SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: FC-12-859
DATE: 20130110
RE: NAGIN RAZAVI, Applicant
AND
SAID HAMED GHIASIAN, Respondent
BEFORE: J. Mackinnon J
COUNSEL:
Tanya C. Davies, for the Applicant
Steven J. Greenberg, for the Respondent
HEARD: By Written Submissions
ENDORSEMENT regarding costs
[1] I heard a motion on November 15, 2012 brought by the respondent for an order that $172,286.00 be paid into court pending determination of his motion. I dismissed the motion with costs to the applicant in an amount to be determined. She is now seeking an award of some $17,000.00.
[2] The case has a somewhat complicated procedural history. A disclosure order was made in May 2012. The respondent brought a contempt motion returnable in July to enforce that order. That motion was adjourned to October and again adjourned. The respondent did not bring it back on for determination. I am not dealing with costs of the appearance in May. The respondent also submits that I should not address costs of the contempt motion. I agree. It is true that the applicant was required to respond to that motion and that the respondent has chosen not to bring it back on for determination. However, disclosure was at the heart of the motion that was argued. It is unlikely that the contempt motion would have been successful, but the fact is that the further disclosure order made in July was necessary so that the main motion could proceed.
[3] Given the factual context of the Respondent’s claim and of the motion heard on November 15, 2012, considerable disclosure was required to be made by the applicant and her mother. In my view, that disclosure was necessary to the conduct of the case and ought to have been made voluntarily and without the need for court orders or appearances.
[4] The applicant denied receipt of the respondent’s disclosure whereas it is now clear from the account of her lawyer at the time that it was received by him on October 2, 2012.
[5] The applicant incurred significant costs with her previous lawyer, most in relation to the application, disclosure, the contempt motion and a case conference.
[6] Her mother incurred some costs to another law firm but these do not appear to be related to the motion heard on November 15, 2012. Her participation in the motion, other than through providing some of the disclosure, was limited although she was present.
[7] An account was submitted by Ms. Davies which contained no indication of time spent or hourly charges. I do know that she was retained very shortly before the motion and relied extensively on the applicant for information throughout the hearing. She was present throughout the motion which, given the length of the court list, extended late into the day.
[8] I have also considered that had the applicant correctly identified herself as a spouse on the real estate transaction, it is unlikely that this matter would have proceeded in the costly way that it did. She explained that she had not believed the property to be a matrimonial home, but she did not explain how she came to declare that she was not a spouse when she clearly was.
[9] The applicant is not entitled to the full indemnity costs that she has claimed. She was successful on the motion but her success was not reasonably predictable until she provided the required disclosures. For these reasons and having reviewed the various accounts submitted by the applicant, I allow costs to her of $6,000.00 and to her mother of $500.00.
[10] I also wish to comment on the practice of both counsel who forwarded written submissions to me without also providing them to opposing counsel. This should never occur.
J. Mackinnon J
Date: January 10, 2013
COURT FILE NO.: FC-12-859
DATE: 20130110
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: NAGIN RAZAVI, Applicant
AND
SAID HAMED GHIASIAN, Respondent
BEFORE: J. Mackinnon J
COUNSEL: Tanya C. Davies, for the Applicant
Steven J. Greenberg, for the Respondent
ENDORSEMENT regarding costs
J. Mackinnon J
Released: January 10, 2013