J. Q.B. A.D.1996 No. 383 J.C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: VIOLA ROSE SIEMENS, PATRICIA JEAN NEUFELD, AND PHILIP CHARLES NEUFELD and KASPER GORDON BAWOLIN, S.V.R. HOLDINGS INC., LYNNE ETHEL BAWOLIN and F.A.M. AUTO INC. DEFENDANTS Brian J. Scherman and for the plaintiffs Karen M. Bolstad Bryan E. Salte for the defendants FIAT HALVORSON J. July 2, 1996 Clearly, the defendant, Kasper Gordon Bawolin ("Bawolin"), has been in contempt of court orders requiring that he account to the plaintiff, Viola Rose Siemens ("Siemens"), for her trust funds. His contempt however, is not as blatant as appeared initially. For example, part at least, of his failure to produce documentation arises from the sorry state of his records. The contempt has been purged sufficiently to permit the Court to withdraw from further intervention. Proper identification of assets has resulted largely through production orders against third parties, but also, through belated efforts by Bawolin. Additional information demandedby Siemens can be obtained through the normal discoveryprocess. That is not to say Siemens cannot move for relief if Bawolin displays intransigence. All that remains at this juncture is the issue ofresponsibility for the legal costs incurred by Siemens tocompel production. This question would not be so vexing but for the fact her solicitor/client bill for this service exceeds $50,000.00, including very large disbursements. There is good reason. When the third party order was sought, there appeared to be an urgent need to preserve Siemens' property. trustee was appointed, and the files of Bawolin were seized. Then an accountant prepared what amounted to forensic audit. All of this was very expensive. Counsel for Siemens urges me to order Bawolin to payforthwith, the solicitor/client costs to be taxed. There ismerit to this submission. Even if Siemens was substantiallyunsuccessful at trial in her allegations of wrongdoing byBawolin, still, he ought to pay these costs because he causedthe expense of the pre-trial production by his stallingtactics. Counsel for Bawolin argues that these costs should beleft to the discretion of the trial judge. As I see it, thisis the more appropriate route in the circumstances. When all the evidence is in, it may transpire that Siemens was in fact, indebted to Bawolin as he now says, at the time of the contempt. Such turn of events would not excuse his disobedience of the court orders, but it might influence the trial judge on the matter of costs. Moreover, the judge might conclude, once the whole story is revealed, that the legal costs incurred to enforce production are out of proportion to any gain which Siemens could reasonably have expected to achieve. Costs are left to the trial judge.
FIAT. The defendant had been held in contempt of court orders requiring that he account to the plaintiff for her trust funds. The issue here was responsibility for the legal costs incurred by the plaintiff to compel production. Her solicitor/client bill exceeded $50,000 including very large disbursements as a trustee was appointed to preserve the property and the defendant solicitor's files were seized. An accountant then prepared what amounted to a forensic audit.HELD: The court was able to withdraw from further intervention. Additional information could be obtained through the normal discovery process.  1)The contempt was not as blatant as first appeared. Part of his failure to produce documentation arose from the sorry state of his records and proper identification of assets was due in part to production orders against third parties. 2)The defendant solicitor ought to pay the solicitor/client costs because he caused the expense of pre-trial production by his stalling tactics. However the appropriate route in the circumstances was to leave costs to the trial judge. It may be that the plaintiff was indebted to the solicitor at the time of the contempt which would not excuse his failure to comply with the court order but may influence the matter of costs. It may also be that the legal costs incurred to enforce production were out of proportion to any gain the plaintiff could have expected.