2017 ONCJ 159, 2017 ONCJ 159

Ontario Court of Justice CITATION : Albrecht v. Emerson , 2017 ONCJ 159 DATE : March 3, 2017 COURT FILE NO . 235/14 Applicant Counsel Jerzy Albrecht Tara Gatten Respondent Janette Emerson Cheryl Hodgkin Tobin J. In chambers COSTS ENDORSEMENT Issue 1 . Can costs be awarded for an aborted settlement meeting that was to be facilitated by counsel provided through Legal Aid Ontario? Facts 2 . Alternative dispute resolution can enhance access to justice for those involved in the family justice system in a timely, less expensive and much less adversarial manner than litigation.

In Windsor, Legal Aid Ontario (“LAO”) makes available experienced counsel who facilitate settlement discussions between the parties and their counsel at little or no cost to them. This has proved to be effective in helping litigants resolve their family law issues in a non-adversarial forum. Like the mediation service attached to the court, it is a process that is encouraged and supported by this court. 3 . In this case the parties were engaged in custody and access litigation. 4 .

When this case was before the court on September 30, 2016, counsel for the Applicant advised that the parties were making progress in expanding the Applicant’s access to his children. Counsel further advised that they intended to participate in an LAO settlement meeting (“settlement meeting”) to be held at the end of November 2016. Counsel for the parties requested that the next step in the case, that is, a settlement conference be adjourned until after the settlement meeting took place. 5 . On consent, the case was adjourned to December 8, 2016 for a settlement conference before me.

It was expected that any matters not resolved through the settlement meeting process would be addressed at that time. 6 . The Respondent and her counsel prepared for and went to the scheduled settlement meeting. 7 . The settlement meeting did not proceed because the Applicant did not go. 8 . On December 8, 2016 when the matter was before me for the settlement conference, the Applicant did not attend. No explanation for his absence was provided.

9 . As a consequence of the Applicant’s failure to participate in the settlement meeting and then the settlement conference, the Respondent brought a

Summary Judgment Motion seeking custody of the children and costs, including those incurred with respect to the settlement meeting. 10 . The Applicant did not respond to the

Summary Judgment Motion nor did he attend when it was argued. His counsel did attend but without instructions from him, she made no submissions. 11 . On the

Summary Judgment Motion, the Respondent was granted custody of the children and costs of the motion. The request for costs of the settlement meeting was adjourned to allow counsel to provide written submissions addressing the court’s ability or jurisdiction to award costs related to the settlement meeting. 12 . Written submissions were provided by counsel for the Respondent. No submissions were provided on behalf of the Applicant. 13 . The Respondent seeks costs of $2,455.04 for preparing for and attending at the LAO settlement meeting that did not proceed. Legal Considerations 14 .

Section 131(1) of the Courts of Justice Act provides that the “costs of and incidental to” a proceeding are in the discretion of the court and it may determine by whom and to what extent the costs should be paid. This discretion is circumscribed by the provisions of

an Act or rules of court, in this case, the Family Law Rules (FLR). 15 . Rule 24(1) of the FLR provides that a successful party is entitled to costs of a case. 16 . Case is defined at Rule 2(1) as: “…an application or any other method allowed in law for bringing a matter to the court for a final order or provisional order, and includes all motions, enforcements and appeals.” 17 . Rule 24(10) provides that a court is to address the issue of costs promptly after dealing with each step in a case. 18 .

When a court sets the amount of costs to be paid it must consider the time properly spent on the case, including attempts to settle: FLR rule 24(11)(d). 19 . Within the Family Law Rules , reference is made to attempts to settle as part of the court’s duty to manage a case and conduct conferences. Rule 2(5)(

c) requires the court to help parties settle. Rules 17(4)(h), 17(5) and 17(6)(

a) address organizing and holding a settlement conference. 20 . Conferences provided for in Rule 17 are steps within a case: Stevens v. Stevens , 2012 ONSC 6881 at 51 and 61 , aff’d 2013 ONCA 267 . 21 . Costs associated with a voluntary mediation are not within the jurisdiction of the court to order: Saltsov v. Rolnick [2010] O.J. No. 5606 (Ont. Div. Ct.) and Dostie v. Poapst [2015] ONSC 1532 at 30. 22 . In Saltsov , a case decided under the Rules of Civil Procedure , the Divisional Court did not award costs or disbursements incurred as a result of the parties’ participation in voluntary mediation. Writing for the Court, Justice Murray held that:

“[V]oluntary mediation is not a step authorized by the Rules of Civil Procedure and, not being authorized by the Rules, counsel fees and disbursements incurred at mediation are not properly the subject of a costs endorsement and should not be determined in accordance with s. 131 of the Courts of Justice Act , and the factors set out in sub-rule 57.01(1)”. 23 . In Dostie , a family law case, the court was asked to award costs associated with a mediation. The court would not grant that request because it was not a court-ordered mediation. The reasoning in Saltsov was adopted.

Position of Respondent and Analysis 24 . The Respondent argues that on the authority of Merrill Lynch Canada Inc. v. Vacation Properties Time Sharing Inc. (1999) 37 C.P.C. (4th) 317 ((Ont. Ct. Gen Div.) Case Mgt. Mr.) a court can order costs against a party who failed to attend a scheduled mediation. That case is distinguishable from the one that is now before the court. In Merrill Lynch , the court was dealing with a mandatory mediation. That is not the case here. In this case, the settlement meeting was a voluntary one agreed to and arranged by the parties. 25 .

Under the Family Law Rules , a court cannot require parties to participate in alternative dispute resolution. What the court can do at a conference held under Rule 17 is to require parties to attend an intake meeting with a court-affiliated mediation service (rule 17(8)(b) (iii)) or on consent, refer any issue for alternative dispute resolution (rule 17(8)(d)). 26 . This court had no authority to require the parties to attend the settlement meeting. 27 .

The Respondent next argues that by endorsing the record on September 30, 2016 to the effect that the parties’ next step was to attend the settlement meeting, it became a “step” in the court proceeding that “correlates” with Rule 24. With respect, I am unable to agree with this submission. The endorsement made and which refers to the intended settlement meeting was not for the purpose of ordering the parties to attend but rather to explain why the settlement conference was adjourned to a date subsequent to it. 28 .

The settlement meeting was not a mandatory step in a case authorized to take place under the authority of the Family Law Rules . 29 . The Respondent’s final argument was based upon policy considerations. 30 . In Saltsov , the court identified some policy reasons to explain why the costs of a voluntary mediation should not be the subject of court order. In

summary, the policy reasons were as follows:

a) To allow costs of a voluntary mediation to be the subject of court order would discourage parties from engaging in alternative dispute resolution processes for fear that if they did not lead to a settlement at the end of the day, mediation costs would only increase the costs of the case;

b) Any inquiry in costs would necessarily involve the court in an attempt to assess the parties’ conduct at mediation, the reasonableness of their positions and an assessment of whether the time spent in attempting to find a resolution was reasonable. A court should not probe into without prejudice discussions. The mediation process is neither subject or amenable to court supervision; and

c) The fees charged by mediators can vary greatly and the Court should not place its imprimatur on mediators’ fees by treating such fees as bona fide disbursements to be paid by an unsuccessful litigant. 31 . Counsel for the Respondent submits that these policy considerations do not apply to this case. In this case, the Applicant did not attend the voluntarily arranged settlement meeting. His behaviour was unreasonable. His actions caused unnecessary delay and expense. The policy that should be promoted in this situation is to sanction the Applicant for his failure to participate in the settlement meeting.

The policy considerations described in Saltsov are not engaged on the facts of this case.

32 . I agree that the Applicant’s failure to attend the settlement meeting should not be condoned. This cannot be accomplished by an order for costs based on policy considerations in the circumstance of this case. The costs the Respondent seeks are for time spent in connection with the settlement meeting, a voluntary process not subject to the FLR . Policy considerations alone cannot be the basis of a costs award for a process that was not a step in a case and therefore beyond the court’s authority to award. 33 . Accordingly, the Respondent’s request for costs in relation to the settlement meeting cannot be granted. Original signed and released Tobin J. Released: March 3, 2017