CITATION: Pilon v. Bourcier, 2017 ONSC 5380
COURT FILE NO.: 15-93
DATE: 20170911
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Pilon v. Bourcier
BEFORE: The Honourable Mr. Justice Rick Leroy
COUNSEL: Edward Castle, Counsel for the Applicant
Judith Wilcox, Counsel for the Respondent
HEARD: June 12, 15, 16, 28, 29 and 30, 2017
ENDORSEMENT
[1] The applicant seeks 75% of full indemnity for time prior to the offer to settle and full indemnity thereafter. The rule compliant offer was delivered May 29, 2017.
[2] The applicant submits that the respondent acted unreasonably given the OCL recommendations and the evidence that the children were negatively impacted while in his care.
[3] The calculation is:
Pre-offer time - 12 hours x $425 x .75 = $3,825 inclusive of 10 hours dedicated to two trial management conferences.
Post offer time - 87.25 hours X $425 = $37,081
HST at .13 = $5,318
Disbursements including HST = $277.36
Total Claim = $46,501.
[4] The Respondent submits that costs fixed in the amount of $30.787 all-inclusive is fair and reasonable in the circumstances.
[5] The respondent agrees that the Applicant was largely successful at trial and is entitled to a costs award, that she served a rule compliant offer to settle and achieved a result as favourable as the terms of the offer and that the rates charged and time claimed are reasonable. The Respondent submits that the applicant is entitled to costs on a partial indemnity basis for time prior to the making of the offer on May 29, 2017 and substantial indemnity thereafter.
[6] The respondent disputes that he engaged in any conduct that would entitle the applicant to full indemnity. He was successful on two points, namely unsupervised access and joint decision making with respect to the younger children. He contests entitlement to costs for the two trial management conferences.
[7] The respondent submits that there ought to be a 10% entitlement discount applied to account for divided success on the issues of supervised access and decision making.
[8] In terms of scale the respondent submits that it ought to be 60% pre-offer and 80% post offer. There was no bad faith exhibited by either party.
Discussion
Trial management conferences
[9] The implications inherent in rule 24(10) articulated in 2007 ONCA 427 have been honoured in the breach until recently. I read the reasons In 2010 ONSC 4554. There is some merit on a principled basis for exempting rule 24(10) requirements in respect to trial management conferences. The conference is intended to focus the parties to better manage the trial and is a necessary complement to the trial process.
[10] That said, trial management conferences are not exempted by the rules from the general expectation. I understand how it was that no one adverted to the costs reserve at trial management conference. In the future counsel and the court will be expected to be more attuned to the consequence of failing to raise the issue. On the facts at bar, had the request been made the costs would have been reserved.
[11] Accordingly my ruling is that the applicant will have one-half of the trial management conference time charges. This will reduce the applicant’s entitlement for the pre-offer trial time charge to 7 hours.
Divided Success at trial
[12] As regards the central trial issues the applicant was wholly successful. The reasons for deleting paragraphs 5, 10 and 11 were explained in the reasons for judgment. It would be a stretch to categorize those modifications as success for the respondent.
[13] There was no reference to supervised access in the applicant’s offer dated May 29, 2017 or in Exhibit 7 – the applicant’s draft order. The applicant proposed that the respondent protect Philippe and Jessica from unsupervised time with the three older boys. That was a legitimate proposal. In the context that I expect Mr. Bourcier to respond appropriately to the outcome and he will intervene to protect Philippe and Jessica from inappropriate influence and exposure I thought the term to be redundant.
[14] The offer to settle provided the opportunity of joint decision-making.
Scale
[15] Rule 18(14) provides as follows:
COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER
(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
1. If the offer relates to a motion, it is made at least one day before the motion date.
If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
The offer does not expire and is not withdrawn before the hearing starts.
The offer is not accepted.
The party who made the offer obtains an order that is as favourable as or more favourable than the offer. O. Reg. 114/99, r. 18 (14).
COSTS CONSEQUENCES — BURDEN OF PROOF
(15) The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of subrule (14). O. Reg. 114/99, r. 18 (15).
[16] The respondent agrees that the applicant complied with Rule 18 and the final order was as favourable as the offer to settle.
[17] If a party has acted in bad faith, the court shall decide costs on a full indemnity basis – Rule 24(8). To come within the meaning of bad faith behavior must be shown to be carried out with intent to inflict financial or emotional harm on the other party, to conceal information relevant to the issues or to deceive the other party or the court. A misguided but genuine intent to achieve the ostensible goal of the activity without proof of intent to inflict harm, to conceal information or deceive the other party or the court save the activity form being found to be in bad faith. The conduct of a parent that alienates children from the other parent has attracted bad faith stigma.
[18] The facts were that Mr. Bourcier by whatever means alienated the three older sons from the applicant. It could have been a deliberate pursuit. It could have been collateral damage. Mr. Bourcier said he was unconcerned for the disregard that the three older boys have for their mother. He did nothing to assuage the pain inherent in that dynamic. The underlying issue at trial was the concern that the access allocation was venue for the same influence on Philippe and Jessica.
[19] Attempts at education failed. The experienced OCL social worker tried her best. Notwithstanding recommendations for counselling he did not follow through. The initiative with Dr. Weinberger was investigatory and not therapeutic.
[20] The modern costs rules are designed to foster three fundamental purposes:
i. To partially indemnify successful litigants for the costs of litigation;
ii. To encourage settlement; and
iii. To discourage and sanction inappropriate behavior by litigants – Serra. V. Serra, 2009 ONCA 395, [2009] O.J. No. 1905.
[21] While I stop short of ascribing bad faith to Mr. Bourcier in this matter, he disregarded the accumulation of momentum undermining his cause.
[22] The overriding principle is that costs are to be fixed in a way that is fair to the parties and reasonable in the circumstances – Murray v. Murray, 2005 14579. The impact of the costs award and the reasonable expectations of the losing party are factors.
[23] Mr. Bourcier has the means to pay the costs claimed. The applicant is less able to handle the legal expenses of the trial. Mr. Bourcier had the luxury of capable counsel, multiple conferences aimed at resolution as well as the benefit of the collateral insight into how the best interests assessment would be performed at trial and OCL assistance. He had to suspect that the trial expenses were his to pay and proceeded notwithstanding. Ms. Pilon did what she could to avoid the trial.
[24] For these reasons the respondent is ordered to pay costs to that applicant in the amount of $45,000 HST included as well as the costs of the costs submissions.
The Honourable Mr. Justice Rick Leroy
Date: September 11th, 2017