COURT FILE NO.: FC-16-1903
DATE: 2019/06/04
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: KEVIN PRYCE, Applicant
-and-
NICOLE PRYCE, Respondent
BEFORE: Justice Pam MacEachern
COUNSEL: Linda Hanson, for the Applicant
Martin Kenny, for the Respondent
HEARD: In Writing
COSTS ENDORSEMENT
[1] On January 28, 2019, I granted the Respondent’s request to adjourn the trial scheduled to commence on that day. This adjournment was at the request of the Respondent, but opposed by the Applicant. The adjournment was granted on terms that included that the Respondent shall pay the Applicant’s costs thrown away due to the adjournment of the trial, to be fixed upon written submissions by both parties.
[2] This is the determination of those costs thrown away.
The Applicant’s Position
[3] The Applicant seeks his costs thrown away in the amount of $7,585.71 inclusive of HST and disbursements. In the alternative, the Applicant seeks costs thrown away on a partial indemnity basis in the amount of $5,000, inclusive of HST and disbursements.
[4] The Applicant has provided a bill of costs. This bill of costs details the time spent by the Applicant’s lawyer, which totalled 39.95 hours. The Applicant acknowledges that some of this time is not wasted, and has deducted 5 hours from this total to reflect time spent on preparing books of documents and the trial record.
[5] The Applicant’s position is that the remainder of the time, being 34.96 hours, reflects fees incurred by the Applicant, and essentially wasted, due to the adjournment of the trial. This time includes time spent preparing witnesses, preparing an updated financial statement, and in general preparation for trial, which the Applicant states will need to be redone due to the adjournment.
The Respondent’s Position
[6] The Respondent submits that costs thrown away be fixed in the amount of $1,695, inclusive of HST, representing 7.5 hours of the Applicant’s lawyer’s time.
[7] The Respondent recognizes that some preparation work will need to be redone by the Applicant’s lawyer, but argues that this should not include all of the time claimed.
[8] The Respondent submits that her former counsel’s role in the need for the adjournment, and her efforts to mitigate the situation by trying to retain new counsel, are factors that are relevant to the determination of costs thrown away.
The Law
[9] In Caldwell v. Caldwell, 2015 ONSC 7715, 70 R.F.L. (7th) 397, Justice Quinlan held at paras. 8 through 13:
8 The phrase “costs thrown away” refers to a party’s costs for trial preparation which have been wasted and will have to be re-done as a result of the adjournment of the trial: Pittiglio v. Pittiglio, 2015 ONSC 3603 at para. 7; Middleton v. Jaggee Transport Ltd., 2014 ONSC 3041, at para. 5.
9 There are three general categories of cases in “costs thrown away” decisions:
(i) the first category deals with fault where, for example, one of the parties or their counsel neglect to call a witness or a last-minute amendment is required. The court will grant the adjournment on conditions, including the payment of costs thrown away;
(ii) the second category is where the trial is adjourned because of the court’s scheduling problems. No costs are awarded in this circumstance as no party bears responsibility for the adjournment; and
(iii) the third category deals with adjournments sought by one of the parties as a result of no fault on their part. Costs thrown away are still awarded against the party applying for the adjournment, notwithstanding lack of fault: Goddard v. Day, 2000 ABQB 799.
10 The court noted in Goddard, at para. 20:
The third category…is really one of responsibility for the adjournment as opposed to fault or lack of fault…situations where someone is responsible for an adjournment, but cannot be faulted for that responsibility… [B]eing responsible for an adjournment…carries with it a costs consequence.
11 Costs thrown away are generally payable on a full recovery basis: Pittiglio, at para. 5; Milone v. Delorme, 2010 ONSC 4162, 2010 CarswellOnt 5535, at para. 12; Straume v. Battarbee Estate, 2001 CarswellOnt 6225, at paras. 2-3; Middleton, at para. 5. This is because the purpose of such an award of costs is to “indemnify a party for the wasted time for trial preparation arising from the adjournment”: Pittiglio, at para. 6; Legacy Leather International Inc. v. Ward, 2007 2357 (ON SC), 2007 2357 (ONSC), at para. 9. Such an award is not to punish the party seeking the adjournment, but to indemnify the other party for the wasted time for trial preparation arising from the adjournment: Incandescent Revolution Manufacturing Co. v. Gerling Global General Insurance Co., 1989 3385 (AB QB), at para. 12; Pittiglio at para. 6, citing Kalkanis v. Kalkanis, 2014 ONSC 205, at para. 3.
12 The court must determine what costs have actually been wasted. This is not an easy task: some witnesses will require little further preparation while some will require much: Straume, at para. 4. It has been described as an “intuitive”, rather than a scientific, process: Pittiglio, at para. 17.
13 An award of costs thrown away can be revisited at the end of the trial to determine if further costs should be awarded: Straume, at para. 37; Middleton at para. 23; Laudon v. Roberts & Sullivan, 2007 10906 (On SC), at para. 20.
Conclusion
[10] The Applicant’s lawyer was called to the bar in 1992 and the fees claimed are based on an hourly rate of $200. This hourly rate is reasonable given the Applicant's lawyer’s experience. The trial was anticipated to commence on January 28, 2019 and continue for 6 days. It was adjourned on what was to be the first day of trial.
[11] The Applicant has incurred legal fees that are wasted due to the adjournment. I accept that this includes time spent to prepare witnesses, to prepare updated financial statements that will need to be redone, and for general preparation time of counsel.
[12] I do not agree that the amount of time wasted is limited to just 7.5 hours, as the Respondent submits. This matter involves highly contested parenting issues and I accept that the time required to prepare these issues for trial, is significant and that much of this preparation time will need to be redone in advance of the trial. Parenting issues constantly evolve over time, and will necessarily evolve during the period of the adjournment. This aggravates the need to redo much of the trial preparation due to the adjournment.
[13] The Applicant’s bill of costs does, however, indicate that some of the time included in the 34.96 hours may have been spent on tasks that will not be completely wasted, such as the preparation of the opening statement, questions for witnesses, and draft order. I reduce the time for costs thrown away to 27 hours on this basis, which is reasonable and proportional to the complexity of the issues in this matter.
[14] I do not find that any role attributed to the Respondent’s former counsel, for the adjournment, or the Respondent’s efforts to retain new counsel, are factors that should reduce the award of costs in this case. The purpose of an award for costs thrown away is not to punish the party seeking the adjournment based on an assessment of their conduct, but to indemnify the other party for wasted fees.
[15] For these reasons, I conclude that it is appropriate in the exercise of my discretion to award the Applicant his costs thrown away in the amount of $6,102 inclusive of HST. These costs shall be payable by the Respondent forthwith.
Justice Pam MacEachern
Date: June 4, 2019
COURT FILE NO.: FC-16-1903
DATE: 2019/06/04
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: KEVIN PRYCE, Applicant
-and-
NICOLE PRYCE, Respondent
BEFORE: Justice Pam MacEachern
COUNSEL: Linda Hanson, for the Applicant
Martin Kenny, for the Respondent
ENDORSEMENT
Justice Pam MacEachern
Released: June 4, 2019