Court File and Parties
Court File No.: FS-24-146-0000 Date: 2024 11 01 Superior Court of Justice – Ontario 491 Steeles Avenue East, Milton, Ontario L9T 1Y7
Re: John Richard Marshe, Appellant And: Lisa Irene Bombardieri, Respondent
Before: C. Chang J.
Counsel: J. Marshe, Self-represented L. Bombardieri, Self-represented
Heard: October 31, 2024 (in writing)
Endorsement
1The appellant, John Richard Marshe, brings this urgent motion for leave to appeal the August 14, 2024 costs order of the trial judge following the disposition of his motion to change. He was directed by Coats J. on October 10, 2024 to bring the motion on an urgent basis.
2Mr. Marshe submits that he should be granted leave to appeal because, in making the costs order, the trial judge made errors of judgment, law, and procedure. His essential complaint is that his costs submissions were improperly rejected by the court office for being non-compliant with the applicable direction from the trial judge and were therefore not provided to or considered by her in deciding costs. He also argues that the costs submissions of the respondent, Lisa Irene Bombardieri, were improperly accepted by the court office and provided to and considered by the trial judge in deciding costs. Mr. Marshe submits that the trial judge should have received and considered his submissions before making her order.
3Ms. Bombardieri, who is an experienced family law lawyer, opposes this motion for leave to appeal the costs order. She submits that, in breach of both the October 10, 2024 order of Coats J. and rule 61.03(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Mr. Marshe’s motion materials are incomplete and, “on those grounds alone”, the motion for leave should be dismissed. Ms. Bombardieri further submits that the court office properly rejected Mr. Marshe’s costs submissions, Mr. Marshe failed to take steps to rectify the situation, and he has failed to meet the high threshold applicable to motions for leave to appeal costs orders.
4For the reasons set out below, I am dismissing Mr. Marshe’s motion because he has failed to satisfy me that he has met the applicable test for leave to appeal the costs order. I therefore need not consider, and I do not consider, any of the other arguments proffered by Ms. Bombardieri, which, in any event, are not persuasive.
Factual Background
5Mr. Marshe brought a motion to change in the Ontario Court of Justice in January 2023, which was tried later that year. The trial judge dismissed the motion to change by final order dated December 16, 2023 and provided the parties with directions pertaining to the delivery of their respective written submissions on costs.
6Mr. Marshe served and attempted to file his costs submissions on December 22, 2023, but was notified on January 4, 2024 that his proposed filing had been rejected by the court office. Ms. Bombardieri served and successfully filed her costs submissions. The trial judge released her costs endorsement on August 14, 2024, in which she noted that Mr. Marshe “failed to comply w/ the court’s direction w/ respect to filing submissions on costs”; presumably as a result of his unsuccessful attempt to file those submissions. The trial judge ordered that Mr. Marshe pay costs to Ms. Bombardieri in the all-inclusive amount of $20,224.22, reduced from the $46,618.75 amount claimed by Ms. Bombardieri.
7Mr. Marshe only appeals from the August 14, 2024 costs order; not the December 22, 2023 final order.
Issues
8The sole issue for determination on this motion is whether Mr. Marshe should be granted leave to appeal from the stand-alone costs order.
Analysis
9As set out above, I am dismissing the motion for leave to appeal.
10The test for granting leave to appeal a stand-alone costs order (i.e., where no appeal has been taken from the substantive order or judgment) is a stringent one. Such leave is granted sparingly and only in obvious cases where the appellate court is satisfied that there are strong grounds upon which it could find that the trial judge erred in the exercise of her discretion or that the costs order is plainly wrong (see: McNaughton Automotive Ltd. v Co-operators General Insurance Company, 2008 ONCA 597, at paras. 24-25; Midland Resources Holding Limited v Bokserman, 2022 ONCA 73, at para.35; McKay v Park, 2019 ONCA 659, at para.19). I am mindful of my proper role on this motion, which is not to determine the proposed appeal or to substitute the trial judge’s decision with my own.
11I am not satisfied in the case-at-bar that there are strong grounds upon which the court could find that the trial judge erred in exercising her discretion in deciding costs or that her costs order is plainly wrong.
12Mr. Marshe submits that his costs submissions were improperly rejected by the court office and therefore never made it before the trial judge. As a result, he argues, she incorrectly proceeded on the basis that Mr. Marshe had failed to follow her directions and erred by deciding the issue of costs without the benefit of his submissions.
13I do not accept these arguments.
14In his motion materials, Mr. Marshe spilled a considerable amount of ink explaining why he says the court office improperly rejected his proposed filing and improperly accepted Ms. Bombardieri’s. He, in painstaking detail, parsed out how he says his costs submissions were compliant with the trial judge’s direction and how Ms. Bombardieri’s were not. Ms. Bombardieri adopted a similar approach in her responding materials: parsing out in painstaking detail how she says Mr. Marshe’s costs submissions were non-compliant. In my view, none of this is of any moment because it, in no way, speaks to any alleged error by the trial judge.
15Mr. Marshe doesn’t argue that the trial judge did receive his costs submissions but chose to completely disregard them. There is, in any event, no evidence to support such an an argument. It is undisputed that the trial judge proceeded with her determination of costs on the basis that Mr. Marshe had filed no submissions. In my view, it was completely reasonable for her to do so because Mr. Marshe’s submissions were not before her and nothing in Ms. Bombardieri’s costs submissions appeared to be in response to any submissions from Ms. Marshe.
16Furthermore, there is no evidence before me about what, if any, steps Mr. Marshe took to re-file his costs submissions in the more than seven months between when his first proposed filing was rejected and when the trial judge released her decision. Even after the costs order was made, Mr. Marshe had resort to rule 25(19)(e) of the Family Law Rules, O. Reg. 114/99, but there is no evidence that he brought any applicable motion.
17There is accordingly no legitimate basis to criticize the trial judge’s exercise of discretion or her decision on costs because she failed to consider submissions that she did not have and that Ms. Marshe failed to make reasonable efforts to get to her.
18It is noteworthy that, in his unfiled costs submissions, Mr. Marshe sought an order that there be no costs of his failed motion to change or, alternatively, that Ms. Bombardieri’s claimed costs (which Mr. Marshe predicted would be in the amount of $45,177.40) “ought to be significantly reduced”. As set out above, Ms. Bombardieri sought $46,618.75 and the trial judge ultimately set the amount of costs at $20,224.22. Although these facts are not relevant to my determination of this motion for leave to appeal, they beg the question of whether the trial judge’s costs determination would have been any different had she actually received Mr. Marshe’s submissions.
19In the result, I find that Mr. Marshe has failed to meet the stringent test for obtaining leave to appeal a stand-alone cost order. His motion must therefore be dismissed.
Costs
20Ms. Bombardieri seeks her costs of opposing this motion on a full recovery basis in the all-inclusive amount of $7,365.00. Mr. Marshe’s 14B motion form does not seek costs and he has not filed a bill of costs.
21I am not prepared to order any costs of this motion in favour of either party.
22Although a successful party is presumptively entitled to the costs of a motion, that party’s unreasonable behaviour may result in the deprivation of all or part of her or his costs (see: Family Law Rules, rr. 24(1) and (4)).
23In my view, although Ms. Bombardieri was “successful” in opposing this motion, her approach to it disentitles her to recover any costs. Borrowing from French statesman, Charles-Maurice de Talleyrand, Ms. Bombardieri has learned nothing and forgotten nothing: her approach to this motion mirrors her approach before the trial judge.
24In her costs endorsement, the trial judge made, among others, the following observations,
[b]oth parties filed extensive material dedicated to establishing the fact of [their] high conflict relationship and lengthy history of litigation;
[Ms. Bombardieri’s] response was unnecessarily effusive; her reproduction of large portions of Justice O’Dea’s reasons in her materials in support of her argument did not assist the court;
and
[Ms. Bombardieri’s] focus on [Mr Marshe’s] past and ongoing deficits far exceeded what was materially relevant to the court at the hearing.
25In responding to this motion for leave to appeal, Ms. Bombardieri filed a 103-page affidavit that not only rehashed what she put before the trial judge, but is also replete with inadmissible opinion, legal argument, and inflammatory rhetoric. These have no proper place in an affidavit (see: China Yantai Friction Co. Ltd. v Novalex Inc., 2024 ONSC 608, at para. 16). Even more troubling is the fact that much of that argument or opinion has little more than the most tenuous of footing in the evidence and is based on little, if anything, beyond Ms. Bombardieri’s supposition, conjecture, and/or perception of Mr. Marshe’s and others’ personal shortcomings and dishonest motives. Ms. Bombardieri’s ire is directed at Mr. Marshe, his mother, and his partner. Some even seems to be directed at the trial judge’s costs decision.
26Furthermore, instead of filing a proper bill of costs to support her claimed $7,365.00 in full recovery costs, Ms. Bombardieri has filed a document that appears to contain time dockets for herself and two other named timekeepers. I say “appears” because the document does not seem to have been extracted from a legal billing program. In any event, that document fails to provide any details or particulars of those other timekeepers, how (if at all) their claimed time is properly collectible on this motion, or that any of the claimed time was billed to, or paid by, Ms. Bombardieri. Furthermore, Ms. Bombardieri proffers no basis for her claimed full recovery of costs, other than, I suppose, her view that the motion should be dismissed by the court.
27As observed by the trial judge, “high conflict comes at a high price”. On this motion, the parties have clearly chosen to persist in the high conflict tenor of their dealings with each other and to continue testing the height of the price that must come with it.
28There shall be no costs respecting this motion.
Disposition
29I therefore make the following orders:
a. Mr. Marshe’s motion is dismissed; and
b. there shall be no costs respecting this motion in favour of either party – they shall each bear their own.
C. Chang J.
Date: November 1, 2024