CITATION: Guerreiro v. Guerreiro. 2016 ONSC 2367
COURT FILE NO.: FS-12-75815-00
DATE: 2016 04 07
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Idalide Guerreiro v. Juvenal Idefonso Guerreiro
BEFORE: LeMay J.
COUNSEL: N. Reis Leite, Counsel for the Applicant
M. Beauplan-Mann, Counsel for the Third-Party
E N D O R S E M E N T
LeMay J.
[1] The third party, Ms. Marie-Jose Beauplan-Mann, was the former solicitor for the Respondent in this case. She obtained a judgment for unpaid fees in Small Claims Court, and registered that judgment against the matrimonial home. The judgment was for approximately $19,000.00.
[2] After an undefended trial, Daley J. directed a transfer of the Respondent’s interest in the matrimonial home to the Applicant. It turns out that the Respondent’s interest in the matrimonial home was worth approximately $500.00.
[3] The Applicant brought a motion seeking to have the lien discharged upon payment of the Respondent’s entire interest in the home to Ms. Beauplan-Mann and her law firm. Ms. Beauplan-Mann opposed this motion, and argued:
a) The writ was registered before the Respondent had obtained the entirety of the interest in the home. Therefore, the value of the Respondent’s share is irrelevant, and the writ is enforceable against the entire property.
b) That I did not have jurisdiction in this action to lift the writ of execution.
c) That I could not accept the Applicant’s value of the home because this was an undefended action, and the proper value could have been higher.
[4] In my endorsement of February 2nd, 2016, I rejected all of these arguments and lifted the lien against the property upon payment of the Respondent’s equity, which was $529.55. The issue of costs is now to be determined.
The Positions of the Parties
[5] The Applicant is seeking her full indemnity costs in the sum of $8,667.69 inclusive of HST and disbursements for the following reasons:
a) The Applicant was entirely successful in this motion.
b) The Applicant served two Offers to Settle, one of which would clearly have given Ms. Beauplan-Mann and her law firm more than my Order of February 2nd, 2016 gave them.
c) The conduct of Ms. Beauplan-Mann in opposing this motion merits an award of substantial indemnity costs.
[6] Ms. Beauplan-Mann takes the position that either no costs should be awarded, or the amount awarded should be nominal for the following reasons:
a) She has been wrongly identified as the party in this case when it is actually her law firm.
b) The reasonable expectation of the parties was that the fees would have been considerably less than what was actually incurred in this case.
c) Her position on the motion was not unreasonable, and she was not aware of the Respondent’s conduct towards the Applicant prior to the motion date.
Analysis
[7] I start with the issue of Ms. Beauplan-Mann and her law firm. It is not clear to me whether Ms. Beauplan-Mann’s firm has a separate legal identity. However, it is clear to me that Ms. Beauplan-Mann would be her law firm’s directing mind if it actually had a separate identity. Either way, I am of the view that Ms. Beauplan-Mann and/or her firm will be responsible for the costs award from this proceeding. I would also note that this matter was not raised in advance of the motion.
[8] I am also of the view that substantial indemnity costs should be awarded in this case for two reasons. First, the Applicant clearly made reasonable offers to settle in this case. The maximum recovery that Ms. Beauplan-Mann and her firm could have expected from the lien was the $529.55 that I ordered. However, the Applicant was willing to pay $1,000.00 to remove this lien. This offer was only open until June 17th, 2015.
[9] In considering the effect of the Offer, both Rule 18(14) of the Family Law Rules and the Rules of Civil Procedure support an award of substantial indemnity costs in a case where the Applicant has made an offer that is better than the result on the motion. In this case, the offer was not open for acceptance until the day of the motion, so it does not strictly comply with all of the criteria for an Offer. However, it is a clearly reasonable effort to resolve this issue. It is a factor that weighs in favour of an award of full indemnity costs.
[10] Second, Ms. Beauplan-Mann’s conduct, and that of her firm, was clearly unreasonable in this case. The arguments presented to me included an argument that Ms. Beauplan-Mann was entitled to recover monies from the Applicant’s assets in order to pay the Respondent’s legal fees. Ms. Beauplan-Mann and her firm did not have a judgment against the Applicant. They were seeking monies from the Applicant that they were clearly not entitled to at law. All of these arguments were pushed all the way to the hearing of the motion. Again, these unreasonable positions are a factor that weighs in favour of an award of full indemnity costs.
[11] Third, Ms. Beauplan-Mann and her law firm explained that part of the reason this motion went to hearing is that they first learned information about the Respondent’s conduct on the day of the motion that had never been disclosed to them before the motion. This explanation is not correct. The conduct that they are pointing to (including urinating on the Applicant’s materials) was clearly outlined in her Affidavit on the motion, which Ms. Beauplan-Mann was served with on December 21st, 2015.
[12] This brings me to the question of the quantum of costs. While I would normally agree with the third party’s submission that this was not an overly complex motion, I cannot accept that submission in this case. The arguments that Ms. Beauplan-Mann advanced in this case included a jurisdictional argument of some complexity, as well as other arguments that required time and attention to respond to. Given the complexity of the arguments in this case, and the importance of the issues, the amount charged by the Applicant’s counsel for this motion is not unreasonable.
[13] As a result, I am directing that Ms. Beauplan-Mann and her law firm, Beauplan-Mann Law Office are jointly and severally liable to pay the sum of $8,667.79 on account of costs for this motion.
Disposition
[14] I Order as follows:
a) Ms. Beauplan-Mann and her law firm, Beauplan-Mann Law Office are jointly and severally liable to pay the sum of $8,667.79 on account of costs for this motion to the Applicant within fourteen (14) days of the date these reasons are released.
b) The approval of Ms. Beauplan-Mann and her law firm with respect to the form and content of this Order is dispensed with.
LeMay, J.
DATE: April 7, 2016
CITATION: Guerreiro v. Guerreiro. 2016 ONSC 2367
COURT FILE NO.: FS-12-75815-00
DATE: 2016 04 07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Idalide Guerreiro v. Juvenal Idefonso Guerreiro
COUNSEL: N. Reis Leite, Counsel for the Applicant
M. Beauplan-Mann, for the Third-Party
COSTS ENDORSEMENT
LEMAY J.
DATE: April 7, 2016