SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: 46697-12
Date: 2014-09-15

RE: Harinder Singh Sangha, Applicant

AND:

Barinder Kaur Sangha, Respondent

BEFORE: The Honourable Mr. Justice G. A Campbell

COUNSEL: Diane J. LaRocque, for the Applicant
David P. Olsen, for the Respondent

COSTS ENDORSEMENT

[1] There are four parts to this part of the litigation that need to be decided so all trial issues will finally have been completed.

[2] Firstly, the issue of success, entitlement and quantum of costs of the action needs consideration and a decision.

[3] Secondly, Mr. Olsen raises a challenge to the interpretation of the efficacy of Offers to Settle that are attached as Part 4 to Settlement Conference briefs as determined by Pazaratz J. in Entwistle v. MacArthur (2007), 2007 1892 (ON SC), O.J. No. 304.

[4] Thirdly, I must address the remaining issue of what part, if any, of the Applicant’s costs for the time period of June 14, 2012 to September 13, 2012, for which the Respondent might be responsible that remain outstanding after my July 11, 2014 endorsement.

[5] Lastly, I am to address the costs of $2,000 ordered “in the cause” on July 2, 2013. Now that the trial is complete and most of the issues decided, I must decide who pays those costs for the solicitor-client argument.

[6] To address the last issue first, it should have become clear to all from reading my reasons released July 11, 2014, that the Cook et al contingent were assessed partial responsibility for the Brampton phase of this litigation. Those parts of the motion brought by Mr. Bennett on their behalf (and argued on July 2, 2012) seeking to have Ms. LaRocque removed from the file and that the principle of solicitor-client privilege prevented Cook, et al (and Ms. Sangha) from adequately (or at all) responding to Mr. Sangha’s allegations failed entirely (or more accurately, were ruled “not relevant to the Rule 24 (9) claim and need not be decided by me at this time”).

[7] Now that all evidence relative to that time period has been submitted, considered and decided, it becomes even more clear that Mr. Sangha “won” all aspects of that motion and should be paid the costs that I set that day.

[8] Mr. Olsen “piggybacked” his support of Mr. Bennett’s motion by asserting his clients’ solicitor-client privilege, but since I found that her privilege need not be set aside (as “not relevant” to the issue), I do not order that she pay any of those costs to Mr. Sangha.

[9] Accordingly, per Rule 24(1), I order that Mr. Bennett’s clients (or their funding source) shall pay to the Applicant those costs of $2,000.00, forthwith.

[10] As I have already observed, this was a lengthy trial which neither party could afford but from which neither could extricate themselves because accusations begot defensive responses and new counter-accusations, which in turn engendered counter self-justifications and other new evidence raised to deflect the “evidence” supporting those assertions of blame. Human nature abhors “unfounded” allegations against one’s character and behaviour that are not refuted or at least responded to, often with accusations of “she started it” or if that is true then, “he was worse than I was” (supported by some hitherto unraised-offence of bad behaviour). Hence, as Ms. LaRocque submits, the five day trial estimate became three times as long as anticipated. Neither party is more blameworthy than the other in this respect. The adversarial trial process contributed greatly to the large increase in trial time.

[11] In their submissions, both counsel list an extensive menu of unreasonable behaviour and “bad faith” on the part of the other parent. I agree with the list of bad behaviour by both parties.

[12] Both parents reacted to each other with aggression (the Respondent albeit in a more passive manner), antagonism and poor judgment. Both raised irrelevant issues and called extensive and unnecessary evidence on peripheral issues such as the details relating to the Respondent’s home Village in India (which in turn caused unnecessary effort to obtain evidence to refute the erroneous assertions). There were various other areas that were also raised unnecessarily that exacerbated an already abundance of relevant evidence.

[13] Both parties generated enough reprehensible behaviour, as listed in the written submissions from both counsel and which I could enumerate with the inevitable result of only lengthening this endorsement. (I accept as accurate the examples argued by both counsel)

[14] Ultimately, I agree that neither party was entirely successful at trial and regarding the two most important and complex issues, (custody/parenting and equalization) the Respondent’s position regarding custody was closer to the trial result and the Applicant’s position regarding the property/equalization (mainly the Respondent’s claim for a sizable interest in the matrimonial home) was more successful than the position taken by Ms. Sangha.

[15] Pazaratz J. said it well in his last paragraph in his decision of Entwistle v. MacArthur (supra) when he wrote:

[83] In reviewing the factors listed in subrule 24(11), I note there are strengths and weaknesses to each party’s request for costs. The applicant and the respondent leave the court with many unanswered questions as to what they did and how they calculated their claims. Complex issues were raised in the application and answer and there was divided success. Each party made unreasonable choices that prolonged the litigation and generated additional legal fees. The applicant’s presumed entitlement to costs for the trial itself is largely negated by her presumed liability for costs in relation to the claims that she withdrew. I do not believe that either party has established a stronger claim for costs than the other. Accordingly, each party shall bear their own costs. (my emphasis)

[16] I rule that neither party is less blameworthy for the extent of the huge costs consumed by this contest (except for the Brampton phase – see infra) and neither is entitled to costs from the other for the trial.

[17] In passing, I would observe that both counsel have raised in their written costs submissions additional/post-trial facts, which they apparently would like me to accept as evidence; Ms. LaRocque (at para. 6 c) as more proof of Ms. Sangha’s fabrications, perjury and misdirection; Mr. Olsen (at para. 21/22) as proof of Mr. Sangha having refused to admit important or relevant financial evidence or facts.

[18] Unless counsel brought motions to re-open the trial/evidentiary portion of the proceeding (Ms. LaRocque tried to do so orally on the date set to deliver my trial ruling/decision on the trial), I decline to accept or consider these new assertions/facts as part of my costs decision.

[19] Thirdly, regarding the “outstanding balance” of costs created by the ‘Brampton phase’ of the litigation, Ms. LaRocque takes a straight-line approach to her submission; that is to say, that since the September 13, 2012 endorsement refers to $25,000 for costs “potentially payable by G.A. Cook et al … for all attendances … from the outset …” less the costs recently ordered payable by Cook et al by my July 11, 2014 endorsement of $13,000 total, leaves $12,000 for Ms. Sangha to pay. The exercise is not that simple and I attempted (apparently unsuccessfully) to clarify my September 13, 2012 endorsement in my July 11, 2014 endorsement.

[20] In any event, although I have held the various lawyers responsible for $13,000 of the potential $25,000 costs claimed and identified possibly owing to Mr. Sangha, Ms. Sangha cannot avoid responsibility for the financial impact on Mr. Sangha of the decisions she made, (with advice) that led to the Dunn, Prov. J. ex parte orders and for unsuccessful attempts to lure Mr. Sangha to Brampton to talk about Rajan (all the while knowing that she had surreptitiously obtained a restraining order against him that, had he fallen into that trap, would have found him in a very tenuous position and perhaps under arrest for breaching something he knew nothing about).

[21] I have already set the costs at $3,000 for the September 13, 2012 two-thirds of the day attendance payable by Ms. Sangha. I must now assess what additional costs are attributable to her poor decisions.

[22] In order to arrive at a reasonable decision, I am to view the issue of costs in a flexible and balanced way, recognizing the wide discretion afforded by R. 24 of the Family Law Rules, O. Reg. 114/99; Ostapchuk v. Ostapchuk, 2003 57399 (ON CA), 2003 CarswellOnt 1661, [2003] O.J. No. 1733 (C.A.). Ms. LaRocque’s client is entitled to his costs, but the quantum to be paid must reflect the factors in R. 24(11), viewed flexibly: C.A.M. v. D.M. (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (C.A.). The costs award, as well, must present a fair and reasonable amount that should be paid, rather than any exact measure of the actual costs. Zestra Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (C.A.).

[23] I am also required to make an assessment of a sensible and fair result consistent with what the unsuccessful party might reasonably have expected to have to pay: Moon v. Sher (2004), 2004 39005 (ON CA), 246 D.L.R. (4th) 440, [2004] O.J. No. 4651 (C.A.). This costs assessment, as well must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created: Pagnotta v. Brown, 2002 CarswellOnt 2666 (Sup. Ct.). See also Gale v. Gale (2006), CarswellOnt 6328.

[24] I also accept Ms. LaRocque’s submission that a litigant’s impecuniosity can be taken into account regarding the quantum of costs and the payment terms or method of payment of same: See Snih v. Snih (2007), 2007 20774 (ON SC), O.J. No. 2198.

[25] The evidence at trial establishes that Ms. Sangha was then employed part-time at minimum wage at Target. She could then obviously be considered as a member of the “working poor”.

[26] After trial, I attributed an income to her of $25,000 per year on the basis that come September 2014, Rajan would be in school and she could begin full-time work. Despite that assumption, I accept that even at that increased income, Ms. Sangha could still be considered as generally impecunious. The reality exists however that at separation and during the Brampton phase of the case, Ms. Sangha was poor.

[27] Accordingly after examining the factors set out in Rule 24(11) and applying them to the circumstances, positions, offers and tactics of this proceeding and using the “flexible v.s. rigid adherence to hours billed times the hourly rate charged” approach set out by the case of Hackett v. Leung 2005 42254 (ONSC) Blishen J. and the “fair and reasonable amount” approach encouraged by Boucher v. Public Accountants Council, 2004 14579 (ON CA), [2004] O.J. No. 2634, OCA, I find that a reasonable, balanced and fair costs order, (including the $3,000 plus $2,000 for research and preparation of a factum for the September 13, 2012 motion) for her share of that part of the litigation shall be $8,000, inclusive.

[28] These costs are payable by Ms. Sangha to Mr. Sangha by way of set-off against her spousal support of $400/month, which after trial I ordered payable by him to her from the first of this month until August 1, 2016. There shall be no interest attracted to these costs ordered payable by her to him.

[29] Lastly, (and strictly as obiter) regarding the issue of whether a trial judge should, after trial receive copies of the offers to settle (only) filed as Part 4 of the Settlement Conference briefs and consider the terms of same when (s)he decides the costs of the proceeding, I find that I need not address that issue in this case since, regardless of the offers made, neither party was successful and both acted at times unreasonably and in bad faith.

[30] However, I find Mr. Olsen’s argument quite persuasive and agree that (given the particular wording of Rule 18(16)) it would appear that the Rules Committee intended that after a particular step is concluded and costs for that step are being considered (in this case after all evidence is concluded and all allegations examined) the presiding Judge may (at his/her discretion) consider (“take into account”) any written offer, etc.

[31] If a presiding justice may consider “offers” made in With-Prejudice letters or e-mails (or texts?), I fail to understand the rationale that would prohibit him/her from looking at the offers in writing made at the time of the Settlement Conference despite the blanket prohibition regarding the particulars included in the main portion of Settlement Conference briefs.

[32] If the Committee intended that Rule 17 was to prevail over Rule 18, or if it intended that the broad and general permissiveness allowed by Rule 18(16) was mandated except for the offers attached to the Settlement Conference briefs (as a separate part thereto), it would have explicitly provided that direction.

[33] After all, my understanding of the rationale upon which the Rules are based (as provided in Rule 2) the parties and counsel (and the court) should make every effort to ensure early, full and complete disclosure and thereafter make early and regular offers to settle, based upon that continuing disclosure. By the time a Settlement Conference is held, informed and advised offers are mandated. If a party declines a reasonable offer at that step, my view is that, after trial, the decision-maker should be fully informed of all written offers to settle in order to intelligently understand what each offer contained and when it was made. To require counsel to prepare and serve two identical offers on the same date (one as Part 4 of the Settlement Conference brief and a separate stand-alone offer) is counter-intuitive and unnecessary, in light of the wording of Rule 17(23)(b) and Rule 18(16).

[34] Perhaps the Rules Committee will re-visit this anomaly or that the Court of Appeal will be given the opportunity to decide whether Entwistle, (although mentioned 12 or 13 times and followed once since 2007) should govern the ultimate decision on costs after the motion to change or trial is completed.

[35] I thank counsel again for their professionalism and extensive assistance during this very difficult and complex litigation.

G. A. Campbell J.

Date: September 15, 2014