NEWMARKET COURT FILE NO.: FC-09-31989

DATE: 2012-02-15

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ROBERTO MATTACCHIONE, Applicant

AND:
VINCENZINA MATTACCHIONE and EMILY MATTACCHIONE, Respondents

BEFORE: McDermot J.

COUNSEL:
J. Holzman, for the Applicant and the Respondent, Emily Mattacchione
G. S. Joseph, for the Respondent, Vincenzina Mattachione

HEARD: By written submissions

ENDORSEMENT

[ 1 ] On December 13, 2011, I issued my endorsement on the motion that I heard on December 6, 2011. The motion was brought by the Respondent, Vincenzina Mattacchione (“Vincenzina”) for a number of heads of relief, but much had been settled prior to argument, and only the issue of the terms of the disclosure of certain tax information as well as the preservation of an account in the joint names of the Applicant and the Respondent, Ms. Emily Mattacchione (“Emily”), were argued.

[ 2 ] On the motion, I essentially ruled in favour of Vincenzina, and I ordered the disclosure to be produced at the expense of the Applicant and that the account in question to be preserved according to the terms of earlier preservation orders issued in these proceedings. It is apparent from the materials filed by Ms. Holzman that the issue in this matter is not whether costs are payable by the Applicant and co-Respondent, Emily; it is how much is payable.

[ 3 ] Mr. Joseph says that his client is entitled to full indemnity costs based upon the offer to settle served by his client on November 11, 2011. He claims partial indemnity costs plus costs of $35,000 plus HST incurred after the offer to settle; his bill of costs indicates full indemnity costs would be $50,629.68. He states that full or substantial indemnity costs are also warranted due to conduct; Mr. Mattacchione’s and Emily’s counsel filed a reply to a reply affidavit. If partial indemnity costs only are ordered, Mr. Joseph says that his client is entitled to an award of $30,000.

[ 4 ] Ms. Holzman states that Mr. Joseph is overreaching through that claim for costs; she states that Vincenzina was less successful than her offer to settle and suggests that costs should be awarded in the amount of $12,000.

[ 5 ] I will consider each of those claims in turn.

(a) Offer to Settle

[ 6 ] Vincenzina filed an offer to settle on November 11, 2011, about a month prior to argument of this matter. That offer to settle provided that the Applicant would provide all of his CRA files; Vincenzina was more successful on that issue than her offer. However, the second issue argued was the issue of the preservation of the Oshawa funds in the joint names of Mr. Mattacchione and Emily; on that issue, success based upon the offers was divided as Vincenzina had demanded that those funds be paid into court, while Mr. Mattacchione and Emily only offered to provide an undertaking from Emily to preserve these funds. My order provided that the funds would continue to be preserved according to the terms of earlier preservation orders made in these proceedings, but that Emily would be subject to those orders.

[ 7 ] The question of the preservation of property was the major issue argued. The disclosure of the CRA documentation really resolved itself down to whether a direction from Mr. Mattacchione would do, or whether Vincenzina was entitled to actual disclosure of the documentation; I can fairly describe this supplementary to the preservation issue.

[ 8 ] It is also correct that of the 11 heads of relief that were in Vincenzina’s motion, all but 3 were settled prior to the matter being argued. No submissions were made that these were issues on which Vincenzina succeeded on; these matters were settled prior to offers to settle being exchanged.

[ 9 ] In the event that a party is more successful than his or her offer to settle, I am bound to order costs on a full indemnity basis: see Rule 18(14). Under Rule 18(16), when I am ordering costs, I may further take into account any offers to settle, even if they do not comply with Rule 18(1) as noted above.

[ 10 ] Regarding the offers to settle, I do not find that the result for Vincenzina exceeded her offer to settle. Although she was substantially successful on the first result, she was less successful than her offer on the major issue argued. Success on that issue was divided, although the offer by Mr. Mattacchione and Emily of an undertaking was soundly rejected. The offer does not, in my view, give Vincenzina the right to full indemnity costs in this matter.

(b) Unreasonable Conduct

[ 11 ] Ms. Mattacchione states that there are issues of conduct which affect my costs award. She notes that the Applicant and Emily attempted to file a reply affidavit contrary to Rule 14(2) of the Family Law Rules. [1] In his e-mail to Ms. Holzman, Mr. Joseph warned that he would be objecting to the affidavit being referred to, and advised that he would be seeking costs against Mr. Mattacchione’s counsel personally. I decided that the affidavit would be removed from the record.

[ 12 ] I can take into account the conduct of the parties to this proceeding: see Rule 24(8) of the Family Law Rules. Under Rule 24(11), I can take into account “the reasonableness or unreasonableness of a client’s behaviour” in assessing costs.

[ 13 ] I do agree that there is a conduct issue to be taken into account. The rule on filing reply evidence to a reply is clearly set out in the rules and there is a reason for that rule. I found that there was no reasonable excuse for this.

(c) Quantum of Costs

[ 14 ] The third issue is the quantum of costs awarded. The Respondent, Vincenzina claims costs in the amount of $30,000 on a partial indemnity basis and substantially more if costs are assessed on a substantial indemnity basis.

[ 15 ] Ms. Holzman states that the costs claimed are excessive. She notes that it took counsel 25 hours to prepare an affidavit and that there were items not relevant to the motion included in Vincenzina’s bill of costs. She states that the costs claimed are unreasonable, and should be reduced substantially.

[ 16 ] At times the costs claimed for preparation for and argument of a motion are similar to the costs of a trial. Such claims are to be discouraged as it puts the costs and risks involved in the argument of a motion well beyond the financial ability of most average persons, and as well they discourage necessary and meritorious claims for temporary relief in family law proceedings. It is to be noted that the intention of the Rules is to save “expense and time” (Rule 2(3)(b)); there is also the duty of proportionality as set out in Rule 2(3)(c) wherein the court is to deal “with the case in ways that appropriate to its importance and complexity.” Finally, I agree with Wildman J. when she applies these Rules in Sepiashvili v. Sepiashvili, 2001 25708 (ON SC), [2001] O.J. No. 3843 (S.C.J.) (at para. 20):

I am assuming that the decision to spend so much money preparing for this motion was Mr. Sapir's rather than his counsel's. Regardless of the outcome of the case, a client is not entitled to direct vast resources to litigation and expect full reimbursement. When the rules use the term "full recovery costs", there is an implied qualification that the costs incurred must be reasonable. There must be some assessment of the most effective use of resources to present the case, and some attempt to approach the matter in a cost-effective manner.

[ 17 ] In this case, the total of lawyer’s and law clerk’s time that was devoted to this motion was in excess of 120 hours. Disbursements totalled just over $1,400 plus HST. This was essentially a motion dealing with disclosure and preservation issues. Although the amounts involved were large, the issues were not overly complex by the time argument took place.

[ 18 ] Counsel can choose the amount to be charged to the client or the time that they feel is warranted for effective argument of the motion. This does not mean, however, that the unsuccessful party will be asked or forced to reimburse anything close to that amount. I do not find Vincenzina to have utilized a reasonable amount of legal resources in this matter. This court cannot sanction the amount of time spent on the motion considering the issues in play. I find that amount of time claimed by Vincenzina’s counsel to be excessive under the circumstances.

(d) Award

[ 19 ] Accordingly, in setting costs, I am willing to take into account the offer of Vincenzina pursuant to Rule 18(16); I am also willing to take into account the conduct of Mr. Mattacchione and Emily in filing the final affidavit which was removed from consideration. I am not willing, however, to grant full indemnity costs in respect of that issue; full indemnity costs are the exception and not the rule, especially where the result was not better than the offer to settle as filed: see Hunt v. TD Securities Inc. (2003), 2003 3649 (ON CA), 66 O.R. (3d) 481 (C.A.).

[ 20 ] I am also discounting substantially the amount of costs claimed by Mr. Joseph as I find the costs to be excessive considering the issues left to be argued as well as the complexity of the matters remaining before the court.

[ 21 ] I am accordingly awarding costs to the Respondent, Vincenzina Mattacchione, on a partial indemnity basis in the amount of $18,000 inclusive of HST and disbursements. This is greater than the amount suggested by Ms. Holzman based upon the respective offers to settle and the conduct issues noted above. Costs are payable by the responding parties to the motion, Mr. Mattacchione and Emily within 30 days.

McDERMOT J.

Date: February 15, 2012

[1] O. Reg. 114/99