SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-11-585
DATE: 2013/02/01
RE: Nadia Farhan - Applicant
AND
Faisal Farhan – Respondent
AND
Khazna Al-Shemmari – Moving Party
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Steven Fried, Counsel for the Moving Party
Virve Georgeson, Counsel, for the Applicant and Respondent
HEARD: By Written Submissions
ENDORSEMENT ON COSTS
[1] I delivered my decision on this motion on November 29, 2012, and regarding costs I indicated:
Costs shall be payable by Faisal Farhan and Nadia Farhan to Khazna Al-Shemmari. If the parties cannot agree on the amount they can make written submission within 30 days, five pages maximum.
[2] Ms. Al-Shemmari the moving party asks that the amount of costs be fixed on a full indemnity basis at $23,887.57 inclusive of HST and disbursements.
[3] Although my endorsement is clear that the only issue regarding costs is the amount payable by Faisal and Nadia Farhan, those parties have provided submissions seeking costs from Ms. Al-Shemmari on a full indemnity basis of $12,915.90 being fees and HST. Further, they purport to re-argue the case itself on the merits. As such, their costs submissions were largely irrelevant and not particularly helpful.
[4] I have assessed the costs in light of Rule 24, and in particular sub-rules (1), and (4) through (11).
[5] Regarding sub-rules 24(1) and (6), as noted I had already decided per the endorsement that Ms. Al-Shemmari was entirely successful at the hearing and entitled to costs.
[6] None of sub-rules 24(4), (7), and (9) impact on my decision. The successful party behaved reasonably throughout. Both sides were prepared for the hearing. While both counsel significantly underestimated the time they needed, neither ran up or wasted costs without reasonable cause.
[7] Sub-rule 24(8) says:
If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.
Per S.(C.) v. S.(M.), 2007 20279 (ON SC), [2007] O.J. No. 2164 (S.C.J.) affirmed 2010 ONCA 196, [2010] O.J. No. 1064 (C.A.), bad faith behavior includes concealing information relevant to the issues or deceiving the other party or the court. Per Awad v. Dover Investments Ltd., [2010] O.J. No. 1956 (S.C.J.), a case relied on by Faisal and Nadia Farhan, a party who abuses the court process or makes unsubstantiated allegations of fraud can be liable for costs on a substantial indemnity basis. I find bad faith here with respect to both Faisal and Nadia Farhan. There was a finding of fraud and of their making false statements to the court. The previous two court orders that had to be set aside were obtained by clear abuses of the court process. Their position on the motion was tantamount to alleging unsubstantiated fraud by Ms. Al-Shemmari. Further, I find that this bad faith was in relation to the whole of the case and the core issues to be decided, not just parts of it. As such I award costs on a full recovery basis throughout per sub-rule 24(8).
[8] This leaves me to consider the factors in sub-rule 24(11) in setting the actual amount of costs.
[9] In looking at sub-rule 24(11)(a), the issues in this hearing were out of the ordinary for a family law case and I find that they were complex. Also I find that they were important issues for the children and for the integrity of the court and its process.
[10] In looking at reasonableness generally in sub-rule 24(11)(b), in my view it relates to a party’s behavior in conducting the case. Here I find that Mr. Farhan was being unreasonable in refusing to consent to the production of the Canadian immigration records, as that information could have shortened the hearing and simplified much of the evidence.
[11] Still per sub-rule 24(11)(b) and specifically looking at the criteria in 24(5), in weighing reasonableness the court is required to examine any offers to settle made. Ms. Al-Shemmari submitted a formal offer between the first day of the hearing and the second day, but I find it has no bearing on my decision. It was delivered too late to trigger cost consequences per rule 18, and it required the agreement of a non-party. There was a further offer made by Ms. Al-Shemmari since my decision on the motion, namely to resolve the issue of costs at $10,000. Given that Faisal and Nadia Farhan were claiming costs for themselves a sum greater than that, I find that this was a very reasonable offer and should have been accepted. Lastly, Faisal and Nadia Farhan indicate in their costs submissions that they also made an offer to Ms. Al-Shemmari, namely that she withdraw her motion. That of course was not accepted and I find that this offer was unreasonable given the result.
[12] Regarding sub-rule 24(11)(c) I find that the hourly rate claimed by Mr. Fried on a full indemnity basis of $275 is reasonable for the Ottawa area given his almost 20 years of practice.
[13] Per sub-rule 24(11)(d), at first glance the hours claimed by Mr. Fried for this motion of 76.1 hours appeared to be on the high side given that it only required two part days in court. However, Ms. Georgeson in her costs submission indicated that the hours she spent on the case totaled 114.30. In reviewing the materials the most work appeared to have been expended on behalf of the moving party. I therefore find Mr. Fried’s time spent to be reasonable.
[14] Per sub-rule 24(11)(e), I find the disbursements as claimed by Ms. Al-Shemmari of $239.50 to be reasonable. Along with the usual costs of service and filing, she lived in Kuwait and evidence originated there.
[15] Regarding sub-rule 24(11)(f) (“any other relevant matter”) nothing was specifically argued. The Court is aware that in the usual family law litigation where spouses, children, and families are affected by cost orders, the court can take into account the financial situation of the parties. This case, however, was closer to a civil matter where the finances of the parties were not canvassed in any detail. The costs submissions do indicate that Mr. Farhan is on a government disability pension because of a chronic kidney disease. There is no information about Nadia Farhan. The Court is also aware that Ms. Al-Shemmari is responsible for the care of the children in Kuwait, and it stands to reason that any legal fees she pays to Mr. Fried affects the resources available to support them. While the overall means and needs of both parties have been considered to the limited extent that there is evidence available, I find that they have little impact as a factor in setting the costs award.
[16] The court weighs the factors above guided by the overriding principle that the goal is to fix costs in a way that is fair to the parties and reasonable in the circumstances (per Murray, supra, and Katz v. Nimelman (2008), 2008 14541 (ON SC), 54 R.F.L. (6th) 177 (Ont. S.C.J.). I have assessed the costs on a full indemnity basis, and have accepted Ms. Al-Shemmari’s numbers for the hours spent, hourly rate, and disbursements. I find nothing in the other factors in sub-rule 24(11) to convince me that the over-all amount claimed is unfair or unreasonable. I therefore make an award as requested by Ms. Al-Shemmari of $23,887.57 inclusive of disbursements and HST. As required by sub-rule 24(8), Faisal Farhan and Nadia Farhan are to pay this award immediately.
Mr. Justice Timothy Minnema
Date: February 1, 2013
COURT FILE NO.: FC-11-585
DATE: 2013/02/01
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Nadia Farhan, Applicant
AND
Faisal Farhan, Respondent
AND
Khazna Al-Shemmari, Moving Party
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Steven Fried, counsel for the Moving Party
Virve Georgeson, counsel for the Applicant and Respondent
ENDORSEMENT ON COSTS
Mr. Justice Timothy Minnema
Released: February 1, 2013