By Michael Marra
In two recent decisions the Supreme Court of Ontario has commented on the approach of counsel in the conduct of litigation.
Kearney v. Hill, 2017 ONSC 6306; 139 O.R. (3d) 786
In Kearney v. Hill Justice Monahan was required to determine entitlement to costs in an action that had been settled in mediation. The parties agreed to have the costs issue determined by the Court.
The Plaintiff ("Mary Jr.") had spent $270,000 in fees and disbursements while the Defendant ("Carol") had spent $150,000. The total value of the estate including the house was approximately $800,000.
Mary Jr. and Carol were sisters. Their father passed away in April 2014 at the age of 89. In July 2013, their mother, Mary Sr. executed Powers of Attorney for Personal Care and Property which appointed Carol as her attorney. In 2015 Mary Sr. was diagnosed with Alzheimer's dementia, and following hip surgery in 2015 resided in a long term care facility.
Following Mary Sr.'s move to the long term care facility Carol was of the opinion that it was unrealistic to expect that her mother would ever move back into her home. She was of the view that the home should be sold in order to eliminate carrying costs and use the proceeds to help with Mary Sr.'s ongoing care expenses.
Mary Jr. was adamant that that the house not be sold. Following an exchange of emails over the course of the summer of 2015, Carol agreed that no steps would be taken to sell the property without Mary Jr.'s agreement. However, in December 2015 Carol again suggested that the home be sold, noting that the unoccupied house was at risk of vandalism and damage and was proving difficult to insure.
After some extremely negative exchanges, counsel for Mary Sr., on Carol's instructions wrote Mary Jr. advising that the home would be sold and invited Mary Jr. to remove any personal items that she wished to retain.
On May 16, 2016 Mary Jr. commenced an action to restrain the sale and sought damages for $1,500,000 alleging that Carol had mismanaged her mother's affairs and that the POA's were obtained by fraud and undue influence. Carol retained counsel who provided a settlement letter to Mary Jr.'s counsel on June 13, 2016. The proposal included an informal accounting of her actions as attorney for property or a formal passing of accounts if demanded. Carol also offered to have the home sold to Mary Jr. at fair market value as Mary Jr. had expressed a wish to move into the home.
Justice Monahan found that the June 2016 settlement letter was "a good faith and reasonable attempt to resolve the matter and avoid the need for further litigation." Rather than respond to the letter, counsel for Mary Jr. served two motions, one for preservation of assets and one for a passing of accounts.
On August 3, 2016 Mary Sr. passed away. Justice Monahan indicated that "one might have thought that the passing of Mary Sr. would have caused the parties to pause and reassess whether further litigation was necessary or whether there were other options that might be fruitfully pursued." Notably the POA's ceased to be of any effect as of the date of Mary Sr.'s passing.
To the contrary, Mary Sr.'s counsel noted pleadings closed against Carol and rejected Carol's proposal that the RBC be appointed as Estate Trustee in place of Carol. The litigation carried on with "many volumes of materials" filed by the parties. At a January 22, 2017 Case Conference the parties agreed to attend mediation on April 11, 2017 where all issues were settled, essentially in accordance with Carol's June 2016 settlement letter.
Not surprisingly, Justice Monahan found that "taking all of the factors and considerations into account, I conclude that there are exceptional circumstances justifying a significant cost award in favour of Carol, notwithstanding the fact that the parties have settled the litigation. He states further that "had Mary Jr. been willing to consider alternatives to further litigation in June 2016 or following Mary Sr.'s death in August 2016 the matter could have been resolved at a much earlier stage, thereby avoiding the need for the costly and bitter litigation which ensued."
Carol submitted a Bill of Costs on a partial indemnity basis in the amount of $93,076.05. Given that Carol had previously received a payment toward her costs in the amount of $20,000 from the Estate, Justice Monahan ordered Mary Jr. to pay $75,000 in costs to Carol.
Regarding the conduct of the litigation, Justice Monahan referenced the 2013 Report of the Action Committee on Access to Justice in Civil and Family Matters as chaired by Supreme Court Justice Thomas Cromwell ("the Action Committee"). He indicated that the Action Committee argued that to improve the system "we need a new way of thinking that concentrates a simplicity, coherence, proportionality and sustainability at every stage of the process." He stated that "this new way of thinking must inform the way in which all participants approach the civil justice system, including the judiciary, the bar, litigants, government and the public. The approach adopted by Mary Jr. and her counsel exhibited none of the new approach called for by the Action Committee".
Morland Jones v. Morland-Jones 2018 ONSC 3758
A somewhat less gentle commentary on the conduct of litigation was made by Justice Kristjanson in the recent family law case Morland Jones v. Morland-Jones 2018 ONSC 3758
In this case the parties has settled the issues between them by way of a final order but encountered difficulties regarding the identification and return of certain items of personal property. Counsel exchanged correspondence for a number of months following which the husband's counsel booked a long motion date for a contempt motion without first canvassing the dates with the wife's counsel and then served the motion personally on the wife without providing any advance notice or courtesy copy to the wife's counsel. Thereafter the husband's counsel refused to agree to an adjournment request.
Justice Kristjanson expressed concern that the husband's counsel's actions deprived other litigants of the opportunity to have their cases heard and failed to promote the "primary objective" of the Family Law Rules as set out in Rule 2:
(2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).
DEALING WITH CASES JUSTLY
(3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).
DUTY TO PROMOTE PRIMARY OBJECTIVE
(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.
Justice Kristjanson goes on to emphasize that "civility and professionalism contribute to the primary objective of the Family Law Rules'. She notes that "this case is a good illustration of what happens when lawyers fail to comply with the principles of civility and professionalism.
In dismissing the contempt motion with costs, Justice Kristjanson went so far as to note that she provided the husband's counsel with a copy of the Advocate's Society Principles of Professionalism and Civility and sets out the following excerpts in her reasons:
Cooperating with Opposing Counsel
5. Advocates should avoid unnecessary motion practice or other judicial intervention by negotiating and agreeing with opposing counsel whenever practicable.
6. When advocates are about to send written or electronic communication, or take a fresh step in a proceeding which may reasonably be unexpected, they should provide opposing counsel with some advance notice where to do so does not compromise a client's interests.
Cooperating with Opposing Counsel on Scheduling Matters
11. Advocates should consult opposing counsel regarding scheduling matters in a genuine effort to avoid conflicts.
12. In doing so, advocates should attempt to accommodate the calendar conflicts of opposing counsel previously scheduled in good faith for hearings, examinations, meetings, conferences, vacations, seminars or other functions.
13. Advocates should agree to reasonable requests for scheduling changes, such as extensions of time, provided the client's legitimate interests will not be materially and adversely affected.
Accommodating Requests from Opposing Counsel
30. Advocates, and not the client, have the sole discretion to determine the accommodations to be granted to opposing counsel in all matters not directly affecting the merits of the cause or prejudicing the client's rights. This includes, but is not limited to, reasonable requests for extensions of time, adjournments, scheduling of events, and admissions of facts. Advocates should not accede to the client's demands that they act in a discourteous or uncooperative manner toward opposing counsel.
- The demands on the justice system and the costs of accessing the system are well documented and are an ever present concern in the Courts across the country.
- As a result, Courts are increasingly stepping beyond the strict issue it is being asked to determine;
- Lawyers are accountable to the justice system and opposing counsel. It is no longer good enough to rely on the age old "I am following my client's instructions" justification.
- Early out of court resolution options and processes such as mediation must be explored in detail.
- Incurring unnecessary costs, fees and disbursements will not be appreciated by clients and certainly will not be tolerated by our Courts.