Court File and Parties
COURT FILE NO.: 4442/17
DATE: 2018-05-31
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ANDREA BUCIC, Plaintiff
AND:
REYNOLDS & REYNOLDS (CANADA) LIMITED/REYNOLDS ET REYNOLDS (CANADA) LIMITEE, Defendant
BEFORE: Kurz J.
COUNSEL: Ethan M. Rogers, Counsel for the former solicitors of the Plaintiff
N. Catre, Counsel for the current solicitors for the Plaintiff
HEARD: May 23, 2018
ENDORSEMENT
Overview
[1] Rogers and Company and Ethan Rogers (collectively “RC”) seeks $5,000 in costs for a moot motion to be removed from the record.
[2] The Plaintiff retained RC to act on her behalf in this action. Pursuant to that retainer, counsel, Ethan M. Rogers, placed RC on the record for the Plaintiff. At some point in late March, 2018, the solicitor and client relationship broke down.
[3] RC chose to move to remove themselves from the record in this action. Before the affidavit in support of this motion was sworn, another lawyer had undertaken to place herself on the record for the Plaintiff. Nonetheless, RC proceeded with completing, serving and filing its motion record. Even though that new lawyer quickly honoured her undertaking, RC never withdrew this motion.
[4] The issue before me is simple: is RC entitled to any costs of this motion to remove itself from the record? Depending on the answer to that question, I will be called upon to determine the costs of the argument on costs.
Background
[5] The Plaintiff sued the Defendant for wrongful dismissal. The Defendant scheduled a motion to stay this proceeding because of an arbitration clause in the parties’ employment agreement. The motion was originally scheduled for March 7, 2018 but later adjourned to April 12, 2018, on consent.
[6] The solicitor and client relationship between the Plaintiff and RC began to break down just over three weeks before the return date for the Defendant’s stay motion.
[7] On March 21, 2018, Mr. Rogers emailed a letter to the Plaintiff along with an account dated March 21, 2018, for $1,717.38. Mr. Rogers requested a further advance retainer of $2,000 for the proposed motion. Responding to some comments that the Plaintiff apparently made to his staff, Mr Rogers added that “[i]t is, in the opinion of the undersigned, not acceptable for you to have taken a contentious tone with regard to the matter.” He insisted on a response “…by the end of day on Wednesday of this week…” failing which he would move to remove himself from the record.
[8] In as much as March 21, 2018 was “Wednesday of this week”, Mr. Rogers offered his client almost no time to respond.
[9] In response, the Plaintiff left Mr. Rogers a voice mail message, resulting in him sending her a lengthy email. In that email, he referred to an outstanding balance of $218.60 on his previous account, which was included in his new account. He again asked her to confirm that she wished for him to act for her moving forward, failing which she should inform him who will be acting for her.
[10] Two days later, on Friday March 23, 2018, the Plaintiff informed Mr. Rogers that she had “…secured alternative counsel to represent me and will no longer require your services.” She stated that she would electronically pay the $218.60 balance “shortly” by e-transfer. She asserted that “the account is closed.” She added that her new lawyer would be “reaching out to collect the files.”
[11] Forty-two minutes later, Mr. Rogers replied that until payment of his March 21, 2018 account, his firm did not consider the account as closed. He requested that she have her new counsel serve a notice of change of lawyer (“NCL”) and that she pay her account in full. This email was sent at 4:47 p.m., 13 minutes before the end of business on a Friday.
[12] Ten minutes later, the Plaintiff responded that RC’s total amount had been paid. She asked that all files be forwarded the following Monday (March 26th). She added “I will provide address.” At 5:10 p.m. Mr. Rogers stated “we need to receive a Notice of Change of Lawyer.” He stated that the file would be ready for pick up by the following Monday afternoon.
[13] On Monday, March 26, 2018, the Plaintiff and Mr. Rogers exchanged a series of further emails. At 1:03 p.m. Mr. Rogers asked for the name and contact particulars of the new lawyer. He added that he required receipt of a NCL “…if we are to avoid a motion to be removed from the record.”
[14] In response, the Plaintiff requested that Mr. Rogers email the work he had done for her. Twenty-six minutes later, Mr. Rogers replied that he would be happy to comply. But he demanded receipt of the new lawyer’s particulars or her confirmation that she would allow him to serve and file a notice of intent to act in person on her behalf. He required that answer within 45 minutes, or 3:00 p.m. failing that, he would bring a motion to be removed from the record.
[15] Mr. Rogers did not state why he unilaterally and arbitrarily set a 45-minute deadline for the Plaintiff’s compliance with his demand. That was his second such deadline in less than a week. The Defendant’s motion date was still seventeen days away.
[16] Around the time that he set this second deadline, Mr. Rogers wrote to counsel for the Defendant. He stated that the Plaintiff had advised him that she would be retaining new counsel. He requested an adjournment of the April 12, 2018 motion date.
[17] At 9:22 p.m. that evening, Mr. Rogers emailed a notice of motion to the Plaintiff. He stated that a motion record would follow. He offered to settle his proposed motion with the payment of $700. At that point, no motion materials had been formally served (see R. 16.01(4)(b)(iv) and R. 16.06.1).
[18] Thirty-six minutes later, at 9:58 p.m., the Plaintiff’s new lawyer, Brooke Stewart, sent an email to Mr. Rogers. She stated that she had been retained by the Plaintiff and would provide a NCL the following day.
[19] I take the second part of that statement to be an undertaking. As the Law Society of Ontario’s Rules of Professional Conduct state:
7.2-11 A lawyer shall not give an undertaking that cannot be fulfilled and shall fulfill every undertaking given and honour every trust condition once accepted.
[20] Despite receiving Ms. Brooks’ email and undertaking in the evening of March 26, 2018, Mr. Rogers chose to proceed with the motion. On the morning of March 27, 2018, he had his assistant swear an affidavit in support of that motion. He then arranged for service and filing of that motion.
[21] The final paragraph of the assistant’s affidavit is the key one. It contained the hearsay statement that:
I am advised by Ethan Rogers that despite repeated requests for same, no notice of change of lawyer was forthcoming from or on behalf of [the Plaintiff] Bucic, thereby necessitating the motion.
[22] The assistant’s affidavit, which is really Mr. Rogers’ evidence, fails to mention Ms. Brooks’ undertaking. That is a significant omission. By the time that he commissioned his assistant‘s affidavit, Mr. Rogers knew or should have known that another lawyer had undertaken to place herself on the record. He nonetheless completed, served, and filed this motion.
[23] Ms. Stewart honoured her undertaking. On March 28, 2018, she served and filed her NCL, formally placing herself on the record.
[24] Rather than withdraw the motion once RC was served with Ms. Brooks’ NCL, Mr. Rogers appeared in court on April 14, 2018 to speak to it and seek $1,500 in costs. I granted an order removing Mr. Rogers from the record because I could not see Ms. Brooks’ NCL in the file. However, I noted that new counsel’s name was already on the FRANK system.
[25] As part of my preparation of these reasons, I have reviewed the entire court file. I see that the NCL was, as stated above, filed on March 28, 2018. That filing made this motion moot. It was not necessary to order Mr. Rogers’ removal from the record on April 14, 2018 because he and RC were already off the record.
[26] Further, until I reviewed the entire court file I was not aware that the Plaintiff’s new counsel had served a notice of discontinuance of this action on April 5, 2018 and filed it four days later. Thus, when this motion first came before me on April 14, 2018 there was no ongoing proceeding that required RC’s removal from the record. To be fair to RC, there is no evidence of whether Mr. Rogers or the Plaintiff’s agent, Mr. Catre were aware of that fact. Mr. Catre had not been counsel of record in this action.
[27] At the request of Mr. Catre, the issue of the costs of this motion was adjourned from April 14, 2018 to May 23, 2018 to allow for the Plaintiff’s response and argument. The Plaintiff later filed a responding affidavit, factum and book of authorities. RC filed a reply affidavit. All in regard to what was then a claim to $1,500 for the costs of a moot motion in what was, perhaps ironically a discontinued action.
[28] By the time that argument on the issue of costs of this motion came before me on May 23, 2018, RC was seeking a further $3,500 in costs, for a total of $5,000. Its confirmation form stated that the argument would take 58 minutes of the court’s time. Despite my efforts to shorten them, the parties’ arguments took almost that much time.
Analysis
[29] Section 131 of the Courts of Justice Act grants this court the discretion to determine the costs of RC’s motion. The general principles for my consideration are set out in R.57.01.
[30] In Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (O.C.A.), the Ontario Court of Appeal stated at par. 24 that costs awards should reflect "what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties."
[31] I cannot grant RC the costs of its motion for the following reasons:
This motion was unnecessary. RC could have waited longer than March 27, 2018 before bringing it in light of three facts: a. First, the Plaintiff told Mr. Rogers on March 23, 2018 that she had secured new counsel. This occurred before he drafted his firm’s notice of motion. b. Second, Ms. Brooks told Mr. Rogers in writing of her retainer in the evening of March 26, 201. At that time, she undertook to serve her NCL the following day. This occurred before Mr. Rogers chose to complete and arrange for service and filing of the motion record. c. Third, the defendant’s motion was not scheduled to be heard until April 12, 2018. That was seventeen days after RC completed, served and filed the motion materials. Recall that Mr. Rogers wrote to the Defendant’s counsel seeking an adjournment of its motion, likely resulting in its further delay. The risk of RC being forced to act in the Defendant’s motion was less than negligible.
This motion was not only unnecessary, it was foreseeably moot from the time of its inception. Based on Ms. Brooks’ undertaking, Mr. Rogers knew or should have known this.
Even after RC received Ms. Brooks’ NCL on March 27, 2018 they did not withdraw the motion.
By omitting reference to Ms. Brooks’ undertaking the night before and stating that the motion was brought because the plaintiff had failed to serve a NCL, the assistant’s affidavit was misleading.
Ultimately, the motion was the by-product of two unilateral and arbitrarily brief deadlines that Mr. Rogers imposed on the Plaintiff. Taken together with the timing of the motion itself, RC acted unreasonably.
At the point that Mr. Rogers received Ms. Brooks’ email on March 26, 2018, RC’s costs of preparing motion materials were minimal. Almost all of the costs that RC claims arose after Mr. Rogers heard from Ms. Brooks. RC claims thousands of dollars in costs to collect what was originally, at its highest, a few hundred dollars. Even then, the claim for costs is questionable.
In other words, RC’s costs claim is vastly disproportionate to the issues and amounts in question. R. 1.04 sets out the general principles for the interpretation of the Rules of Civil Procedure. Two particular principles enunciated in that sub-rule are apposite to the issues before me: a. First under R. 1.04 (1), those rules are to be interpreted liberally “…to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits” [emphasis added] b. Second, R. 1.04 (1.1) invokes the proportionality principle. It requires the court to “… make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.” [emphasis added] This motion failed to achieve the ends of either principle.
Mr. Rogers argued that RC had no other way but to proceed to court in order to collect its costs of the motion. To the extent that RC wished to collect the small amount that it felt entitled to charge the Plaintiff under its retainer agreement, it could have sued the Plaintiff in small claims court. Instead, RC filed two affidavits and twice attended before this court, expending at least an hour of limited court time.
For her part, faced with an increasing costs claim in an unnecessary motion, the Plaintiff chose to respond with voluminous materials of her own. This unnecessary motion morphed into a claim for costs that took on a life of its own.
Conclusion
[32] For the reasons set out above, I dismiss RC’s claim to costs of its motion to be removed from the record in this action.
[33] I did not allow Mr. Catre to file a bill of costs for the Plaintiff in regard to the argument of RC’s costs of this motion because I felt that those costs should follow this decision. If the Plaintiff wishes to seek her costs of this costs argument, she may file a submission of up to two pages only, double spaced, normal margins, plus a bill of costs/costs outline, within seven days. RC may respond upon similar terms within a further seven days.
[34] Having said that, I remind the parties that this entire costs argument, including the Plaintiff’s response, was vastly disproportionate to the amount and issues in question.
Kurz J.
Date: May 31, 2018