ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-10-513-00
DATE: 2013-10-02

B E T W E E N:

CARL FRIDAY

Orlando S. Santos, for the Applicant

Applicant

-and-

JANICE FRIDAY

Wendela M. Napier, for the Respondent

Respondent

HEARD: July 24, 2012,
at Brampton, Ontario

Price J.

Reasons For Order

NATURE OF MOTION

[1] On April 2, 2013, I made an Order in Ms. Friday’s motion for temporary child support for the parties’ three children, for a contribution from Mr. Friday to their eldest daughter’s school expenses, and for security for child support. The order noted that if the parties were unable to agree on costs, they could submit written arguments and Costs Outlines. I have reviewed their submissions and will now address the costs issue.

PARTIES’ POSITIONS

[2] Ms. Friday seeks costs of $19,354.13 based on 41.4 hours of time spent by her lawyer at an hourly rate of $400.00, and $487.55 in disbursements, set out in her Costs Outline. The costs claimed include time spent in preparation for and attendance at a settlement conference, at which Baltman J. reserved the costs to the judge hearing the motion.

[3] Ms. Friday argues that she was wholly successful in the motion, based on the relief granted and the issues determined in her favour. Because the result was as favourable, or more favourable, than an Offer to Settle she made on June 13, 2012, which replaced an earlier Offer made in April, she submits that she should be awarded her costs on a full recovery basis, and that this should exceed the amount she was actually charged under her CAW Legal Services Plan Fee Agreement. Under that plan, she is charged at a rate of $110.00 per hour. She claims her costs of the motion at an hourly rate of $400.00, on the basis that this hourly rate is appropriate for her counsel, who has over 30 years of experience at the Bar.

[4] Mr. Friday argues that Ms. Friday should not be awarded her costs of the Settlement Conference, which he says should be determined instead by the trial judge. Additionally, he argues that the 25.4 hours that Ms. Friday’s counsel spent on the motion itself is disproportionate and unreasonable. Finally, he argues that, on the principle of indemnity, Ms. Friday should be limited to recovering the fees she actually was charged, based on the hourly rate of $110.00 provided for by the CAW Legal Services Plan Fee Agreement.

ISSUES

[5] The court must decide whether costs should be paid and, if so, by whom, and on what scale and amount. In this particular case, the parties have raised the additional and subsidiary issues of whether any costs ordered at this stage of the proceeding should include the costs of the Settlement Conference, and whether the hourly rate upon which the costs are based should be the one that Ms. Friday is charged under her CAW Retainer and Fee Agreement, or the higher rate of $400.00 per hour that her lawyer would otherwise be entitled to claim based on her experience at the Bar.

[6] In addressing these issues, the court must seek to balance the objectives of indemnifying the successful litigant, on one hand, and preserving the unsuccessful litigant’s access to justice on the other, by not imposing an overly onerous costs burden. In addition, it must fashion a costs order that discourages bad conduct in litigation and that encourages settlements in other cases, including those in which litigants are unevenly matched in their legal resources and the expenses they are able to incur.

ANALYSIS

Preliminary Issue of the CAW Retainer and Fee Agreement

[7] Mr. Friday seeks to limit his wife’s recovery of costs to the fees she actually paid to her lawyer. These fees are lower than what Ms. Friday’s lawyer would normally charge because Ms. Friday’s representation is subsidized by the CAW Legal Services Plan, a non-profit law firm that applies any excess recovery to its operating costs, in a manner similar to the Ontario Legal Aid. Ms. Friday relies on the decision of Henderson J. in Zeleny, (2004),[^1] in submitting that the CAW Retainer and Fee Agreement should not be construed as setting an upper limit on costs otherwise payable to a successful litigant.

[8] These arguments must be tested by reference to the well-established objectives of costs awards. As I noted in Cartwright, (2010),[^2] it is important that the court use an appropriate methodology to quantify costs, to ensure that it takes account of all the objectives that costs orders should serve and assesses all the factors to be considered in seeking to attain those objectives. Otherwise, the court may fail to balance the competing objectives. The resulting order may undermine access to justice, either by failing to indemnify a successful litigant who has acted reasonably in asserting his or her legitimate rights, or by over-burdening an unsuccessful litigant, who has also acted reasonably in submitting those rights to the appropriate tests.

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Price J.
Released: October 2, 2013