Rummerfield v Rummerfield, 2018 MBCA 3

Citation: Rummerfield v Rummerfield, 2018 MBCA 3 Date: 20180112 Docket: AF17-30-08801 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice William J. Burnett Madam Justice Jennifer A. Pfuetzner Madam Justice Janice L. leMaistre BETWEEN : TERRY GEORGE RUMMERFIELD ) C. B. Paul ) for the Appellant (Petitioner) Respondent ) ) L. R.

Fishman - and - ) for the Respondent ) KATHLEEN MARIE RUMMERFIELD ) Appeal heard and ) Decision pronounced: (Respondent) Appellant ) January 12, 2018 BURNETT JA (for the Court): [ 1 ] The respondent wife appeals a decision dismissing her motion to extend the time to perfect her appeal of an assessment of costs by an assessment officer and making various costs awards. [ 2 ] The assessment of costs related to a motion made by the respondent that was deemed to be abandoned under the Manitoba, Court of Queen’s Bench Rules , Man Reg 553/88, r 70.20(7).

The assessment officer, in her certificate of assessment, relied upon that rule as the source of her authority to make the assessment of costs. Rule 70.20(7) does not provide that a party is entitled to costs of an abandoned motion. [ 3 ] In his decision, the motion judge said that all of the criteria to extend the time to appeal had been met with the exception of arguable grounds for appeal.

Specifically, in response to the respondent’s argument that the assessment officer did not have jurisdiction to assess costs, the motion judge interpreted the Court of Queen’s Bench Rules in “a commonsense way” and concluded that the assessment officer had jurisdiction “when liberally interpreting [them].” [ 4 ] Whether viewed as a question of law subject to the correctness standard or on a more deferential basis (given the discretionary nature of the motion judge’s decision), we are of the view that the motion judge erred.

Section 13(3) of The Court of Queen’s Bench Act , CCSM c C280, provides that an assessment officer has the powers and duties provided by statute or the rules. The jurisdiction of an assessment officer is clearly limited. Rule 70.20(7) provides no authority for an assessment of costs, and in this case, there was no order or other statutory basis for the assessment which was performed. [ 5 ] As the assessment officer did not have jurisdiction to make an award, her assessment is a nullity. The appeal of the motion judge’s decision to dismiss the respondent’s motion to extend time is therefore allowed.

It follows that the motion judge’s award of costs in the sum of $2,000 in relation to that motion is set aside, and the respondent shall receive costs in the same amount. [ 6 ] The remaining issues relate to the discretionary costs awards made by the motion judge. The Supreme Court of Canada has repeatedly said that such awards will only be set aside on appeal if the court below has made an error in principle or if they are plainly wrong.

In the family law context, this Court has recently observed that a highly deferential standard of review applies to costs awards and that this standard has been consistently applied by appellate courts in family law matters ( Johnson v Mayer , 2016 MBCA 41 at paras 21-22 ). [ 7 ] With the exception of the costs award relating to the motion to extend time, we have not been persuaded that the motion judge made an error in principle or that his other costs awards are plainly wrong.

We would therefore dismiss the appeal as it relates to those awards. [ 8 ] There has been divided success, and the parties shall each bear their own costs in this Court.

JA JA JA