ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-55682
DATE: 20140310

BETWEEN:

A.C. and I.C.
Plaintiffs

– and –

L.C.
Defendant

Charles M. Gibson and Ian B. Houle, for the Plaintiffs
Pierre J. Champagne and Julie Paquette, for the Defendant

**HEARD:**By written submissions

COSTS DECISION

R. Smith J.

Overview

[1] In this case, two twin daughters have sued their father for allegedly abusive conduct towards them while they were children. The plaintiffs brought a motion for an interlocutory Mareva injunction restraining their father from dissipating any of his assets pending trial particularly preventing him from selling his home in Kanata, Ontario.

Positions of Parties

[2] The defendant father seeks costs on a substantial indemnity basis in the amount of $24,192.08 as he was successful in setting aside the interim interim interlocutory Mareva injunction order which had been obtained on an ex-parte basis on November 7, 2013.

[3] The plaintiffs submit that the defendant’s costs should only be determined after trial or alternatively be awarded in the cause.

Factors

[4] The factors to be considered when fixing costs are set out in Rule 57 of the Rules of Civil Procedure and include in addition to success, the amount claimed and recovered, the complexity and importance of the matter, unreasonable conduct of any party which unduly lengthened the proceeding, scale of costs and any offer to settle, the principle of indemnity, hourly rate claimed the time spent and the principle of proportionality, and the amount that a losing party would reasonably expect to pay.

Success

[5] In this case, the defendant father was successful in having the ex-parte interim interim interlocutory Mareva injunction set aside.

Complexity and Importance

[6] An interlocutory Mareva injunction is a complicated proceeding giving rise to many issues of fact and law. Interlocutory Mareva injunctions are an extraordinary and infrequent remedy. The issues were important to both the parties.

Unreasonable Conduct of Any Party

[7] The defendant submits that the plaintiffs should have served him with a copy of their initial motion for an interlocutory Mareva injunction and should not have proceeded on an ex-parte basis. The judge who issued the interim interim interlocutory Mareva injunction on November 7, 2013 stated: “the defendant’s counsel ought to have been notified even if time for service was abridged.” The plaintiffs were aware that opposing counsel was on record and had filed material defending the claim. I agree that notice should have been given to the defendant’s counsel. In addition, the statement of claim had been issued and served several months before the motion for a interlocutory Mareva injunction was brought without notice, and there did not appear to be any urgency.

Scale of Costs and Offers to Settle

[8] The plaintiffs seek costs on a substantial indemnity basis on the ground that the application for the interlocutory Mareva injunction was a risky step and was groundless. While the interim interim interlocutory Mareva injunction was set aside, an interim interlocutory Mareva injunction had been issued by Roccamo J. and there was some evidence before the Court and as a result I cannot find that the plaintiffs’ position was completely groundless. Costs will be awarded on a partial indemnity basis.

Hourly Rates, Time Spent and Proportionality

[9] The plaintiffs do not object to the time spent or the hourly rates claimed by the counsel for the defendant nor do they argue that the amount claimed is disproportionate to the complexity of the issues involved. As a result, I find that the hourly rate claimed and the time spent was proportionate to the issues for a complex interlocutory Mareva injunction.

Amount the Unsuccessful Party Would Reasonably Expect to Pay

[10] In this case, the plaintiffs do not argue that the amounts claimed for costs are excessive other than they expected that costs would be fixed on a partial indemnity basis and not on a substantial indemnity basis. The plaintiffs submit that the costs on a partial indemnity basis should be reduced to $5,000 or, in the alternative, that the costs be payable by the plaintiffs on a partial indemnity scale at $16,451.35 which is 60 percent of the amount claimed on a full indemnity basis.

Disposition

[11] Having considered all of the above factors the plaintiffs are ordered to pay costs to the defendant fixed in the amount of $17,000 on a partial indemnity scale, inclusive of disbursements and HST in any event of the cause, as opposed to payable forthwith. I have awarded the costs in any event of the cause in order to allow the plaintiffs’ access to justice to be able to fully advance their claim due to their impecuniosity, and because of the serious allegations they have made.

The Honourable Mr. Robert J. Smith

Released: March 10, 2014