ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-11-3324-00
DATE: 2012-12-21
B E T W E E N:
KIRANPREET KAUR LALL
Karen Dosanjh, for the Applicant
Applicant
- and -
TAJINDER SINGH LALL
Glen A. Cook, for the Respondent
Respondent
HEARD: September 13, 2012 , 2010, at Brampton, Ontario
Price J.
Reasons For Order
NATURE OF PROCEEDING
[ 1 ] On October 11, 2011, I made an order dismissing Mr. Lall’s motion to have the matrimonial home sold pending a trial that was to proceed on December 10, 2012. I ordered that if the parties were unable to agree on the costs of the motion, they could make written submissions. I have now reviewed the submissions and outlines and make the following disposition of the costs of the motion.
POSITIONS OF THE PARTIES
[ 2 ] Ms. Lall requests full indemnity costs of $8,975.00. She includes the costs of an initial attendance on August 31, 2012, when the motion was adjourned with costs reserved to the judge presiding on the return date, and the final attendance on September 13, 2012, when the motion was argued.
[ 3 ] Ms. Lall relies principally on her success in opposing the motion. She also argues that the motion was vexatious, in that Mr. Lall had previously moved unsuccessfully for exclusive possession of the home, and continued to rely on the alleged invalidity of the parties’ marriage, which had also been litigated previously, and that Mr. Lall unreasonably refused her request to adjourn the motion from August 31, due to her lawyer’s illness.
[ 4 ] Mr. Lall asks the court to limit Ms. Lall’s costs recovery to $1,500.00. He argues that a motion for sale of the home had not been litigated previously, that the motion was justified by the trouble he was having paying the carrying costs of the home, and by the absence of evidence that Ms. Lall could ever buy his interest in the home. In addition, he says the time claimed by Ms. Lall’s lawyer is excessive.
[ 5 ] ANALYSIS AND LAW
a) Objectives to be served
[1] Indemnification of the successful party is the paramount objective, but not the only one, to be served by a costs order. Other objectives that the court has recognized include encouraging settlement, discouraging frivolous proceedings and unnecessary steps in litigation, [1] and preserving access to justice. [2]
[2] In the present case, Ms. Lall was successful in opposing the motion. She preserved her possession of the home until trial, when her claim to an equalization of net family property would be adjudicated and, with it, her ability to buy Mr. Lall’s interest in the home.
b) Factors to be considered
[3] Rule 24(11) lists the factors that the court should consider in quantifying costs:
- (11) A person setting the amount of costs shall consider,
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness of each party’s behaviour in the case;
(c) the lawyer’s rates;
(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter.
[4] I will consider each of these factors as they pertain to Mr. Lall’s motion.
Importance of the motion
[5] The outcome of the motion was important to the parties as Mr. Lall based his argument that the home should be sold in large part on his allegation that the parties’ marriage was invalid and that the property was not a matrimonial home. A favourable determination of these issues could have influenced the determinative of these issues at trial. In addition, a sale of the house would have given Mr. Lall a strategic advantage by undermining Mr. Lall’s ability to remain in Canada without the financial support which he was withholding from her.
Complexity
[ 6 ] The motion was one of moderate complexity, involving foreign evidence concerning the validity of the parties’ marriage, and conflicting evidence as to whether the parties had lived together in the home before Mr. Lall caused the police to remove Ms. Lall and escort her to a women’s shelter.
Hourly Rates
[ 7 ] Ms. Dosangh, who was called to the Ontario Bar in 2005, charges Ms. Lall at an hourly rate of $350.00. An appropriate partial indemnity rate would be $225.00 for Ms. Dosangh and $80.00 for her law clerk, having regard to the “Information for the Profession” bulletin from the Costs Sub-Committee of the Rules Committee (“the Costs Bulletin”). [3] The Costs Bulletin suggests maximum hourly rates of $80.00 for law clerks, $225.00 for lawyers of less than 10 years experience, $300.00 for lawyers between 10 and 20 years experience, and $350.00 for lawyers with 20 years experience or more.
Time Spent
[ 8 ] Ms. Dosangh says that she spent a total of 20.5 hours on the motion, including 6 ½ hours at the court attendance on September 13, 2012 (10 a.m. to 4:30 p.m.). Mr. Cook asserts that “the motion of September 13, 2012, was barely over 2 hours from the beginning of court opening, waiting for adjournments, to the ending of argument.” I have consulted the Court Reporter, whose notes indicate that counsel’s submissions on the motion began at 11:16 a.m. and continued until 11:30 a.m., resumed at 11:51 a.m., and ended at 12:53 p.m. Argument did not resume in the afternoon.
[ 9 ] I find that 12 hours, consisting of 4.0 hours for the morning’s attendance, an equal time for preparation, and 4.0 hours for preparation of documentation, is reasonable in the circumstances. At a partial indemnity rate of $225.00, this results in a fee of $2,700.00.
[ 10 ] Ms. Dosangh states that her law clerk spent 5 hours assisting her with the preparation of the motion, and that an agent charged for 5 hours of time attending on August 31, 2012, to adjourn the motion. Mr. Cook asserts that the agent is not a solicitor and spent only a short time in court on August 31.
[ 11 ] I find that 2.5 hours is a reasonable time for the attendance on August 31 and that a similar time is reasonable for the law clerk’s assistance on the motion. This would translate to $200.00 for each at a partial indemnity rate of $80.00. A $2,700.00 fee for Ms. Dosangh and a $400.00 fee for the law clerk and agent totals $3,100.00, which is close to the $3,000.00 Ms. Dosangh estimated as her client’s costs at the conclusion of argument.
Reasonable expectation of the unsuccessful party
[ 12 ] It is not the role of the Court, in fixing costs, to engage in a purely mathematical exercise, or to second guess counsel with respect to particular dockets and particular tasks. It should take a global view to determine whether the costs as claimed are within the reasonable range and fall within the reasonable expectation of the parties. [4]
[ 13 ] A costs award must be within the reasonable expectation of the unsuccessful parties in order to preserve access to justice. Armstrong J.A. explained the rationale for the principle in Boucher : [5]
[37] The failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice . The costs system is incorporated into the Rules of Civil Procedure , which exist to facilitate access to justice….
[38] In deciding what is fair and reasonable, as suggested above, the expectation of the parties concerning the quantum of a costs award is a relevant factor .
[ 14 ] Mr. Cook estimated his own client’s costs at $2,500.00 at the conclusion of argument. I find that $3,100.00 was not beyond Mr. Lall’s reasonable expectation of what costs of Ms. Lall he would be responsible for if unsuccessful in bringing the motion.
Proportionality
[15] I must have regard to the principle of proportionality, which has been incorporated into the Rules by the express provisions of Rule 1.04 (1.1):
General Principle
1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. R.R.O. 1990, Reg. 194, r. 1.04 (1) .
Proportionality
(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved , in the proceeding. O. Reg. 438/08, s. 2.
[16] In Gale v. Gale , [6] G.B. Smith J., in reducing the partial indemnity costs of a motion for leave to appeal in a family law action, stated:
[12] Proportionality must be kept in mind when considering the issue of costs. This principle was considered in the case of Buchanan v. Goetel Communications Corp. [7] where Ferguson J. had this to say at paragraphs 10 and 11 of that judgment:
…the bottom line is that the proposed costs are excessive. They are excessive from two perspectives: costs of this magnitude will make litigation inaccessible as a method of dispute resolution; costs of this magnitude are also disproportionate to the value of the legal work necessary to represent a client in this dispute. If counsel do not use more restraint in deciding how much to invest in litigation, they will put both the bar and the Courts out of business which will profoundly harm the public whom we both serve . [Emphasis added]
[17] I find that costs of $3,100.00 would be proportionate to the importance of the motion to the parties and the complexity of the issues it involved.
Improper or Unnecessary: The Scale of Costs
[18] I must consider whether there was fault on the part of Mr. Lall or some other factor that justifies imposing costs against him on a substantial indemnity scale . In the normal course, costs are awarded to a successful party on a partial indemnity scale; however, the court has the discretion to order costs to be paid on a substantial indemnity scale in exceptional cases. [8]
[19] As noted above, Rule 24(1) provides that a successful party is presumed to be entitled to the costs of the proceeding. In the normal course, such costs are awarded on a partial indemnity scale; however, the court has the discretion to order costs payable on a substantial indemnity scale in exceptional cases. [9]
[20] Rule 24(4) of the Family Law Rules gives explicit recognition of the principle that costs may be used to express the court’s disapproval of a litigant’s unreasonable conduct. It provides:
24.(4) Despite sub-rule (1) [which provides that a successful party is presumed to be entitled to the costs of a motion], “a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.
[6] Brought on the eve of trial, this motion was calculated to gain for Mr. Lall a strategic advantage over Ms. Lall, whose economic vulnerability he had caused by reneging on his obligation to support her, which he had undertaken in his immigration sponsorship agreement. Daley J. made an Order on August 26, 2011, refusing the parties’ motions for exclusive possession and directing that the parties could reside in different areas of the house pending trial. Mr. Lall’s motion amounted, in the circumstances, to an appeal from that Order.
[7] In support of his motion, Mr. Lall relied on the alleged invalidity of the parties’ marriage, based on his assertion that Ms. Lall had failed to disclose her previous marriage to him before their wedding. As I noted in my reasons, Mr. Lall had made the same complaint to the police in India in June 2011, when the Assistant Police Commissioner, after investigating the allegation, concluded that Ms. Lall and her parents had disclosed her first marriage and its annulment to Mr. Lall.
[21] The timing of the motion, the grounds that Mr. Lall relied on, and the unfair financial burden that it placed on Ms. Lall justify an award of costs on a substantial indemnity scale. I therefore add $1,500.00, being the difference between Ms. Dosangh’s actual hourly rate of $350.00 and her partial indemnity rate of $225.00, applied to the 12.0 hours that Ms. Dosangh reasonably spent in preparing and arguing the motion, and $600.00, being the difference between the actual hourly rate of $200.00 charged for the clerk and agent and their partial indemnity rate of $80.00, applied to the 5.0 hours reasonably spent by them. The total costs will therefore be $5,200.00, ($3,100.00 plus $1,500.00 plus $600.00).
CONCLUSION AND ORDER
[22] For the foregoing reasons, it is ordered that:
- Mr. Lall shall pay Ms. Lall her costs of the motion, fixed in the amount of $5,200.00, payable within 60 days.
Price J.
DATE: December 21, 2012
COURT FILE NO.: FS-11-3324-00
DATE: 2012-12-21
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
KIRANPREET KAUR LALL Applicant
- and -
TAJINDER SINGH LALL Respondent
REASONS FOR ORDER
Price J.
Released: December 21, 2012
[1] Fellowes, McNeil v. Kansa General International Insurance Co. 1997 , 37 O.R. (3d) 464 (ON S.C.), para. 10
[2] 1465778 Ontario Inc. v. 1122077 Ontario Ltd. 2006 (2006), 82 O.R. (3d) 757 (ON C.A.), per Feldman J.A., at para. 45
[3] “Information for the Profession” bulletin (“the Costs Bulletin”) from the Costs Sub-Committee of the Rules Committee (that the Costs Sub-Committee of the Rules Committee issued to replace the Costs Grid, which it repealed in 2005. The Costs Bulletin has advisory status only and not statutory authority, as it was not included in the Regulation that repealed the Costs Grid.
[4] Banihashem-Bakhtiari v. Axes Investments Inc. 2003 , [2003] O.J. No. 3071, at para. 40 .
[5] Boucher v. Public Accountants Council for the Province of Ontario , 2004 See also: Moon v. Sher 2004 , 246 D.L.R. (4 th ) 440 (ON C.A.) , per Borins J.A., at para. 28.
[6] Gale v. Gale , 2006 .
[7] Buchanan v. Goetel Communications Corp [2002] O.J. No. 3063 (ON S.C.) .
[8] 131843 Canada Inc. v. Double “R” Toronto Ltd. (1992), 7 C.P.C. (3d) 15 (Ont. Gen. Div., per Blair J., as he then was) at p. 17, approved in Murano v. Bank of Montreal 1998 , (1998) 41 O.R. (3d) 222 (C.A.) at p. 244.
[9] 131843 Canada Inc. v. Double “R” Toronto Ltd. (1992) 7 C.P.C. (3d) 15 (Ont. Gen. Div., per Blair J., as he then was) at p. 17, approved in Murano v. Bank of Montreal 1998 , (1998) 41 O.R. (3d) 222 (C.A.) at p. 244