Ontario Court of Justice
Date: April 27, 2021 Court File No.: D31342/19
Parties
BETWEEN:
Cletus Oppong Wiafe Applicant
— AND —
Gifty Afoakwa-Yeboah Respondent
Before: Justice Roselyn Zisman
Heard: By written submissions
Reasons for Judgment released on April 27, 2021
Counsel: Glenda Perry, for the applicant Gabriella Deokaran, for the respondent
Decision on Costs
Zisman, J.:
Introduction
[1] This is a cost decision with respect to a recusal motion brought by the Respondent. For reasons released on December 15, 2020 the motion was dismissed.
[2] This cost decision is also with respect to a temporary motion by the Applicant and Cross-Motion by the Respondent with respect to parenting arrangements for their child.
[3] As the successful party, the Applicant’s counsel served and filed her costs submissions in accordance with the Order dated December 15, 2020 on January 14, 2021. Applicant‘s counsel sought costs of $6,471.51 on a full recovery basis against both the Respondent and her counsel. No response was received from the Respondent’s counsel.
[4] On February 2, 2021 the court released its decision on the applicant’s motion and the Respondent’s cross-motion with respect to temporary parenting issues. As the successful party the Applicant’s counsel served and filed her costs submissions on February 17, 2021. No response was received from the Respondent’s counsel.
[5] At a subsequent court attendance, Respondent’s counsel was advised by the court that her costs submissions had not been received. Respondent’s counsel advised the court that she believed that her response regarding costs of the recusal motion and the temporary motion were to be sent together and she therefore had until March 17th to serve and file her response.
[6] No responding cost submissions were received by March 17th.
[7] As the court was aware that counsel were involved in the trial of this matter that proceeded on March 17th to 26th, the court did not proceed to deal with the cost issues.
[8] On March 29th the court sent an endorsement to both counsel indicating that in view of the trial, the court, on its own motion, was extending the time for the Respondent to serve and file her cost submissions for both motions until April 12, 2021. The endorsement stated that if costs submission were not received by then the court intended to proceed only based on the Applicant’s submissions.
[9] On April 9th, the court received a 14B dated March 29th from the Respondent’s counsel. It does not appear that this 14B was served on opposing counsel. The 14B does not acknowledge receipt of the court’s endorsement of March 29th, though emailed to counsel, extending the time for the Respondent’s counsel to serve and file her responding costs submissions to April 12th.
[10] The Respondent counsel’s 14B requested an extension to file the responding costs submissions before myself and Justice Sager within 10 days of the order being made.
[11] With respect to the issue of costs before Justice Sager, it is submitted that Justice Sager cannot release any decision on this file until the motion that she recuse herself is heard. Justice Sager released her costs decision on April 7th. The costs decision is with respect to a production motion for third party records heard on January 29th. The Respondent also did not serve any responding costs submissions regarding that motion. The trial has now been completed and a decision rendered. In my view the issue of any motion for Justice Sager to recuse herself is now moot. I declined to hear any submissions with respect to Justice Sager’s costs order.
[12] I did grant the Respondent a further extension to serve and file her costs submissions until April 19th. Despite the numerous extensions being granted counsel for the Respondent has still not served and filed any costs submissions.
Applicable Legal Principles
[13] The Court of Appeal identified the four fundamental purposes that modern cost rules are designed to foster:
(i) to partially indemnify successful litigants;
(ii) to encourage settlement;
(iii) to discourage and sanction inappropriate behaviour by litigants; and
(iv) to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867 at para. 10.
[14] A successful party is presumed to be entitled to costs. Consideration of success is the starting point in determining costs: Sims-Howarth v. Bilcliffe, 2000 22584 (ON SC), [2000] 6 R.F.L. 430 (Ont. S.C.J.) at paras. 1 and 2.
[15] An award of costs is subject to the factors listed in FLR 24(12), the directions set out under FLR 24(4) pertaining to unreasonable conduct of a successful party, FLR 24(8) pertaining to bad faith, FLR 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party: Berta v. Berta, 2015 ONCA 918 at para. 94.
[16] The exercise of judicial discretion in awarding costs is guided by FLR 24(12) both in terms of the entitlement of a party to an award of costs as well as to the quantum of that award.
[17] The relevant factors considerations set out in FLR 24(12) are as follows:
24 (12) In setting the amount of costs, the court shall consider,
(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
(iv) and 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 expense properly paid or payable; and
(b) any other relevant matter.
[18] FLR 24(8) provides that the court “shall decide costs on a full recovery basis” if a party has acted in bad faith.
Discussion
[19] With respect to both motions the Applicant was the successful party and is therefore presumed to be entitled to costs.
Recusal Motion
[20] The most important factor with respect to this motion was the unreasonable conduct of the Applicant and her counsel. The motion was ill-advised and was simply a response to an earlier decision of October 12th that the Respondent did not agree with.
[21] The conduct of Ms Deokaran was extremely concerning and contrary to the Family Law Rules 2(2) to (4) that require parties and their counsel to help the court promote the primary objectives to deal with cases fairly, not waste time and deal with cases in ways that are appropriate to its importance and complexity.
[22] Ms Deokaran she did not comply with time lines, directions from the court or provide proof of service of documents on opposing counsel.
[23] Her allegations of “bias” against myself appears to be part of a pattern used against any judge who renders a decision that she does not agree with. In this court, she initially alleged that Justice Sager was biased and therefore the motion originally to be heard on September 29th was adjourned to myself to be heard on October 7th and then at the respondent’s request to November 12th. This important substantive motion was then delayed as Ms Deokaran brought a motion that I recuse myself. That motion was then argued by Ms Deokaran on November 12th and December 11. The substantive motion as a result was therefore unduly delayed due to Ms Deokaran proceeding with the recusal motion.
[24] Ms Deokaran on October 7th wrongly submitted that Justice Sager had agreed that the motion regarding parenting arrangements for the child needed to be heard by a different judge as Justice Sager had agreed that there was a reasonable apprehension of bias by her. It was clear from Justice Sager’s endorsement that she only transferred the motion to another judge to avoid delay.
[25] Further, at the commencement of the attendance on October 7th Ms Deokaran agreed that there was no apprehension of bias against me.
[26] It was only after I rendered my decision to transfer the residence of the child to the Applicant as a term of an adjournment that Ms Deokaran then alleged an apprehension of bias and proceeded to seek to argue a recusal motion.
[27] Costs are an important tool to discourage and sanction unreasonable behaviour. In this case, costs could be ordered against counsel personally based on her conduct. However, she has not responded to the cost submissions and based on prior conduct it is my view that such an order will simply provide a further reason for Ms Deokaran to appeal this cost decision and continue this litigation to the detriment of her own client and the child in this case.
[28] Ms Deokaran’s conduct may have to be scrutinized by Legal Aid Ontario and her governing body the Law Society of Ontario.
[29] I find that the costs requested should be ordered for the following reasons:
a) The time taken by respondent’s counsel to argue this motion, namely 2 days, was excessive;
b) The materials filed were excessive and mostly dealt with irrelevant issues;
c) The content and tone of the allegations were disrespectful and unfounded; the allegation that the motion was “on consent” was simply not true;
d) The respondent’s counsel failed to provide proof that she had served the applicant’s counsel with her December 11th submissions;
e) The respondent’s counsel short served her amended Notice of Motion;
f) The respondent did not abide by the directions of the court with respect to timelines for filing;
g) Applicant’s counsel was called to the bar in 1992; her hourly rate of $450 and $3,500 for a full day and $2,500 for a half day court time are reasonable; and
h) The time spent of only 12.7 hours is reasonable. As submitted by counsel, she did not spend a great deal of time on research or reading the applicant counsel’s motion materials, which were duplicated in other affidavits, as the outcome was obvious as the motion was not grounded in the evidence.
[30] I have considered that the Respondent is of limited means. However, as has been expressed in many other cases, just because a client is of modest means does not override the other considerations in Rule 24(2).
[31] The reasonableness of the parties’ positions, arguments and conduct are relevant to the issue of costs. An important function of costs is to uphold the integrity of our justice system. Costs are one way of ensuring the resources of the justice system are not unduly drained by clearly unreasonable claims and ill-advised litigation strategy: Weber v. Weber 2020 ONSC 6855.
[32] Court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give a litigant the forum to conduct themselves with impunity and without regard to the impact on the other side: Huess v. Surkos, 2004 ONCJ 141.
[33] I find that an order that the respondent pay costs fixed at $6,471.51 is reasonable and proportionate to the issues and time spent on this motion.
Temporary Parenting Motion
[34] The Applicant, as the successful party, seeks costs of $24,500 for this motion which does not represent full recovery of costs that would be $32,035.50.
[35] The Applicant acted reasonably and did not delay or engage in obfuscation tactics. He served and filed his documents in accordance with the directions of the court.
[36] The Applicant only withdrew his original position of joint parenting, even after the respondent impeded the order of October 7th that the child be placed in his care, after October 31st when the Respondent attended at his home unannounced and caused conflict that required police intervention.
[37] I find that the Applicant is entitled to costs of $20,000 for the following reasons;
a) The applicant acted reasonably throughout, followed the directions of the court with respect to service and filing of documents;
b) The respondent caused this motion to be delayed and extended; the motion originally scheduled for 2 hours took 3 partial days to complete;
c) The respondent was not prepared; she did not serve and file her materials on time despite numerous extensions given to her; the materials filed on the day of the motion were incomplete and then counsel refiled different materials during the motion;
d) The respondent’s counsel had numerous technological issues which can of course occur during a zoom hearing but without any basis she blamed the court and court staff for her problems;
e) As previously indicated applicant’s counsel’s hourly and court attendance rates are reasonable;
f) This was an extremely important motion. It was a legally and factually complex motion. The time spent was required due to the length of the materials filed by both sides but also due to the different “versions” of the respondent’s affidavits that were filed by counsel for the Respondent;
g) There were numerous attendances as this motion was originally scheduled before Justice Sager and then before myself with further requests for adjournments before me. There were also numerous 14Bs and “submissions” filed by the Respondent’s counsel regarding the motion. The Applicant is entitled to claim the time spent for all these attendances and the various 14Bs;
h) The amount claimed for disbursements are reasonable; and
i) A total of 63 hours was spent dealing with various aspects of this motion. This may appear excessive but in view of the litigation strategy and the tactics employed by the respondent and her counsel, the details of which are outlined in my decision, I find that the time spent was reasonable and necessary.
[38] There will be an order as follows:
The Respondent shall pay costs to the Applicant of $6,471.51 inclusive of applicable taxes with respect to the recusal motion.
The Respondent shall pay costs to the Applicant of $20,000 inclusive of all applicable taxes with respect to the temporary parenting motion.
All costs are due and payable within 30 days unless the parties consent in writing to a repayment plan.
Released: April 27, 2021. Signed: Justice Roselyn Zisman