Dec 19, 2019

Nine-Day Trial a "Crushing Weight" with No Gain, Says Judge

Calver v. Calver, 2019 ONSC 7317 (CanLII)

In a recent costs decision from the Ontario Superior Court of Justice, Mr. Justice Pedlar decried the “crushing weight” of a 9-day trial accompanied by a huge risk of costs and the unfathomable stress on the parties. Calver v. Calver 2019 ONSC 7317.

The Calver’s were married for four years of a relationship lasting eight years. The judge noted that Ms. Calver chose the multiple remedies she sought, leading to a case that was “over-litigated”. Mr. Calver’s counsel remarked that the trial should have been completed within a day and a half and the judge agreed.

Her claims included unjust enrichment, constructive trust, proprietary estoppel, loss of future income, and compensation for emotional and physical damages related to her role in pursuing in vitro fertilization treatments over a period of seven years.

The facts relevant to the division of property were basically admitted. There was no dispute between them with regards to a joint venture or Ms. Calvert’s contributions to the joint venture. Ms. Calver sought a compensation payment of $450,000 and presented an offer to settle before the trial of $300,000. Her husband made a pre-trial offer of $9,000. The judge remarked that neither offer was reasonable given the outcome of the trial.

The majority of the relief claimed by Ms. Calver was dismissed and she was awarded the sum of $83,000, approximately 18% of her total claim.

In assessing an appropriate costs award, Judge Pedlar ordered Mr. Calver to pay his wife costs related to her success in being awarded 18% of her claim, amounting to costs of $13,560. He awarded Mr. Calver costs for his success in defending all other claims in the amount of $94,000 and set off what he was to pay his wife, leaving her to pay him $81,000 by forfeiting all of her judgment except the sum of $2,588.

In closing, the court commiserated that a 9-day trial cost the parties an enormous amount of money for virtually no gain.