Court File and Parties

COURT FILE NO.: 16-305 DATE: August 24, 2018

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Paterson v. Paterson BETWEEN: Lianne Paterson, Applicant and Thain Paterson, Respondent

BEFORE: Honourable Mr Justice Martin James

COUNSEL: Margaret Osadet for the Applicant Natasha Pappin for the Respondent

DATE HEARD: Written Submissions

Costs Endorsement

James, J

[1] This is a costs endorsement arising from the applicant’s motion to adjourn a trial and the respondent’s claim for costs thrown away as a result of the granting of the adjournment. Most of the details and the relevant time line of events is set out in the endorsement dealing with the adjournment request which was reported at 2018 ONSC 2303 although a brief recapitulation of the facts is necessary to put the matters in issue in context.

[2] In June 2017 a date to continue the settlement conference was set for October 27, 2017.

[3] The initial settlement conference had taken place in December, 2016. In the spring of 2017 the respondent retained new counsel because his previous lawyer closed her practice and re-located to the United States.

[4] Shortly before the continuation of the settlement conference, Ms. Osadet, the lawyer for the applicant, requested judicial permission to participate from Toronto by telephone. This request was not granted.

[5] The settlement conference proceeded on October 27 as scheduled. Ms. Osadet did not attend but arranged for an agent to attend in her place. A copy of the court’s endorsement from the settlement conference was faxed to Ms. Osadet’s office.

[6] Disclosure issues were discussed and agreed to and a trial date was set for the May 2018 sittings. Ms. Osadet’s agent and the lawyer for the respondent, Ms. Pappin, agreed that trial scheduling endorsement forms would be exchanged by January 31, 2018.

[7] Ms. Osadet did not serve opposing counsel required trial scheduling endorsement forms by January 31, 2018.

[8] For reasons which are not clear, Ms. Osadet overlooked the fact that this matter had already been ordered to trial for May 2018 when, in January 2018, she scheduled a trial in Windsor that conflicted with the May trial date in Pembroke.

[9] Also not clear is the reason for Ms. Osadet’s delay in not immediately notifying this court that she had a scheduling problem when she discovered it.

[10] A trial management conference took place on April 5, 2018. Ms. Osadet and her client were in attendance. Various issues including outstanding disclosure requirements were discussed.

[11] The applicant’s motion to adjourn the trial in this proceeding was heard on April 6, 2018. The decision granting the motion to adjourn was made on April 10th subject to delivery of written submissions on the costs issues, including whether some of the costs ordinarily to be borne by the applicant ought to be paid personally by Ms. Osadet pursuant to rule 24(9) of the Family Law Rules.

[12] The position of the respondent is that he is entitled to full recovery of the costs related to his preparation for trial and the trial management conference in the amount of $3,118.80 and in responding to the motion in the amount of $2,178.07, HST included in both cases. It appears there is a discrepancy between the respondent’s bill of costs and his costs submissions regarding the amount claimed for the motion. The bill of costs shows full indemnity costs at $2,178.07 but the costs submissions refer to $1,200 on a substantial indemnity basis which I take to be an error.

[13] The position of the applicant is that the respondent’s refusal to accede to the adjournment request was unreasonable and therefore the applicant should have her costs of the motion to adjourn the trial on a partial indemnity basis fixed in the sum of $1,810.23. In addition, the respondent’s costs thrown away are substantially overstated and should be limited to the costs of attending the trial management conference which the applicant estimates at about $500.

[14] In my view it was not unreasonable for counsel for the respondent to refuse to consent to the adjournment request in the circumstances of this case. At the hearing of the motion to adjourn, it was not obvious to me that an adjournment was warranted and should have been consented to. The failure of the applicant and her counsel to satisfy the disclosure obligations, the failure to meet the court-ordered deadline to deliver the trial scheduling endorsement form, the unexplained delay in taking prompt action when the scheduling problem was discovered, the age of the respondent and the presence of a temporary order requiring the respondent to pay substantial spousal support all contributed to the respondent’s refusal to consent to an adjournment of the trial. The applicant is not entitled to her costs of bringing the motion to adjourn. The contrary is the case.

[15] In the circumstances the respondent’s costs thrown away are fixed in the sum of $2,200 plus HST. This figure is at the low end of the range for costs typically awarded for an adjourned trial when the adjournment is for several months, thereby creating the need for much of the prep work to be re-done. The respondent is also entitled to substantial indemnity costs for the motion. They are awarded at the sum of $1,500 plus HST. Recall that the applicant’s partial indemnity claim for the same motion was $1,800 which tends to underscore the reasonableness of the respondent’s request. Both sets of costs are payable by the applicant forthwith.

[16] I considered whether the costs ought to be made payable by Ms. Osadet personally but have decided that this is not an appropriate case to make such an order. Although most, if not all, the responsibility for the situation that arose is properly attributable to her neglect and inattention, I am mindful of comments made on numerous occasions that a court must be extremely cautious in awarding costs against a solicitor personally, that such orders are to be made sparingly, with care and discretion and only in clear cases and only when serious misconduct has been shown. I also note that the respondent did not request that the costs be payable by the applicant’s counsel; this was a matter raised by the court in the endorsement granting the adjournment.

[17] As a final note, Ms. Osadet is reminded that in accordance with Ministry of the Attorney General policy, there is no provision authorizing electronic signatures in family law proceedings. Documents that require a signature but which bear only an electronic signature are liable to be refused at the counter when presented for filing.

______ ORIGINAL SIGNED BY James, J.

DATE: August 24, 2018