Court File and Parties
COURT FILE NO.: FS-17-00417653-0000 DATE: 20190424 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
GREG SOMERS Applicant – and – NICHOLA FELDMAN-KISS Respondent
Counsel: Christine Vanderschoot, Counsel for the Plaintiff T. Viresh Fernando, Counsel for the former Litigation Guardian Mary Keogh
HEARD: Written Submissions
Costs Endorsement
DIAMOND J.:
[1] In her Endorsement released on January 11, 2019, Justice Gilmore (as Case Management Judge) awarded the applicant his costs of the respondent’s motion seeking a deadline extension in the all-inclusive amount of $750.00. At paragraph 15 of that Endorsement, Justice Gilmore reserved the issue of “how and when those costs should be paid” to the judge presiding over the long motions scheduled (at the time) to be heard on February 19-20, 2019.
[2] The long motions were then heard by me on those dates, and I released my Reasons for Decision on March 21, 2019. Subsequently, the parties filed brief written submissions relating to the applicant’s request that the $750.00 costs award be payable (a) by Mr. Fernando personally and/or by Ms. Keogh as the respondent’s former litigation guardian, and (b) forthwith or at some other time in this proceeding.
[3] I have received and reviewed those costs submissions. To begin, I see no reason why those costs should not be payable to the applicant forthwith. As a result of the findings made in my Reasons for Decision, the respondent is no longer a special party and Ms. Keogh’s involvement (and presumably Mr. Fernando’s as well) in this proceeding has ended. Those costs were incurred by the applicant during the time Ms. Keogh was appointed and acted as the respondent’s litigation guardian. They ought to be recoverable now, and they are ordered payable forthwith.
[4] The Court’s discretion to award costs against a lawyer personally is governed by the principles set out by the Court of Appeal for Ontario in Galganov v. Russell (Township) 2012 ONCA 410, [2012] O.J. No. 2679 (C.A.). In Galganov, the Court confirmed a two-part test with respect to the liability of a lawyer for costs. The first step requires an inquiry into whether a lawyer’s conduct caused the costs to be incurred unnecessarily. Bad faith is not a pre-condition for imposing such costs consequences, and a costs award against a lawyer personally should be considered when the lawyer pursues a goal which is clearly unattainable, or is clearly derelict in his/her duties as an officer of the court.
[5] The second step requires the Court to consider, as a matter of discretion and applying the “extreme caution” principle enunciated by the Supreme Court of Canada Young v. Young, [1993] 4 S.C.R. 3 (S.C.C.), whether, in the circumstances, the imposition of costs against a lawyer personally is warranted. In applying the “extreme caution” principle, the Court must be wary that costs awards against lawyers personally “must only be made sparingly, with care and discretion, in clear cases, and not simply because the conduct of a lawyer may appear to fall within the circumstances described in Rule 57.07(1)”.
[6] My disposition of the applicant’s request is restricted to the alleged conduct of Mr. Fernando which resulted in the $750.00 costs award, and not based upon any of the findings I made in my Reasons for Decision. Indeed, the costs of the long motions have yet to be addressed by the parties.
[7] In my view, there are grounds for a finding that the applicant has satisfied the first step of the Galganov test. The applicant’s costs were incurred unnecessarily by the conduct of Mr. Fernando. Justice Gilmore explicitly found that it was Mr. Fernando’s decision not to alert Ms. Vanderschoot which led to the motion. Mr. Fernando proceeded in an obviously inefficient and unreasonable manner which directly caused an unnecessary motion, additional expenses and a wasting of judicial resources.
[8] With respect to the second step of the Galganov test, I rely upon the comments of Master Glustein (as he then was) in Bégin v. Cameron [2014] O.J. No. 4794 (Master):
“Even if Brett omitted to forward the notice of examination (assuming the first part of the Galganov test was met which it was not), such an omission cannot justify an order of personal costs. The court does not demand a standard of perfection from counsel in order to avoid personal costs. Brett explained to Sutherland his production obligations, and a failure to forward a notice of examination is not conduct which is ‘clearly derelict in his or her duties as an officer of the court’ to warrant personal costs.”
[9] I cannot say with the certainty required in the case law that the steps taken by Mr. Fernando, while troubling and concerning, were deliberately and knowingly carried out so as to render him personally responsible for those costs. As such, and with some hesitation, I am not prepared to order Mr. Fernando to pay the $750.00 costs personally.
[10] That said, the $750.00 costs award ought to be payable by Ms. Keogh personally. The jurisprudence is clear that a litigation guardian is responsible to pay costs awards made against the special party. From November 2017 through to the release of my Reasons for Decision, Ms. Keogh acted as if she was a party and was treated as such. Ms. Keogh was intent upon pursuing a motion seeking an order setting aside the Minutes of Settlement and the Order dated August 16, 2017 of Justice Chiappetta. Many strong and arguably unreasonable positions were taken by Ms. Keogh on behalf of the respondent. It simply does not lie in her mouth at this stage to seek to avoid any resulting adverse costs consequences.
[11] Order accordingly.
Diamond J. Released: April 24, 2019
COURT FILE NO.: FS-17-00417653-0000 DATE: 20190424 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
GREG SOMERS Applicant – and – NICHOLA FELDMAN-KISS by her Litigation Guardian MARY KEOGH Respondent
COSTS ENDORSEMENT
Diamond J. Released: April 24, 2019