Superior Court of Justice - Ontario
COURT FILE NO.: FC-10-00000033-00
DATE: 2014-01-09
RE: CHRISTINA KALKANIS, Applicant
AND:
MICHAEL KALKANIS, Respondent
BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY
COUNSEL:
R. Zaldin, as agent for the Applicant
R. Gillissie, for the Respondent
HEARD: By written submissions
COSTS ENDORSEMENT
[1] This endorsement relates to trial costs thrown away that were caused by the respondent’s failure to provide necessary disclosure, contrary to orders of this court.
[2] The requirements for costs submissions were set out in my Endorsement released November 26, 2013. Neither counsel complied with the page limit; Mr. Zaldin did not comply with the filing deadlines. Much time was spent by each counsel in his written submissions referencing the parties’ non-compliance with court orders. If counsel are unable to comply with court orders, specifically drafted to be clear and unambiguous, what example does that set for litigants? This court does not grant leave to extend the filing deadlines or to accept to material of greater length than that ordered. Even in a matter with some history, counsel must be concise where required by the court, and not presume to impose on the court’s limited time. Regrettably, in the result I have limited myself to considering the first two pages of written submissions only, and have disregarded the reply submissions filed by Mr. Zaldin delivered after the deadline imposed. I have reviewed and taken into account the applicant’s Bill of Costs covering the dates November 18 to November 25, 2013.
[3] The purpose of this order is not to punish or vilify. The purpose is to recognize that there were costs thrown away on preparation that were wasted because it was time spent preparing with partial information only. It is to recognize costs thrown away because trial time had to be spent still unearthing critical disclosure, in the face of an order made for that very disclosure in 2010. The point was not to have counsel create a “tally” of which party has been the most derelict in complying with orders, or to prove which counsel has been least effective in advancing the merits of his or her client’s claims. To the extent that both counsel have chosen to spend time doing so in their costs submissions, without specifically commenting on the tone or content, I remind both counsel of their professional obligations to one another, the court, and members of the public set out in the Rules of Professional Conduct, and Principles of Civility/Principles of Professionalism, the latter published by the Advocates’ Society. These standards are expected in their communications with one another, the court, the public, and in their courtroom demeanor.
[4] The court also wishes to emphasize for the benefit of the respondent specifically that the purpose in requiring the financial disclosure is to give the court the information it needs to arrive at a fair and just result for both parties. As of the last date of trial, it was plainly obvious that any attempt to reach a decision on the evidence currently before the court would do a disservice to both Mr. and Mrs. Kalkanis. How this was permitted to occur is not a question before the court at this time, but it is also clear that the applicant should not have to pay for the preparation time of her counsel, which was based on the insufficient documents produced prior to the last trial date, nor should she pay for the time and effort required to bring this incomplete disclosure to light.
[5] It is frustrating that the respondent’s counsel has attempted to argue that disclosure has been complete or is no longer an obligation; the sheer volume of the material produced on the last trial date, with more still outstanding as set out in my Endorsement of November 26, 2013, shows that this is patently untrue.
[6] Costs of the appearance before Eberhard, J. on May 8, 2013 were not reserved and, as they were not fixed at that step, will not be dealt with at this time.
[7] Costs thrown away will be awarded for some of the preparation time prior to November 18 and some of the trial time. Not all time will have been wasted. On November 18 Mr. Zaldin re-examined the applicant, and also cross-examined a non-party witness. The trial was adjourned before his cross-examination of the respondent began. For the six days at issue, the applicant’s counsel seeks to recover costs based on 103.7 hours of time.
[8] Having reviewed the Bill of Costs, the following amounts are reasonably compensable as costs thrown away, recognizing that I am fixing and not assessing costs:
November 14 – 17 Preparation time 10 hours
November 18, 2013 Time spent arguing 1.0 hours
disclosure issues
November 19, 2013 Preparation time, reviewing 5.5 hours
disclosure and outstanding
requests for disclosure
Trial time spent on 1.0 hour
disclosure
November 20, 2013 Preparation time for 4.5 hours
cross-examination and
reviewing outstanding
disclosure
November 21, 2013 Ongoing preparation for 4.0 hours
cross-examination and
documentary review
Trial time spent on 1.0 hour
disclosure
November 22, 2013 Ongoing preparation of 3.5 hours
cross-examination and
documentary review
related to disclosure
Trial time spent on 1.0 hour
disclosure
November 25, 2013 Ongoing preparation and 2.5 hours
documentary review
related to disclosure
Trial time spent on 4.0 hours
disclosure
Total 43.0 hours
[9] No travelling time or parking costs are compensable; the applicant chose to have her counsel present for the examination in-chief of the respondent.
[10] There will be photocopy costs associated with the ongoing disclosure issues because of the volumes prepared by Mr. Zaldin for the court’s assistance. Also the disbursement paid to Donald Zaldin in the amount of $1,000 for review was reasonable given the short timeframe within which Mr. Zaldin had to prepare as trial counsel. Reasonable disbursements are fixed in the amount of $1,100 plus HST.
[11] The costs for counsel’s time will be compensated in the amount of $500 per hour as the applicant should not be out-of-pocket for paying her counsel for this work. The fees incurred total $21,500 plus HST.
[12] This court orders:
The respondent shall pay to the applicant the sum of $25,538 for costs thrown away, within 60 days;
The non-dissipation order shall be varied to permit the respondent to refinance the Industrial Road commercial property, limited to an increase of $25,538, for the sole purpose of payment of costs to the applicant;
Disclosure shall be made of all financing applications arising from this order; and
The trial shall continue on May 20, 2014 at 9:30 a.m.
HEALEY J.
Date: January 9, 2014