Ontario Court of Justice

Location: 7755 Hurontario Street, Brampton, Ontario

Endorsement by Justice L.S. Parent

Parties

Applicant: Rajveer Kaur Dhillon Counsel: Deepa Singh

Respondent: Sukhdeep Singh Gill Counsel: Supriya Joshi

The Issue

[1] On December 2nd, 2019, I released my decision granting the motion brought by Mr. Gill requesting an order dismissing Ms. Dhillon's Application on the basis of jurisdiction.

[2] My endorsement also provided for a timetable for the exchange of costs submissions should the parties be unable to resolve this issue.

[3] The submissions made on behalf of both parties were received in accordance with the timetable except no reply submissions were provided on behalf of Mr. Gill.

[4] Counsel on behalf of Mr. Gill seeks an order fixing costs for the motion, on a partial recovery basis, in the amount of $4,062.00 payable forthwith.

[5] Counsel on behalf of Ms. Dhillon submits that no costs should be ordered.

[6] There were no offers to settle exchanged between the parties.

Authorities

[7] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 set out that modern costs rules are designed to encourage three fundamental purposes, namely:

a) to partially indemnify successful litigants;

b) to encourage settlement; and

c) to discourage and sanction inappropriate behaviour by litigants.

[8] Rule 2(2) of the Family Law Rules (FLR) adds a fourth fundamental purpose, namely to ensure that cases are dealt with justly.

[9] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as am. provides that cost orders are in the discretion of the court. Rule 24 of the FLR provides a framework for awarding costs for family law cases.

[10] Rule 24(1) creates a presumption of costs in favour of the successful party of a motion. Although consideration of success is the starting point in determining costs, this presumption does not, however, require that the successful party always be entitled to costs, especially in circumstances where the successful party behaved unreasonably.

[11] An award of costs is subject to the factors listed in Rule 24(12), Rule 24(4) relating to unreasonable conduct of the successful party, Rule 24(8) relating to bad faith, Rule 18(14) relating to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, para. 94.

[12] Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs. These are:

a. the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

i. each party's behaviour,

ii. the time spent by each party,

iii. any written offers to settle, including offers that do not meet the requirements of Rule 18,

iv. any legal fees, including the number of lawyers and their rates,

v. any expert witness fees, including the number of experts and their rates,

vi. any other expenses properly paid or payable; and

b. any other relevant matter.

[13] The Ontario Court of Appeal has stated in its decision in Beaver v. Hill, 2018 ONCA 840 that the court should approach the exercise of its discretion in determining costs in family law matters on the basis of reasonableness and proportionality and that it is an error in law to apply full recovery of costs unless findings support such an award.

[14] The FLR only expressly contemplate full recovery costs in specific circumstances, such as where a party has behaved unreasonably, in bad faith or has exceeded an offer to settle under Rule 18(14).

[15] Rule 24(8) FLR discusses the cost consequences for a party who has acted in bad faith. Specifically the rule provides that "If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately."

Analysis

[16] In reviewing the submissions filed on behalf of the parties, I have applied the above-stated principles.

[17] Rule 24(1) of the FLR creates a presumption of costs in favour of the successful party.

[18] Submissions made on behalf of Ms. Dhillon raised that a determination by the court on the issue of jurisdiction was the only pathway available to these parties given the conflict between them. Counsel further submitted that the position advanced on behalf of her client was reasonable. However, counsel's submissions acknowledge that Mr. Gill was completely successful in his motion and therefore is entitled to rely on the presumption in Rule 24(1).

[19] I agree that the presumption in favour of costs to the successful party is relevant. It has not been submitted by counsel for Ms. Dhillon that Mr. Gill has behaved unreasonably within the context of this litigation so as to engage Rule 24(4), which allows the court not to rely on the presumption in Rule 24(1).

[20] Even in the absence of this submission, my review of the record and involvement as the case management judge in this matter does not lead me to conclude that Mr. Gill behaved unreasonably.

[21] I find therefore that Mr. Gill is entitled to rely on the presumption in Rule 24(1).

[22] As required by Rule 24(12)(a), I have reviewed the Bill of Costs submitted on behalf of Mr. Gill.

[23] The Bill of Costs details the hours for legal fees incurred for services provided by Mr. Gill's counsel on the motion. In reviewing these dockets, I find that counsel's hourly rate is reasonable given her years of experience. I note that counsel on behalf of Ms. Dhillon does not dispute the reasonableness of counsel's hourly rate in her submissions.

[24] Subrule 24(12)(a)(i) specifically requires the court to consider the time spent on the proceeding.

[25] In my review of the Bill of Costs submitted on behalf of Mr. Gill, I note that the "Total Hours (sic)" claimed is noted as "21.5", however the correct total is 18.5 hours. Even taking into consideration this mathematical error, I find that the Bill of Costs as presented does contain entries which, given the limited issue before the court for determination, is excessive.

[26] In my review, I note that seven (7) hours has been claimed to prepare a reply affidavit and Factum. Furthermore, three (3) hours for services relating to administrative tasks have been billed at counsel's rate.

[27] These entries as submitted, in my view, cannot be reasonably justified, even on a partial recovery basis, given the narrow nature of the motion before the court, the limited historical context between the parties and the established caselaw on the issue of jurisdiction.

[28] I further note that submissions also include the amount for costs previously ordered on September 9, 2019, which is not required.

[29] Counsel has also submitted one (1) hour for the preparation of costs submissions. Although such submissions can be made, I find, in these circumstances, such an entry not to be reasonably justified.

[30] Ms. Dhillon did not submit a Bill of Costs which details services provided to her regarding the motion. Accordingly, I have no objective measure to assess the proportionality of Ms. Dhillon's costs against what Mr. Gill might reasonably pay had he been the unsuccessful party.

[31] Submissions made on behalf of Ms. Dhillon focus on her ability to pay any costs award. Submissions indicate that Ms. Dhillon is of limited means and that her counsel is retained through Legal Aid Ontario.

[32] It is clear that pursuant to subsection 46(1) of the Legal Aid Services Act, 1998, "the costs awarded in any order made in favour of an individual who has received legal aid services are recoverable in the same manner and to the same extent as though awarded to an individual who has not received legal aid services."

[33] The caselaw supports the position that a legally aided client "stands before the court in exactly the same position as any other litigant". See: Baksh v. Baksh, 2017 ONSC 3997.

[34] The caselaw further supports the proposition that a party's limited financial circumstances will not be used as a shield against any liability for costs but will be taken into consideration as a factor in the determination of any costs to be ordered. See: Snih v. Snih pars. 7-13.

[35] Counsel on behalf of Ms. Dhillon has not provided evidence that a costs award would have a devastating effect on her and/or the child subject of the litigation. The submissions are limited to describing the public assistance being received by Ms. Dhillon. I am aware however that the evidence at the motion did indicate that Ms. Dhillon did receive financial support from her family following the parties' separation and on an ongoing basis.

Result

[36] Given the above, I find that Mr. Gill is entitled to costs, on a partial recovery basis inclusive of fees, disbursements and HST, in the amount of $2,800.00.

[37] Accordingly, I order Ms. Dhillon to pay costs in the amount of $2,800.00 to Mr. Gill payable to "Subhash Joshi Law P.C. in trust" by certified cheque, bank draft, money order or solicitor's trust cheque.

[38] Submissions on behalf of Ms. Dhillon did not address payment terms. Submissions on behalf of Mr. Gill sought payment of any costs ordered forthwith.

[39] The costs, as ordered, are to be paid by Ms. Dhillon by March 31, 2020 as I am not satisfied that she acted unreasonably so as to order the payment of costs forthwith pursuant to Rule 24(8) FLR.

[40] This costs order is, in my view, reasonable and proportionate to the sole issue before the court for determination, namely jurisdiction, which was important to the parties however not complex in nature and/or the evidence.

Justice L.S. Parent