Court File and Parties

KINGSTON COURT FILE NO.: 379/17 DATE: 20190326 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: W. Applicant

AND:

K. Respondent

BEFORE: Justice A. C. Trousdale

COUNSEL: Jane E. Thurber, Counsel for the Applicant at the hearing on October 23, 2018 and on the initial costs submissions. Applicant was self-represented for her reply on costs. Peter M. Callaghan, Counsel for the Respondent

HEARD: In chambers

Preliminary Costs Endorsement

[1] On December 28, 2018, I released my decision on the Applicant’s motion. I stated in the decision that if the parties were not able to agree on the issue of costs, the Applicant could file written submissions as to costs by January 18, 2019, the Respondent could file written submissions as to costs by February 1, 2019, and the Applicant could file any reply by February 13, 2019.

[2] The Applicant filed her written submissions as to costs on January 18, 2018. The Respondent filed his written submissions as to costs on February 1, 2019. On February 1, 2019, the Applicant served and filed a Notice of Change of Representation that she was now representing herself. On February 12, 2019, the Applicant filed her Reply submissions as to costs. It is apparent from the cover letter attached to that document that Queen’s Family Law Clinic is assisting but not representing the Applicant.

[3] On February 15, 2019, the Respondent filed “Further Costs Submissions”. In those submissions, the Respondent claims the Applicant’s reply costs submissions do not constitute proper reply submissions as contemplated by the case law or by the Family Law Rules. The Respondent seeks that the reply submissions filed by the Applicant on February 12, 2019 should be struck out by me or rejected in their entirety. Alternatively, if the reply submissions are permitted to stand, the Respondent seeks the opportunity to make further substantive submissions as to costs.

[4] The Respondent submits that reply submissions are intended only to afford a party the opportunity to respond to issues raised by the other party in their responding submissions, which were not known to the party at the time that they delivered their primary submissions. The Respondent argues that reply submissions are not intended to give the party a “second kick at the can” regarding submissions they could have made, but failed to make at first instance, which would then give the other party no opportunity to respond to those “further and better submissions”. The Respondent submits that this is an issue of fairness and of natural justice.

[5] The Respondent raises three issues regarding the Applicant’s reply submissions.

[6] The first issue is that the Respondent argues that in the reply, the Applicant alleges for the first time that the Respondent’s actions in opposing the request for paternity testing were unreasonable, and claims that such actions constituted bad faith thereby warranting an award of “full recovery” costs. The Respondent submits that this is not proper reply.

[7] On reviewing the Applicant’s original written submissions as to costs, I find that the Applicant did raise the issue of bad faith and Rule 24(8) which states that if a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. In his responding submissions, the Respondent did make arguments as to why there should be no finding that the Respondent acted in bad faith. Without making any decision at this time regarding bad faith, I find that the Applicant’s reply submissions regarding bad faith and the costs consequences that should arise from any finding of bad faith, should not be struck out or ignored as they are proper reply submissions and were not raised for the first time in the reply.

[8] The second issue raised by the Respondent is that in the Applicant’s reply submissions the Respondent alleges that the Applicant submits for the first time that the court is entitled to make an award for costs that exceeds the actual amount of costs actually incurred by the Applicant. In the Applicant’s original submissions on costs, the Applicant claimed costs of $300.00 per hour for her counsel. In the Respondent’s submissions on costs, he did not take issue with the time spent by the Applicant’s counsel, but disputed the hourly rate charged by the Applicant’s counsel. The Respondent complained that the Applicant’s counsel failed to provide any documentation in support of the fees or expenses claimed by her such as time dockets or invoices for any out-of-pocket expenses claimed by her.

[9] In the Applicant’s reply submissions, the Applicant refers to the Legal Aid Ontario Tariff and Billing Handbook which apparently states, “the fact that a client is legally aided is not relevant to the assessment of costs. When assessing costs, the private retainer rate of the legal aid lawyer should be referenced.” This was the first indication that the Applicant was legally-aided and that the amount of costs claimed by the Applicant might be higher than the costs the Applicant actually incurred.

[10] In his further costs submissions, the Respondent argues that the argument that the Applicant is making was available to the Applicant at first instance, and does not constitute proper or reasonable reply submissions.

[11] I find that it is reasonable to give the Respondent the opportunity to respond to the Applicant’s argument that in determining costs where the party is legally-aided, the private retainer rate of the legal aid lawyer shall be referenced, and that the Court may award costs to the Applicant which are higher than the Applicant actually incurred. The Applicant should then be given an opportunity to file a reply only on that issue in response to the Respondent’s further submissions.

[12] The third issue raised by the Respondent is that in her reply submissions the Applicant raised for the first time that she had made an offer to settle which she alleges was relevant to the issue on this motion. The Respondent alleges that the Applicant had every opportunity in her primary submissions to allege that she had made an offer to settle which she felt was relevant and applicable to this motion. He argues that this prevented him from making any arguments about whether this offer to settle should be considered in determining costs of this motion.

[13] I agree with the Respondent that this part of the Applicant’s reply submissions should be struck out because the offer to settle was not referred to in the Applicant’s initial submissions as to costs.

[14] In addition, I find that this offer to settle should not be considered because of the submissions of the Applicant’s former counsel, Ms. Thurber, at the hearing and the contents of a ruling that I made at the hearing on October 23, 2018, confirming Ms. Thurber’s agreement that the Applicant would not refer to the offer to settle in question on the issue of costs. It is quite likely that due to a change in representation, the Queen’s Legal Clinic who assisted the Applicant with her reply submissions on costs was not aware of Ms. Thurber’s agreement nor of my ruling at the time the reply submissions were made.

[15] Accordingly, I find that paragraph 6 and the attached Schedule “A” of the Applicant’s reply submissions should be struck out and should not be considered by me on the issue of costs of this motion.

Conclusion

[16] I will allow the Respondent until April 8, 2019 to respond only to the Applicant’s argument that in determining costs where the party is legally-aided, the private retainer rate of the legal aid lawyer should be referenced, and that the Applicant may receive an award of costs that exceeds the actual amount of costs actually incurred by the Applicant. The response shall be no more than one typewritten page. The Applicant shall have until April 16, 2019 to serve and file any reply of no more than one typewritten page, in response to that issue only.

Justice A. C. Trousdale

Released: March 26, 2019

KINGSTON COURT FILE NO.: 379/17 DATE: 20190326 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: W. Applicant - and - K. Respondent BEFORE: Madam Justice A. C. Trousdale COUNSEL: Jane E. Thurber, Counsel for the Applicant Peter M. Callaghan, Counsel for the Respondent preliminary costs endorsement Madam Justice A. C. Trousdale Released: March 26, 2019