CITATION: Bouchard v. Poulin, 2017 ONSC 5949
COURT FILE NO.: FC-15-924
DATE: 2017/09/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Joane Bouchard Applicant
– and –
Jean Poulin Respondent
Christian Pilon, counsel for the Applicant
Frederic Huard, counsel for the Respondent
HEARD: In writing
SHELSTON, J.
COSTS ENDORSEMENT
[1] In Bouchard v. Poulin, 2017 ONSC 3328, I dismissed the motion brought by the respondent where he sought judgment based on an alleged agreement reached by the parties on December 22, 2016. I found that there was no final agreement reached.
[2] Both parties filed motions seeking various claims for relief. At the motion, I indicated that I would deal with the issue as to whether or not the parties had reached a final agreement regarding the Maple Grove company and the issue of disclosure. All other issues were adjourned.
[3] I requested that the parties provide me with their costs submissions by the end of June 2017. An extension was granted to the end of July 2017. The applicant filed her costs submissions on July 7, 2017 which were not brought to my attention until September 18, 2017. The respondent did not file his costs submissions until September 22, 2017.
Position of the Parties
[4] The applicant seeks her costs being either full recovery costs of $36,764.57; substantial indemnity costs of $29,411.65 or partial indemnity costs in the amount of $22,058.76.
[5] The respondent submits that counsel for the applicant submitting additional documents on April 3, 2017 and May 24, 2017 after the hearing on March 23, 2017 is a breach of rule 1.9 of the Rules of Civil Procedure that should be condemned by a costs award against the applicant despite the applicant being the successful party on the motion.
The [Family Law Rules](https://www.canlii.org/en/on/laws/regu/o-reg-114-99/latest/o-reg-114-99.html)
[6] Under Rule 24 (1) of the Family Law Rules, O. Reg. 114/99 there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
[7] Rule 24 (5) states that in deciding whether a party has behaved reasonably or unreasonably the Court shall examine:
(a) The parties’ behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) The reasonableness of any offer the party made; and
(c) Any offer the party withdrew or failed to accept.
[8] Rule 24 (11) states that a person setting the amount of costs shall consider:
(d) The importance, complexity or difficulty of the issues;
(e) The reasonableness or unreasonableness of each party’s behaviour in the case;
(f) The lawyer’s rates;
(g) The time properly spent on the case, including conversations between the lawyer and the party or witness, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of order;
(h) Expenses properly paid or payable; and
(i) Any other relevant matter.
[9] In Serra v. Serra, 2009 ONCA 395, the Court held that family law costs rules are designed to foster three important principles:
(j) To partially indemnify successful litigants for the cost of litigation;
(k) To encourage settlement; and
(l) To discourage and sanction inappropriate behaviour by litigants.
[10] Fixing costs is not a simple mechanical exercise. (See Delellis v. Delellis, 2005 CanLII 36447, (Ont. S.C.).
[11] The Court’s role in assessing costs is not necessarily to reimburse the litigant for every dollar spent on legal fees but the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings(see Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)
Analysis
[12] I find that the applicant was a successful party on the issue regarding the determination as to whether or not the parties reached a final agreement regarding the Maple Grove company and is presumptively entitled to costs.
[13] I find that the motion was important to both parties, difficult but not complex on the legal issues.
[14] The applicant submits that she acted reasonably in making an offer for the parties that have a meeting on January 16, 2017. However, the applicant never submitted a formal offer to settle the motion. The applicant submits that the respondent engaged in unreasonable behaviour because he refused to agree that the parties had not reached a final agreement. Further, the refusal was centered on the respondent’s refusal to provide a security to the applicant in exchange for her transfer of her interest in the Maple Grove company to the respondent. Finally, the respondent was unreasonable because he refused to have a further meeting proposed by the applicant on January 16, 2017.
[15] In addition, the applicant submits that after the motion, the respondent engaged in unreasonable conduct that amounted to bad faith. I have rejected this submission because I have not considered any documentation provided by the applicant after the argument on the motion on March 23, 2017.
[16] I do not find that the respondent acted unreasonably or in bad faith based on the evidence presented to me at the motion on March 23, 2017. The respondent’s position was that an agreement had been reached and that all of the essential terms were agreed. I found that not all essential terms were agreed. While I find that the respondent’s action were not unreasonable, I find that the respondent is responsible for the position taken at the motion in my assessment of costs.
[17] The respondent submits that since I found that an agreement had been reached by the applicant to transfer her interest in the Maple Grove company to the respondent, the applicant engaged in unreasonable behaviour when she sought to add a clause in the agreement regarding security for the payment due by the respondent to the applicant. The respondent’s position is this additional clause was not discussed at the meeting on December 22, 2016.
[18] I do not find that the applicant engaged in unreasonable behaviour. I found that not all essential terms of the agreement were agreed upon on December 22, 2016.
[19] Despite both parties alleging the other was unreasonable, neither party made a formal offer to settle.
[20] I find the hourly rates of the various counsel for the applicant to be fair and reasonable based on their expenses.
[21] In assessing costs, I have reviewed the bill of costs submitted by the applicant. While the bill of costs provides a breakdown of the named lawyer and the hours docketed, there is no specific description of the work done by each individual with respect to the dockable time. Upon a review of the bill of costs, I note the following:
a) Mr. Pilon docketed 64.6 hours;
b) Ms. Sauve docketed 18.3 hours;
c) Ms. Eaton docketed 50.5 hours; and
d) Ms. Proulx, legal assistant, docketed 10.3 hours
The total time docketed was 143.7 hours not including the cost submissions.
[22] The respondent submits that the time spent is excessive and illogical for a motion that took three hours to argue on effectively one issue and that the attendance of Ms. Eaton was not necessary at the motion.
[23] The respondent has not submitted his own bill of costs to allow the court to determine what is reasonable. In determining the amount of costs, one of the factors is what is the expectation of the losing party to pay in costs. Having a bill of costs from the respondent would allow me to determine what the respondent paid in legal fees and then permitting me to determine what was within the reasonable expectation of the respondent.
[24] The applicant is seeking $30,964.50 in legal fees including costs related to the preparation of the applicant’s cost submissions. As no offer to settle was submitted by the applicant, the costs consequences of the Family Law Rules are not engaged.
[25] I agree with the respondent that it is improper to communicate with the judge while a decision is under reserve. The proper procedure would be to schedule a motion before said Judge to consider any additional information and to permit the responding party to make submissions regarding the admission of such evidence. Simply delivering documentation to the judge’s chambers is improper. For that reason I did not consider any evidence as to what happened after March 23, 2017. Finally, the respondent submits that as a result of the applicant’s counsel submitting documentation on April 3 and May 24, 2017 in breach of rule 1.09 of the Rules of Civil Procedure, a cost sanction is warranted based on the decision of Ward v. Ward (2009) 2009 CanLII 92120 (ON SC), 85 RFL (6th) 308. In the cost decision, Justice Matheson in Ward V. Ward, 2010 ONSC 515, the issue was what were the consequences of a letter being delivered to a judge after argument and while an application to determine whether an agreement was valid was under reserve. The court found that the decision to write to the judge was not an issue of bad faith. After reviewing the factors under the Family Law Rules in assessing costs, Justice Matheson awarded the applicant $15,000 of legal fees.
[26] The respondent submits that as a result of the breach of rule 1.09 that counsel for the applicant caused a serious prejudice towards the respondent which should be sanctioned by compensation in the calculation of costs. Clearly, counsel for the applicant should not have communicated with the court after the motion on March 23, 2017. In Ward (supra), Justice Matheson considered the breach of the rule in assessing costs which gave rise to a motion for a mistrial. In this case, no motion was brought after my endorsement was released based on the actions of the applicant in sending me material after the argument of the motion. I did not consider any information provided to me after the motion on March 23, 2017 in arriving at my decision.
[27] I find that the time spent by counsel for the applicant to be excessive for the nature of the motion decided by me.
[28] Based on my determination as to what is a fair and reasonable amount for reimbursement for legal fees incurred with respect to the motion and the costs submissions, I find that it is fair and reasonable that the respondent pay to the applicant the sum of $20,000 inclusive of legal fees, HST and disbursements.
Shelston J.
Date: September 27, 2017
CITATION: Bouchard v. Poulin, 2017 ONSC 5949
COURT FILE NO.: FC-15-924
DATE: 2017/09/27
ONTARIO
SUPERIOR COURT OF JUSTICE
RE Joane Bouchard, Applicant
AND
Jean Poulin, Respondent
BEFORE: Shelston J.
COUNSEL: Christian Pilon, counsel for the Applicant
Frederic Huard, counsel for the Respondent
ENDORSEMENT
Shelston J.
Released: September 27, 2017