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London Registry No. 53/06

DATE:   2006·III·14

CITATION:  Biggin v. Maloney

 

SUPERIOR  COURT  OF  JUSTICE

FAMILY  COURT

BETWEEN:

 

WENDY  ADELLE  BIGGIN,

Applicant,

 

—  AND  —

 

HAROLD  LISLE  MALONEY,

Respondent.

 

Before Justice Grant A. Campbell

Endorsement inscribed on 14 March 2006

CIVIL PROCEDURE — Costs — Assessment of quantum — Inclusions — Lawyer’s fees — Time properly spent on case — Court concluded that, in relatively simple case, lawyer’s time on legal research was excessive in era of online searches of electronic databases — Moreover, actual argument on motion was about 1 hour — Experienced lawyer would have known to bring other files or material on which to work while waiting for motion to proceed and could not expect loosing party to be responsible for lawyer’s spending over 5 hours in courthouse that day.

CIVIL PROCEDURE — Costs — Entitlement — General — Nature of relationship between lawyer and litigant — Nature of relationship between lawyer and litigant is of no concern to court where there no change in expectation of or duty to court ordinarily required from advocate for party — Successful party was clearly entitled to costs and bill from lawyer, who appeared on motion as “agent” and not as lawyer on retainer, was at inordinately low hourly rate — Lawyer’s appearance as “agent” for successful party has no effect on entitlement to or quantum of costs claimed.

STATUTES AND REGULATIONS CITED

Family Law Rules , O. Reg. 114/99 [as amended], rule 18.

CASES CITED

Bank of Montreal v. Gardner(1998), 76 A.C.W.S. (3d) 1079 [1998] O.J. No. 180, 51 O.T.C. 28, 1998 Cars­well­Ont 89 ( Ont. Sm. Cl. Ct.).

Garson v. Braithwaite(1994), 34 C.P.C. (3d) 87, [1994] O.J. No. 1662, 1994 Cars­well­Ont 1046 (Ont. Gen. Div.).

Lynch v. Lynch, (1999), 1 R.F.L. (5th) 309, [1999] O.J. No. 4559, 1999 Cars­well­Ont 4373 ( Ont. Fam. Ct.).

Agent Edward J. Hopkins  .......................................................................................   for the applicant

Paul F. Lepine  ....................................................................................................   for the respondent

[1]                        G.A. CAMPBELL (endorsement):—  I have received written submissions from both parties.

[2]                        Ms. Biggin’s “agent”, Mr. Hopkins (who has been a duly qualified lawyer and member of the Law Society of Upper Canada for over four years), seeks an order for “full costs” against Mr. Maloney.  Attached to his submission is a bill of costs for $4,115.22.  It includes fees of $3,840.00 plus some small disbursements and G.S.T.  Mr. Hopkins has charged his time at $100 per hour.  This is an inordinately low hourly rate for someone with his years of experience.  Perhaps his discounted hourly rate has something to do with why he appeared on the motion as an “agent” for the applicant and not as counsel, on retainer.  Perhaps not.  One can only speculate and, as observe later, I decline to do so.  In any event, the amount charged is at the lowest end of “very reasonable.”

[3]                        I wondered whether costs can or should be awarded to a successful party (in which group Ms. Biggin certainly belongs) for whom an “agent” appears.  When such an agent is an advocate who regularly appears before the court as counsel, should the court know (or even enquire) of the details of the nature of the arrangement between the litigant and him or her?  I think not.  There are a myriad of professional and personal relationships that exist, wherein a lawyer may choose to ‘discount’ his or her hourly rate or appear “for free” because the case is one that he or she finds interesting, or for other altruistic reasons.  It is not for a court to delve into the reason why counsel may choose to be designated on the court record as “agent,” counsel” or “friend” of the litigant.  The nature of the relationship between lawyer and litigant is theirs to establish.  The ramifications of that relationship remain between them and the lawyer’s governing body, the Law Society of Upper Canada.  The nature of a litigant-and-lawyer relationship does not alter the expectation of or duty to the court that is required of an advocate for a party.  He or she must discharge his or her duty to the instructing litigant to the best of his or her ability.  The lawyer still also owes a duty to and has a responsibility to the court to be fair, professional, prepared and honourable.  Regardless of the terms of the relationship between litigant and lawyer, and how he or she seeks to have his or her role described, the lawyer (who continues to be duly licensed to practice law in this Province) remains an officer of the court with all of the obligations, responsibilities, and rights that that role suggests.  Therefore, a court should restrict its consideration of this issue to the reasonableness of the claim for costs, given the circumstances and the nature of the “step” in the litigation.  The court should not be influenced by the nature of the relationship between the litigant and his or  her lawyer in this determination.

[4]                        In this regard, I have read the cases of Bank of Montreal v. Gardner(1998), 76 A.C.W.S. (3d) 1079 [1998] O.J. No. 180, 51 O.T.C. 28, 1998 Cars­well­Ont 89 (Ont. Sm. Cl. Ct.), (where the issue was a party’s entitlement to costs in Small Claims Court when (s)he was represented by a non-lawyer “agent”), and Garson v. Braithwaite(1994), 34 C.P.C. (3d) 87, [1994] O.J. No. 1662, 1994 Cars­well­Ont 1046 (Ont. Gen. Div.) (where costs were denied a litigant in a landlord/tenant dispute when the tenant’s ‘agent’ was neither lawyer, law student nor law clerk).  I have especially been influenced by the dicta of Justice Craig Perkins in Lynch v. Lynch, (1999), 1 R.F.L. (5th) 309, [1999] O.J. No. 4559, 1999 Cars­well­Ont 4373 ( Ont. Fam. Ct.), at paragraph 13 wherein he observed (my emphasis):

[13]          The father’s counsel pointed out that the son does not have counsel retained and on the record acting for him, but rather counsel who has been acting, without a full retainer, as his “agent”.  This use of the word “agent” is in a sense inaccurate: the son’s lawyer on the motions is a member of the bar, not an unaccredited person.  The father’s lawyer referred me to Garson v. Braithwaite, [1994] O.J. No. 1662 (Gen. Div.) as authority for the proposition that the court cannot award costs in connection with services provided by an agent.  That case is indeed authority for that proposition, but “agent” as used in the case means someone who is not a lawyer, student at law or clerk supervised by a lawyer.  The case does not exclude and indeed implicitly accepts costs for services provided by a lawyer, even if acting without a retainer or acting gratis.  I reject utterly any suggestion that a person who is unable to afford to retain counsel, but finds counsel who is willing to act without a formal retainer or even gratuitously, is therefore not eligible to claim for the costs of the services of counsel.

[5]                        I entirely agree with Justice Perkins.  The fact that Mr. Hopkins chose to appear as agent for Ms. Biggin is irrelevant to the issue of whether an award of costs should be granted or the amount of such order.

[6]                        Mr. Lepine argues that “The parties themselves, prior to the judgment being issued had worked out a plan including an agreement on costs that was satisfactory to both parties.”  The e-mail traffic between Mr. Hopkins and Mr. Lepine (and between Mr. Lepine and his client) appears to confirm that all was indeed resolved before the “deadline” set by the court.  (At which time the court said it would endorse its decision on the record, if no settlement had been achieved.)  Unfortunately for Mr. Maloney (who by 11:08 a.m. that morning — six minutes after he had received the draft order from his lawyer — had agreed to all of the terms of settlement, including costs payable by him of $750.00), Mr. Lepine (who was well aware of the noon “deadline”) for some reason did not convey his client’s acceptance of Ms. Biggin’s offer to settle to Mr. Hopkins.  It is a simple first-year law-school contract-law concept that an offer needs an acceptance (that is made known to the offeror) before a “meeting of the minds” is achieved, thus creating a binding contract.

[7]                        Mr. Maloney’s acceptance was not conveyed to Mr. Hopkins in time.  It was not until 4:36 p.m. that day, after having been advised that the court had released its endorsement (which was nowhere as favourable to Mr. Maloney as he had thought that he had negotiated), that Mr. Lepine objected to Mr. Hopkins’ seeking additional costs.  This failure of communication will unfortunately result in Mr. Maloney’s being held responsible for greater costs than he had thought that he had agreed to pay.

[8]                        Mr. Hopkins now includes his bill for fees for services rendered from 18 January 2006 to and including costs submissions (3¾ hours) and for settling, signing and “entering” the order (5¼ hours).

[9]                        Costs for this motion must relate to preparation for and attendance at only this “step” in the proceedings.  I cannot fathom how an earlier simple uncontested adjournment of the motion before a clerk and “ensuring a proper (?) adjournment of the matter” on another day (when he did not attend at all) could consume 2¼ hours.  In any event, costs for those days are not included in this order as no one sought, nor were any costs ordered for them.

[10]                   This motion was not at all complicated.  Although some case-law research was necessary and although Mr. Hopkins did indeed produce several relevant and persuasive cases relating to the circumstances of one parent’s removing children to another locality before trial, I cannot understand how Mr. Hopkins could invest 10½ hours obtaining and reading the essence of those cases.  Surely in this electronic age, Mr. Hopkins would perform the same task that I, or any other legally trained person, would and “click” the word “mobility” into the QuickLaw website.  His computer would then have given him the relevant case law.  I decline to award costs for the amount of time claimed for this part of the preparation for the argument.

[11]                   Mr. Hopkins also claims 5½ hours for his attendance to argue the motion.  I recall that, once started, the argument did not go on longer than one hour, more or less.  Perhaps Mr. Hopkins was in the courthouse for over five hours that day.  But after over four years in practice, he should have learned to bring other files or work so he could have continued other work during the waiting time for this motion to proceed.  Mr. Maloney should not be held entirely responsible for the unavailability of a judge to hear the matter at 10:00 a.m., assuming that both counsel were ready to argue the motion at that time.

[12]                   In any event, the size of a costs order must have some connection to the complexity and difficulty of the issue; a party’s reasonableness; any offers of settlement made under rule 18 of the Family Law Rules, O. Reg. 114/99, as amended; and the reasonable amount of time that attentive and competent counsel would be expected to spend on the issue.

[13]                   I agree with Mr. Lepine’s submission that an order for costs of $1,550.00 (which represents 15½ hours invested by Mr. Hopkins at $100/hour) plus G.S.T. is an amount that Mr. Maloney should have expected to pay for costs, and I so order.