Court File and Parties
COURT FILE NO.: FC-16-1046 DATE: 2022/11/29
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Michael Raymond Switzer, Applicant -and- Colleen Catherine Joan Switzer, Respondent
BEFORE: Justice D. Summers
COUNSEL: Applicant is self-represented Susan Sviergula as agent for Eric Letts, for the Respondent
HEARD: In Writing
COSTS ENDORSEMENT
[1] This cost decision arises from the respondent’s motion for relief against deemed admissions in relation to three Requests to Admit served by the applicant, Mr. Switzer. The respondent was the successful party and I directed that an order for costs in the amount of $5,000 against the applicant would issue in thirty days unless, within that period, the parties filed written submissions on the amount to be paid. The sum of $5,000 was the amount the applicant sought from the respondent, in the event of his success on the motion. Accordingly, I concluded that $5,000 was a reasonable amount for him to pay as the losing party. My full reasons can be found at 2022 ONSC 179.
[2] The applicant, Mr. Switzer, objects to the award and argues that no costs should be paid by either party. For her part, the respondent takes the position that the cost award made was reasonable but says it would also be reasonable to award an even higher amount.
[3] I do not accept the applicant’s argument that his position on the motion and attempt to rely on his Requests to Admit was meritorious and noble and should not attract cost consequences because the facts underlying the dispute gave rise to opposing outcomes such that a judge’s ruling was necessary. To accept that submission would be to accept that costs should not be a potential consequence to the losing party when the facts of a dispute give rise to more than one possible result. Furthermore, to accept that proposition would be to accept that cost awards would be rare and allow for litigation without the risk of consequences rather than using the costs rules as a tool to promote the expectation and importance of parties assessing the risks associated with litigating their disputes rather than settling them. In that regard, the approach proposed by the applicant would undermine the fundamental purposes that cost rules are designed to foster: (1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants; and (4) to ensure that cases are dealt with justly as required by r. 2(2) of the Family Law Rules, O. Reg 114/99 (FLRs): Mattina v Mattina, 2018 ONCA 867 at para. 10.
[4] Nor am I persuaded by the applicant’s effort to garner support from Justice MacEachern’s decision in Goodwin v. Goodwin, 2020 ONSC 6686, that his position on the motion was meritorious and noble by quoting the court’s description of Requests to Admit as effective tools to narrow the factual issues in dispute, to focus the parties, and thereby assist the court, the parties, and counsel, to meet the duty they all have to promote the primary objective of the FLRs to deal with cases justly as set out in r. 2(2). That rule further provides that dealing with cases justly includes ensuring that the procedure is fair to all parties, saving time and expense, dealing with the case in a manner that is appropriate to its importance and complexity, and giving it the appropriate court resources while taking account of the need to give resources to other cases. I note, though, that the quote, as recounted by the applicant, is incomplete, and omits the words “When used properly” that precede the narrative around the usefulness of Requests to Admit in aid of the imperative of dealing with cases justly. The quote was further truncated to omit the statement that the improper use [emphasis added] of Requests to Admit should not be tolerated. In neither instance did the applicant include an ellipsis in the quote to alert the reader to missing words.
[5] In my view, many aspects of the applicant’s Requests to Admit were improper. One Request was found to be of no import as it was non-compliant with the FLRs, and, therefore, in breach of the Rules. In light of that finding, that Request to Admit cannot somehow be re-cast as being a noble and meritorious effort to promote the court’s ability to deal with the case in order to shield against a costs award.
[6] Nor can the other two Requests to Admit stand up to the applicant’s description of noble and meritorious. Between them, they 666 admissions that, in many instances, related not to facts but to the outcome sought by the applicant on the issues proceeding to trial. For example, the respondent was asked to admit statements such as: “The respondent shall have access to the children 60% of the time and the applicant shall have access to the children 40% of the time”; “It is in the best interests of the children if the applicant retains the matrimonial home”; and “The applicant is not required to pay any further spousal support to the respondent into the future.” These are not statements of fact, rather they are dispositive statements such as one would find in settlement offers.
[7] The applicant’s submission that costs should not follow success because neither party brought the motion voluntarily rather the motion was ordered by the court, also fails to persuade. The record reveals that the order was made at the trial management conference held on March 12, 2021, to address an issue that all had been aware of since January 2021 and that would have a significant impact on trial preparation, the conduct of the trial, and the time required. It had to be resolved prior to trial and to ensure that happened, the case management judge fixed a date and established a timetable. However, nothing about the obvious need for that order undermined the parties’ ability to assess their risks of proceeding and to resolve the issue out of court. In this instance, nothing about the court’s need to order a step as part of its case management function should impact costs.
[8] The applicant further relies on the decision in Goodwin to argue that it was incumbent on the respondent to raise with him the alleged deficiencies in his unsigned Requests to Admit, dated March 10, 2020. I do not agree with that reading of the decision. What Justice MacEachern said in Goodwin was that if the applicant wished to challenge the response to the Request to Admit as delivered by the respondent, he ought [emphasis added] to have advised of his position that it was insufficient and requested a proper response, failing which it was his prerogative to bring a motion seeking an order for a proper response. MacEachern J. did not say it was in any way obligatory on the applicant to take that step. On the contrary, at para. 10, the court agreed with the applicant’s submission that he was not obliged to take any steps to address what was then being argued as an inadequate response.
[9] Finally, if I were to accept the applicant’s submission that no costs should be payable, it would be tantamount to reversing the decision already made that the respondent, as the successful party, is entitled to costs. I have not been given any reason why I would consider doing that. Moreover, my decision was clear. The invitation for submissions was made in relation to amount, not liability.
[10] In that regard, I now accept the respondent’s submission based on a total solicitor-client account of $16,760.33, that a higher costs award is reasonable. This amount represents 58.5 hours split between lead counsel at an hourly rate of $300 and her associate’s rate of $195, and does not include any duplication of tasks or fees associated with reporting to the client. She asks to recover the sum of $10,002.20. To this end, I also consider that the respondent had to review and answer the applicant’s affidavit that totalled 362 pages, inclusive of exhibits. She responded with a 137-page affidavit and a 19-page factum. Oral argument exceeded 2 hours. Considering these factors, I find the amount sought to be reasonable, as are the hourly rates charged and the time spent. Moreover, the applicant did not provide any information about his actual costs – a choice rendering impossible any comparison or assessment of what he might reasonably have expected to pay as the losing party.
[11] I also consider the importance to the respondent of the issue in this motion and the prospect of hundreds of deemed admissions that she did not intend to make with a trial date fast approaching.
[12] Lastly, I consider the reasonableness of the applicant’s behaviour in relation to this motion and find it wanting. For instance, his material was unnecessarily voluminous and repetitive, in some instances. He added to the respondent’s costs unnecessarily by failing to respond to numerous communications from her counsel in the days leading up to the motion date. That led to a further conference before the case management judge that he failed to attend or even acknowledge the communications advising him of the date. Then, there was the applicant’s late-night notice sent at 11:01 p.m. on a Sunday evening to advise that he would not be proceeding with cross-examinations in the morning despite prior and timely notice from the respondent that she did not intend to cross-examine him. Also of considerable concern is the questionable way the applicant presented his evidence to the court on the motion insofar as the version of the March 2020 Request to Admit attached to his affidavit as Exhibit 2 was not the same document that he served on the respondent’s counsel in March 2020. Specifically, the document served was unsigned and dated March 10th, 2020 [emphasis added] whereas the one placed before the court on this motion was signed and dated March 10, 2020 [emphasis added].
[13] For these reasons, I find partial indemnity costs of $10,000 to the respondent to be reasonable, proportionate and fair. The applicant shall have thirty days to pay the full amount failing which any amount outstanding shall incur interest at the Bank of Canada prime rate in effect on the thirty-first day after this endorsement is released.
Justice D. Summers
Date: November 29, 2022
COURT FILE NO.: FC-16-1046 DATE: 2022/11/29
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Michael Raymond Switzer, Applicant -and- Colleen Catherine Joan Switzer, Respondent
BEFORE: Justice D. Summers
COUNSEL: Applicant is self-represented Susan Sviergula as agent for Eric Letts, for the Respondent
COSTS ENDORSEMENT
D. SUMMERS J.
Released: November 29, 2022