SUPERIOR COURT OF JUSTICE - ONTARIO
Newmarket Court File No.: FC-08-29901-000
Date: 2012-02-29
RE: Zuree Tahir, Applicant
AND:
Mohammed Rawra, Respondent
AND:
Azzure Customs Homes Inc.
Before: McGee J.
Counsel:
Roy M. Respicio, for the Applicant
Aaron M. Franks/Anna Rolbin, for the Respondent
E. K. Rayson for the responding parties to the motion: Abdul Rawra and
Abida Rawra
Heard: Motion heard January 11, 2012
costs endorsement
1In reasons released January 17, the applicant wife’s motion for Certificates of Pending Litigation on 76 Cedar Ridge, Gormley and 137 Spring Blossom Crescent, Markham; and for an order adding her former spouse’s parents: Abdul Rawra and Abida Rawra, as parties to this proceeding was dismissed.
2The parents seek costs of $10,674.27. The respondent seeks costs of $15,000. The applicant is prepared to pay costs in the total amount of $5,000; $2,500 to each responding party on the motion. She asks that the costs be paid out of the equalization within 30 days if favourable to her, and if not, then 60 days after the date of judgment.
Costs claim of Abdul Rawra and Abida Rawra
3The parents were wholly successful in defending the claims made by the applicant. As set out in my reasons, each claim had been previously tried and lost. I agree with Ms. Rayson’s characterization within her costs submissions (p.3) that the relief as refashioned for the January 2012 motion was “recklessly sought 1.” It was unreasonable for the applicant to have sought temporary orders for relief previously determined, and on which there had been no material change or further evidence since the prior determination.
4The matters at issue were complex for both the litigants and for the court. Considered issues included: the potential application of a limitation period, interests in land, the form of pleadings and an earlier judicial indulgence predicated on an amendment of pleadings (which did not occur).
5This is one of those rare circumstances in which a substantial recovery of costs is appropriate, even though no Offer to Settle was served.
6In reviewing the Bill of Costs, I take no issue with the respective hourly rates of counsel or the law clerk. It appears that work was appropriately delegated. I do observe that 1.2 hours is assigned for law clerk time that appears to be more secretarial. I also see some duplication of time between the counsels (review of factum), that travel time has been billed at a full hourly rate and that there is research time in excess of what might be expected for this matter.
7I apply some discount to reflect these observations and find that a substantial recovery would be in the range of $8,500 inclusive of disbursements and HST. This amount shall be payable forthwith. I am not prepared to defer recovery of costs as suggested by applicant’s counsel. The parents are not parties to the action and their recovery of costs ought not be tied to a process in which they have no standing.
Costs claim of Mohammed Rawra
8The full recovery costs for the husband are shown within his Bill of Costs as $20,140.90.
9It is difficult to ascertain on what basis costs of $15,000 are sought. The amount is well in excess of the costs claim of the parents. As set out in my reasons, counsel for Mohammed Rawra took no position on the motions for certificates of pending litigation, or the adding of his parents as parties. He was not a “successful party” within the meaning of the Rule 24(1) presumption. Counsel for the husband made only brief submissions and primarily, monitored the proceedings.
10At the same time, some costs ought to be awarded to the respondent husband. His counsel prepared an affidavit deposed January 5, 2012 in response to the motion. He attended the hearing. He filed an updated Financial Statement. But those costs must be proportionate to the position of the husband within this particular motion, even if the motion was recklessly brought.
11As with the parents’ Bill of Costs, I observe some duplication between junior and senior counsels, and travel time was charged at a full hourly rate. Tasks are appropriately delegated, but it is not clear to me if the times noted are specifically in reference to this motion. I can only infer what periods of time were spent in response to the applicant’s motion, what time was spent on the respondent’s motion to sever the divorce and what time ought to be allocated to the cause. Much of the time within the Bill of Costs is allocated to client communications. Some of the time appears to be for comprehensive settlement discussions.
12The husband filed an Affidavit for Divorce within his cross motion for an order severing the divorce. The motion was not properly before the court on January 11, 2012. In the ordinary course, an order severing the divorce would not have been granted. However, to avoid having to return, or to file additional documents, the applicant wife consented to the order.
13Mr. Frank’s letters dated November 8 and December 8, 2011 (Tab A of the Costs submissions) are not formal offers, but do invite a resolution while giving notice of a claim for costs should a motion be brought. Counsel’s letter dated January 9, 2012 suggests that the wife’s consent to severing the divorce was conditional on receipt of the Talaq (Muslim Divorce) which was agreed, and on continuing child support, which was not agreed.
14Applicant’s counsel does not address the effect of these letters on costs. He states only that the applicant’s conduct was reasonable and should not attract costs consequences. I disagree. Given the invitation to proceed on consent, and the clear notice within correspondence that a severance of the divorce was sought some costs are appropriate. But balanced against this are two considerations: the motion was not properly before the court, and the applicant consented, saving the respondent further costs.
15I do not have as clear a basis to consider the husband’s claim for costs as I do within the parents’ claim. The oft stated purposes for a costs award within Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905 have been largely achieved by the award in favour of the parents of $8,500. The husband was not a successful party in that the relief sought was against his parents.
16I therefore look to the general principle within Boucher v. Public Accountants Council 2004 14579 (ON CA), [2004] Carswell Ont 2521, 48 C.P.C.(5th) 56, 188 O.A.C. 201, 71 O.R.(3rd) 291 that I am to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than the actual costs incurred. I find that amount to be $4,000. The applicant wife shall have 60 days to make payment.
17In summary, Order to go that;
(a) The applicant shall pay costs to both Abdul Rawra and Abida Rawra in the amount of $8,500 forthwith;
(b) The applicant shall pay costs to Mohammed Rawra in the amount of $4,000 within 60 days.
Justice H. McGee
Date Released: February 29, 2012