COURT FILE AND PARTIES

COURT FILE NO.: 45710-11
DATE: 2012-01-05
SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Andre Czegledy-Nagy, Applicant

and

Julia Katherine Seirli, Respondent

BEFORE: The Honourable Mr. Justice G.A. Campbell

COUNSEL:
Rodica David Q.C., for the Applicant

J. Mark Coffey, for the Respondent

ENDORSEMENT ON COSTS

[ 1 ] I am to decide “in a summary manner” what award, if any, and the quantum of costs of the August 31, 2011 and October 26, 2011 attendances.

[ 2 ] Although I have examined both lawyers’ Costs Outlines with great interest, I do not intend to analyze each in detail other than to make the following general observations:

a) If a litigant commences an action in his/her own community, it ill behooves him/her to retain counsel in the largest metropolitan center in the Province (where fees are subsequently higher per hour), than where the litigation is situate, then to ask that the court impose those higher costs and travel expenses upon the opposite party should he/she lose the motion.

b) While I recognize that modern legal practice has available to a client a team of legal staff, each contributing something to a motion, senior counsel need not make her own arrangements to have documents served, attend from Toronto to Kitchener to file those documents with the Court, nor should she need to prepare charts or document briefs at her hourly rate of almost $600 per hour and expect a losing party to reimburse her client for those efforts.

A losing litigant should also not be expected to pay for that senior counsel supervising a junior counsel’s work or for the duplication of various lawyers “reviewing & revising” work already prepared (and billed to the client) by other lawyers or senior law clerks. For example, in this case three lawyers involved themselves in this rather simple motion (with many heads of relief, I grant) drafting, reviewing and revising each other’s work for a total of well over 40 hours plus over six hours for “research”. The cost of all that attention to Prof. Czegledy-Nagy is almost $15,000. On top of that counsel has charged Prof. Czegledy-Nagy over eight hours of preparation on the day before and day of the motion plus 10.3 hours, including travel, on the day of the motion. That effort alone cost the Applicant almost $11,000. Added to that cost is the cost of the law clerk that attended the motion (to drive and take notes at the motion I presume) at $175/hr for an additional expense of just over $1,800 for the day.

Professor Czegledy-Nagy may hire as many lawyers as he wishes to have on his team, from whichever city he wants them to come from. That is his prerogative. (See Grant v. Grant , 2006 CarswellOnt 17 (Ont. SCJ)

However, no litigant should expect to drive up the cost of litigation in that manner for his/her own satifaction or his/her need for attention and then to have the court saddle the other litigant with that bill.

There are many very competent local counsel (some are even LSUC family law “specialists”) in this Region. The need to import another from afar is unnecessarily and indulgent.

In any event, the Court need only consider as one factor the amount that a successful litigant has expended to achieve success. Some litigants need more “hand-holding” than others and some counsel bill heavily for the slightest effort where others do not.

Therefore, despite Prof. Czegledy-Nagy spending almost $65,500.00 to get to a temporary order (which required two attendances on motions), the principle of reasonableness that directs my determination is whether a reasonably party, opposing Prof. Czegledy-Nagy’s motions could possibly anticipate an order for costs against her even approaching such a breathtaking quantum were she to lose those motions.

Despite my colleague, Wood J.’s view, expressed in Grant (supra) that losing litigants in centres outside of Toronto should be ready to face “Toronto rates” if their opponent hired a Toronto Carriage Trade Counsel, my view is that Dr. Seirli could not possibly anticipate being held responsible for the gargantuan costs order as sought, (especially when her counsel charged her only $15,000 for those same services).

I find that the Applicant’s cost-request entirely overreaching (see Rule 24 (11) (d)).

c) Given my experience, I have found that the two motions were not particularly complex or difficult.

In seeking substantial recovery of Prof. Czegledy-Nagy’s legal costs, his counsel submits that the motions were of “utmost importance” to her client “and for the children”.

Of course, the issue of custody and contact of/with his children was of the “utmost importance”. In light of the strategic importance of establishing a custody status quo at the earliest stage of any family law litigation, every family law motion for custody is of the highest importance. There is no more important issue for a parent whose family has just disintegrated. (See Fappiano v. Campbell , 2002 46717 (ON SC) , [2002] O.J. No. 608)

The first emergency motion was certainly necessary and essential as a result of the Respondent Seirlis’ self-help tactic. The follow-up long-argued motion (on October 26) was also necessary to confirm the shared status quo agreed to at the first return of the first motion and to argue all of those other issues that were adjourned from August 31.

The Applicant’s counsel is correct when she argues that the entire process was precipitated by the Respondent’s unilateral, ill-advised and reprehensible tactic of sneaking the children away from their home and away from their father. Accordingly, the motions were certainly important to the children and the Applicant father. However, the motion(s) were not unusual or unique in any sense (unfortunately many litigants still resort to self-help) and did not contain any issue that was “important” in a public policy or legal precedent-setting sense.

d) Rule 24 (10) mandates setting costs for and “after each step in the case”.

I can readily assess the preparation, effort, presentation and success of counsel’s arguments at the October attendance. But, except for reading the Sloan J. Order (on consent) and the submission where Ms. David identifies for that day in her Costs Outline 9.9 hours for her and 9.4 hours for lawyer Virtue (less three hours travel for each) it would appear that that attendance consumed six hours of effort negotiating, followed by some “face-time” with presiding Justice Sloan for him to decide the use-of-the-van issue. Apparently, some compromise was achieved on August 31st, one issue was argued and the balance adjourned to be argued in October. Based upon the scant information available to me, that is the assumption upon which I will decide the costs for that attendance or “step”.

There is good reason that a presiding justice should decide entitlement and quantum of costs “at each step”. (S)he was present and can appropriately decide which party achieved more success and how much effort and time was expended on which issues. I cannot perform that task effectively with the information at hand.

Prior to August 31st, neither party served any Offer to Settle. Apparently, there was not time to do so. Given Dr. Seirli’s strategy, speed was paramount.

In a summary manner and given the apparent divided success of August 31, (Rule 24 (6)) and it appearing to me that Prof. Czegledy-Nagy was more successful than Dr. Seirli on a temporary basis, pending the full argument when all of the essential and important issues were more extensively canvassed, I allow the Applicant costs of that day set in the amount of $4,000.00, plus HST.

However, I oppose and object to the increasingly common practice of NOT addressing at least the quantum of costs at each step of a motion or an event in an action. The Rule was enacted for a very valid reason and unless counsel begin to follow its mandate, they risk a trial judge (or motions judge) later refusing to grant ANY costs for such a step in a proceeding. (see Moore v. Riley (2005), CarswellOnt 3074 (OSCJ) .

e) In my decision, I have made much of Dr. Seirli’s selfish action to remove the children from their home and their father.

In my decision I deprived her of two months spousal support as a modest consequence for that tactic. Dr. Seirli’s counsel suggests that that sanction should be the end of that matter. He argues that I should grant his client her costs for her obtaining spousal support. I disagree with both points.

Firstly, it should have been obvious to everyone involved in this matter, (despite the Applicant’s unsupportable argument to attribute an income to the Respondent equal to his income) that Dr. Seirli was entitled to some spousal support. The issue was the quantum of the attribution to her. Clearly Dr. Seirli “lost” her argument on that issue. She should not get costs for that issue.

Secondly, a token sanction of $600 (more or less) as a consequence for Dr. Seirli’s precipitous actions, in light of their combined incomes and assets (and the huge fees Prof. Czegledy-Nagy has paid at this early stage of the litigation) is effectively no sanction at all. An award of a significant costs order against her will, I am sure, register with Prof. Seirli (and any like-minded litigant) the court’s denunciation and censure of her self-help strategy.

[ 3 ] Therefore, in a summary manner; recognizing that Prof. Czegledy-Nagy “won” the more central issues that could be decided in October; taking into account the scandalous pleadings that Dr. Seirli persisted in presenting; and as a more significant sanction of her decision to precipitate, then exacerbate, an already traumatic separation in a most inappropriate manner, I order Dr. Seirli to pay $9,500, plus HST to the Applicant as additional costs for the preparation and attendance on October 26, 2011 (nothing is allowed for travel or for the second chairperson, Ms. Malizia).

[ 4 ] 40% of the costs may be attributed to support (both child and spousal) for taxation and enforcement purposes.

G.A. Campbell J.

Released: January 5, 2012