Court File and Parties
COURT FILE NO.: FS-24-00041158 DATE: 20241029 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Bryant Ramdoo, Applicant AND: Ashley Houlden, Respondent
BEFORE: M. Sharma, J.
COUNSEL: Heather Hansen, for the Applicant Chelsea Hooper (former counsel), for the Respondent Susan M. Sack appearing on behalf of Ms. Hooper
HEARD: October 29, 2024
Costs Endorsement
[1] On September 19, 2024, I heard the Applicant father’s (“Father”) motion for graduated increases in parenting time with the parties’ son. The Applicant was successful on the motion, and costs of $7,500 were ordered payable by the Respondent to the Applicant.
[2] In my September 19, 2024 Endorsement, I identified a recurring practice concern that judges hearing family matters regularly face when lawyers, in preparing motion material, do not comply with the Consolidated Provincial Practice Direction for Family Proceedings at the Superior Court. I stated the following:
Practice Concern
At the commencement of my motion list, I expressed concern with what may appear to be a trivial problem. But for reasons I explain, it is a vexing problem that negatively impacts the administration of justice in this province and can result in unfairness.
When reviewing motion material, I immediately noticed that the Respondent’s factum was not double-spaced as required by the Consolidated Provincial Practice Direction for Family Proceedings at the Superior Court of Justice (para. E.1.a). At most, it is a 1.5-space. This has real impacts.
a. It is contrary to a Practice Direction of this Court. Lawyers who seek to cram evidence and argument within the page restrictions without regard to what is clearly prescribed in the Practice Direction show disrespect for the administration of justice and the prescribed practices issued by the Chief Justice or Regional Senior Justice.
b. It fails to appreciate the work judges must perform. Judges hearing family matters must read hundreds of pages each day. With CaseLines, this reading is done almost entirely on screens. When material is crammed to fit within page restrictions, it becomes very difficult to read and creates real challenges for judges. It reflects a lack of appreciation for the work judges must perform in the exercise of their judicial duties.
c. It can result in unfairness. While I would rather not have had to do so, I found it necessary to do the following to demonstrate a point. I downloaded the parties’ factums, cut and pasted the text in the .pdf documents into Word documents, and performed a word count. The Applicant’s Factum totalled about 6,000 words. The Respondent’s was about 10,000 words. Procedurally, if gone unnoticed, this would not be fair to the Applicant. This Court has an obligation to ensure that the process is fair for all parties who appear before it.
I find that the Respondent’s counsel did not follow the Practice Direction because her Factum was not double-spaced; at best, it was 1.5-spaced. This is a persistent and regular problem before this Court. Scolding counsel appears to have no effect. I am of the view that it is necessary for the Court to sanction such conduct within the tools it has available.
I considered adjourning this matter to require the Respondent to refile material. This would not be fair to the Applicant who had been seeking relief. It would also not be fair to the Respondent to have her redo her materials, at some cost. I had already read all the material.
I considered a cost sanction against the Respondent. However, the Respondent should not be penalized because her lawyer’s breached this Court’s Practice Direction.
I am aware of authority from the Court of Appeal and the Supreme Court of Canada which suggests that the threshold to be met is high when courts consider costs against a lawyer personally. Nonetheless, I have advised Respondent’s counsel that I am considering an order that she not charge her client for time spent on this motion, or that she pay an amount of costs personally. I also recognize that rule 24(9) of the Family Law Rules does not expressly deal with the situation in this case. However, rule 57.07(1) of the Rules of Civil Procedure is worded more broadly.
I directed Respondent’s counsel to appear before me on October 29, 2024 at 9:00 a.m. via Zoom. She may wish to retain counsel to make submissions.”
[3] Having considered the written submissions of Ms. Sack today, who appeared on behalf of Ms. Hooper, I decline to order Ms. Hooper or her firm to pay costs personally in this case. This is because I am not satisfied there is authority for me to make such an order given the facts of this case.
[4] R. 24(9) of the Family Law Rules, and r. 57.07(1) of the Rules of Civil Procedure are ill-equipped to address this situation. Those rules require that I find costs have been run up without reasonable cause or wasted by a lawyer. I cannot assess a cost incurred by the opposing party from having to read material that extends beyond what is prescribed in the Practice Direction. Furthermore, cost is not the harm that resulted. The harm or risk of harm is different in nature. Non-compliance with a page, spacing, or font requirement of the Practice Direction undermines the direction given by the Chief Justice of this Court, interferes with the administration of justice because of the workload problems it creates for judges, and can result in unfairness to an opposing party who does comply with the Practice Direction.
[5] While rule 57.07(1) of the Rules of Civil Procedure is broader and includes the phrase, “or other default”, jurisprudence from the Supreme Court of Canada suggests that this authority is to be used sparingly and with extreme caution: Young v. Young, [1993] 4 SCR 3 at p. 254; Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26, 408 D.L.R. (4th) 581, para. 25.
[6] A further source of authority to impose costs against a lawyer personally is the Court’s inherent jurisdiction. The jurisdiction “flows from the right and duty of the courts to supervise the conduct of the lawyers who appear before them and to note, and sometimes penalize, any conduct of such a nature as to frustrate or interfere with the administration of justice.” Jodoin, at para 18.
[7] But even in the exercise of the court’s inherent jurisdiction to impose costs against a lawyer personally, the Supreme Court of Canada has made clear that a sanction should only be imposed “where the lawyer’s acts have seriously undermined the authority of the courts or seriously interfered with the administration of justice.” Jodoin at para 29 [emphasis added].
[8] In this case, I would find that non-compliance with a Practice Direction issued by the Chief Justice undermines the authority of the Court and interferes with the administration of justice, for reasons given above. While it is a persistent and frustrating problem, I cannot conclude that it represents a serious undermining of the authority of the Court or a serious interference with the administration of justice.
[9] For these reasons, I do not make a cost order against Ms. Hooper personally.
[10] Yet the problem remains without sufficient remedial authority.
[11] Ms. Sack has proposed two alternatives that would allow a judge to address this issue. First, judges could refuse to read any materials in contravention of a Practice Direction. However, this would result in unfairness to litigants when the problem is caused by a lawyer. Especially for family litigants eager to obtain relief from this Court, I would have reservations concluding that is the fair and just solution.
[12] Secondly, judges could refuse to hear matters that go beyond page limits. This is also not a solution. Here, the page limits were fine. It was the spacing and resulting number of words that was the problem. I have no intention, and I trust my colleagues do not either, of conducting word counts for every matter I hear to police compliance with the Practice Direction.
[13] It appears to me that an express rule in both the Family Law Rules and the Rules of Civil Procedure, that conferred authority on the Court to hold lawyers to account for obvious breaches of the Practice Directions issued by the Chief Justice is the most practical solution. Given the frequency with which there is non-compliance with the Practice Direction, I would suggest this is a necessary rule amendment and recommend that the respective rules committees consider such an amendment.
SHARMA, J. Release Date: October 29, 2024