
ENDORSEMENT
LEMAY J
DATE: February 9, 2015