Court Information

Date: February 18, 2020

Court File Number: 525/19

Ontario Court of Justice 7755 Hurontario Street, Brampton

Applicant: Janet Jackson

Counsel: Fasiha Khan

Respondent: Nathaniel Dixon

Before: Justice L.S. Parent

Endorsement

The Issue

[1] On December 2, 2019, I released my decision following the hearing of a motion, on November 28, 2019, brought by Mr. Dixon, for the release of Ms. Jackson's medical records.

[2] At the court appearance on December 10, 2019, my endorsement provided, on consent of the parties, a timetable for the exchange of costs submissions should the parties be unable to resolve this issue.

[3] Costs submissions on behalf of Ms. Jackson were to be served on Mr. Dixon by e-mail by January 3rd, 2020. Mr. Dixon was to serve his response on counsel by email by January 31, 2020.

[4] A review of the file confirms that on January 3rd, 2020, costs submissions and a Bill of Costs on behalf of Ms. Jackson were received by my judicial assistant.

[5] The documents forwarded on behalf of Ms. Jackson also included an affidavit of service of the costs submissions and Bill of Costs on Mr. Dixon by e-mail in accordance with my endorsement dated December 10, 2019.

[6] Mr. Dixon did not file any submissions in response by January 31, 2020. Furthermore, he has not filed a 14B motion seeking a further extension of time to provide submissions.

[7] Counsel on behalf of Ms. Jackson seeks an order fixing costs for the motion, on a substantial recovery basis, in the amount of $9,253.27.

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

Authorities

[9] 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.

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

[10] 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.

[11] 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.

[12] 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.

[13] 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.

[14] 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.

[15] The FLR only expressly contemplates 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).

[16] 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

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

[18] Counsel on behalf of Ms. Jackson submits that her client was successful on the motion and that her client is entitled to rely on the presumption of Rule 24(1) FLR.

[19] Submissions made on behalf of Ms. Jackson indicates that this matter was not complex as the law on the issue of disclosure of medical records is clear.

[20] Counsel further submits that Mr. Dixon should have withdrawn his motion once he was provided with letters from Ms. Jackson's treating physician. Counsel submits, this letter was sufficient evidence regarding her client's health and accordingly, Ms. Jackson's medical records were not required.

[21] Counsel for Ms. Jackson submits that the motion was a further example of Mr. Dixon engaging in bad faith behaviour and improper actions towards her client. Accordingly, counsel submits that costs on a full recovery basis are warranted in this matter as the criteria of bad faith, as contained in Rule 24(8) FLR, has been met.

[22] I agree that the presumption in favour of costs to the successful party is relevant. Ms. Jackson was the successful party in this motion and therefore is entitled to rely on the presumption in Rule 24(1).

[23] As required by Rule 24(12)(a), I have reviewed the Bill of Costs submitted on behalf of Ms. Jackson.

[24] The Bill of Costs details the hours for legal fees incurred for services provided by Ms. Jackson's counsel on the motion. In reviewing these dockets, I find that counsel's hourly rate is reasonable given her years of experience.

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

[26] In my review of the Bill of Costs submitted on behalf of Ms. Jackson, I note that the total hours claimed is 29.40 hours. I find that the Bill of Costs does contain entries which, given the limited issue before the court for determination and counsel concedes was not complex, are excessive.

[27] Furthermore, the Bill of Costs does not provide detailed time entries for each step undertaken on behalf of Ms. Jackson but rather only a total number of hours expended. I find that the 23.60 hours spent by counsel, without further specific entries, is not proportional to the limited issue before the court.

[28] Counsel has also submitted 2.80 hours for administrative tasks, including the preparation of the Bill of Costs by two administrative employees and which is a two page document. Although costs incurred for the preparation of cost submissions can be requested, I find, in these circumstances, such costs not to be reasonably justified.

[29] Rule 24(b) FLR allows me to consider any other relevant factor.

[30] In this matter, although I did not grant the motion for the release of Ms. Jackson's medical records, I did require her to produce, within 45 days, a detailed letter from a specific physician involved in her care.

[31] Furthermore, my decision, in denying the motion for production, at paragraph 32 specifically references as an undisputed fact that Ms. Jackson only provided letters from her principal physician after the filing of the production motion by Mr. Dixon.

[32] Given these determinations, I find that the submissions made regarding Mr. Dixon's motives in seeking the production of records do not amount to bad faith or a misuse of proceedings as submitted in support of the costs requested.

[33] I find that Ms. Jackson, although successful on the motion, was required to engage, voluntarily and by court order, in disclosure obligations as a result of the motion for production having been brought by Mr. Dixon. Ms. Jackson's success, therefore, must be viewed within this context.

Result

[34] Given the above, I find that Ms. Jackson is entitled to costs, on a partial recovery basis inclusive of fees, disbursements and HST, in the amount of $2,500.00.

[35] Accordingly, I order Mr. Dixon to pay costs in the amount of $2,500.00 to Ms. Jackson payable to "Sterling Law Barristers & Solicitors in trust" by certified cheque, bank draft, money order or solicitor's trust cheque.

[36] Submissions on behalf of Ms. Jackson did not address payment terms outside of the context of the bad faith submission. The submissions made, however, did provide details regarding Ms. Jackson's present financial circumstances which support the conclusion that payment of any cost ordered be done forthwith.

[37] The costs, as ordered, are to be paid by Mr. Dixon as follows:

(a) by March 1, 2020 in the amount of $1,000.00; and

(b) by April 1, 2020 in the amount of $1,500.00.

[38] The costs are ordered to be satisfied in two instalments as I am not satisfied that Mr. Dixon acted unreasonably so as to order the payment of costs forthwith pursuant to Rule 24(8) FLR.

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

Justice L.S. Parent