Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Manuela Geddes, Plaintiff
AND:
Werner Schuerch, Defendant
BEFORE: Justice J. Howie
COUNSEL: Steven Pickard, Counsel, for the Plaintiff Michael Polvere, Counsel, for the Defendant
HEARD: April 22, 2025
ENDORSEMENT
1For reasons delivered orally, I concluded that it was necessary for the moving party to bring an adjournment to seek directions on the conduct of an examination, because of the behaviour of the lawyer for the responding party.
2In making an order, for costs, I am guided by section 131 of the Courts of Justice Act, Rule 57 and the authorities decided under this legislation and regulation which urge this court to make an order for costs consistent with the reasonable expectations of the parties.
3Furthermore, I am guided by Rule 37.14(2). This Rule provides that a court may order the person to pay personally and forthwith the cost of the motion, any cost thrown away and the cause of any continuation of the examination.
4The moving party seeks $14,400 in fees plus disbursements and HST.
5The responding party makes the following submissions:
a. generally speaking, the costs sought are excessive. However, the responding party did not provide me with their corresponding bill of costs or summary of time spent. He simply alleges that the moving party spend too much time and that the sum of “less than $3000” is more appropriate;
b. it is improper to order cost thrown away of a portion of the examination because any costs ordered here would be considered a windfall. I disagree. The simple fact is that the responding party took positions that made it impossible for a meaningful examination to continue. Secondly, Rule 34.12(2) specifically invites the court to order costs away;
c. the Plaintiff was successful on February 25, 2025, when they requested to adjourn the motion to a Special Appointment. I agree. It appears that the time spent on February 25, 2025, represents $2565.00 of the total request;
d. transcripts should not be claimed as a disbursement on costs of a motion as they will be used in the action itself. I disagree. The transcripts were a necessary and vital element of this motion. The responding party is at liberty, of course, to argue “double recovery” if transcript disbursements are sought at the conclusion of trial;
e. there is no explanation for the $540.00 disbursement for “agents’ fees”;
f. of the 27.4 hours that work rained in preparation for the motion, 5 of those hours were by a lawyer and the balance was made up by articling students and clerks. I agree somewhat. The involvement of articling students and clerks likely reduced the overall costs. However, 27.4 hours is significant time and there was likely some overlap in the time spent.
6Taking all of the elements into consideration, the simple fact is that this motion was entirely unnecessary but for the conduct of the responding party.
7Accordingly, I assess the costs of this motion as follows:
a. fees - $9000.00
b. HST on fees - $1170.00
c. disbursements - $1834.00
d. HST on disbursements - $238.00
8The total owing is $11,242.
9Should the costs be paid by the lawyer personally? The Rule specifically gives me the discretion to make such an order. The moving party asks that a “portion” (without stating how much) should be paid personally. The responding party states that such an order is “inappropriate.”
10The Supreme Court of Canada states that the threshold for exercising discretion against a lawyer personally is a high one: Director of Public Prosecutions v. Jodoin, 2017 SCC 26. Nonetheless, the lawyer, most egregiously, passed a note between himself and the party during the examination and then, unilaterally, determined that it was appropriate to take a break to have a “full discussion” with his client. This conduct, in particular, crossed the line and requires the exceptional order for costs against the lawyer, personally.
11Accordingly, 50% of the above order costs shall be paid by the solicitor for the responding party within 30 days.
Justice J. Howie
Date: June 17, 2025