CITATION: McDougall v. McDougall, 2015 ONSC 1970
BELLEVILLE COURT FILE NO.: FS-13-0193-00
DATE: 2015/03/25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Marilyn McDougall
Applicant
– and –
Ross McDougall
Respondent
Heather Hanson and Shannon Beddoe, for the Applicant
Steven Baldwin, for the Defendant
HEARD AT BELLEVILLE: February 9, 2014
DECISION AS TO COSTS
KERSHMAN J.
[1] These costs related to the Wife’s motion for various relief and the Husband’s motion for exclusive possession of the cottage property.
[2] The original motion brought by the Wife with her former lawyer was a motion for financial disclosure, interim disbursements of $150,000, an interim advance on account of equalization of net family property in the amount of $300,000 and interim spousal support in the amount of $60,000 per month.
[3] The Husband vigorously opposed the quantum of the claim for spousal support.
[4] Prior to hearing the motion, the Wife withdrew her claim for the interim spousal support.
[5] The Wife’s Bill of Costs commences in November 2014 to the date of the motion. She is seeking full indemnity costs of $35,917.05 inclusive of HST.
[6] The Husband’s Bill of Costs commences on October 21, 2013 and claims costs as follows:
Partial Indemnity: $40,773.14; Substantial indemnity: $58,457.75; Full Indemnity: $67,300.06.
[7] Leaving aside the issue of interim spousal support, the Court finds that the Wife was successful in relation to the relief sought on her motion even though the amount of the advance net family property ordered was only $200,000 instead of $300,000. On that basis she is entitled to costs. The question to determine is on what indemnity basis and the quantum.
[8] The Court finds that the Husband was successful in relation to the motion for exclusive possession of the cottage property. The Court makes this finding notwithstanding the fact that the Wife was granted one weeks’ exclusive possession of the cottage property. On that basis, he is entitled to costs. The question to determine is on what indemnity basis and the quantum.
Offers to Settle:
[9] The Wife made two Offers to Settle and a Husband made one Offer to Settle. In the Court’s view, each Offer to Settle had some items that achieved greater success than the actual decision and some achieved lesser success than the actual decision.
[10] The Court uses its discretion and finds that the Offers to Settle will not be considered in relation to determining the scale of costs to be granted.
Cost Factors:
[11] The Court has reviewed the issue of costs, the parties’ positions in light of Rule 24, and in particular, subrules (1) and (4) through (11).
[12] In relation to subrule 24(1) and (4) the Wife was substantially successful in her motion. As such, she is presumed to be entitled to costs. The Husband was successful on his motion and as such he is entitled to costs. The Court notes that the Wife’s motion sought more relief than the Husband’s motion.
[13] In relation to subrules 24(4) to (8), in the Court’s view, the Father and Mother behaved reasonably on the motion. This Court finds that both parties acted in good faith in relation to the issues before the Court. As such, this factor will not lead the Court to grant costs on a full recovery basis. The Court finds that the costs should be granted on a partial indemnity basis in this matter.
[14] The motions were conducted efficiently by both counsel. Accordingly, none of subrules 24(4)-(8) have any impact on this decision.
[15] Subrule 24(10) requires that costs be decided at each step of the process. Based on a review of the endorsement book the Court finds that no costs were awarded prior to the motion. Based on Islam v. Rahman, 2007 ONCA 622, 41 R.F.L. (6th) 10 (C.A.), at para. 2, the Court will not go back and award costs for steps taken prior to the motion for which there was an endorsement and for which there was no order as to costs or for which the issue of costs was not addressed. The Court is prepared to award costs in relation to cross-examinations because they were integral to the motions.
[16] That leaves subrule 24(11) which deals with the various factors in setting costs.
[17] As to subrule 24(11)(a), the issues on the motion was not particularly complex. The issues were however very important to each of the parties.
[18] In subrule 24(11)(b), as to the issue of reasonableness of each party’s behaviour, the Court finds that each party acted reasonably.
[19] There is the issue of delay in the motions moving forward. The Court is satisfied that the delay is due to the Wife’s former counsel getting off of the record and the Wife’s challenge in finding new counsel.
[20] As to the question of the lawyers’ rates, with respect to subrule 24(11)(c), the Court notes that the Mother’s counsel has seven years’ experience at the bar and that she had several associates with lesser experience assisting her. The Father’s counsel has 22 years’ experience at the bar, a 1 year associate, paralegals and law clerks.
[21] Power J. in OGT Holdings Ltd. v. Startek Canada Services Ltd., 2010 ONSC 1090 (Sup. Ct.), said at para. 7:
In June of 2005 the Costs Subcommittee of the Civil Rules Committee issued the following INFORMATION FOR THE PROFESSION:
In preparing its report to the Rules Committee that led to the changes in fixing costs to be implemented on July 1, 2005, the Costs Subcommittee gathered substantial information and consulted widely. Based on this, the following may provide some guidance to the profession as these changes are implemented.
It is anticipated that in considering rates, as one of the various relevant factors, Courts will normally treat the rates set out below as maximum rates when fixing partial indemnity costs. These rates are the maximums that were available under the costs grid. It is further anticipated that the maximum rates would apply only to the more complicated matters and to the more experienced counsel within each category. The rates used in costs submissions will normally come within the range established by these maximums as appropriate to the particular matter after giving consideration to the factors set out in r. 57.01(1) which now include the amount an unsuccessful party could reasonably expect to pay and the principle of indemnity. Finally, it is the intention that these guidelines will be reviewed periodically so that their currency can be maintained, in light of accumulated experience.
In addition to the hearing itself, these guidelines encompass mediation under r. 24.1, discovery of documents, drawing and settling issues on a special case, setting down for trial, pre-motion conferences, examinations, pre-trial conferences, settlement conferences, notices or offers, preparation for hearing, attendance at assignment Court, orders issuing or renewing a writ of execution or notice of garnishment, seizure under writ of execution, seizure and sale under writ of execution, notices or garnishment or any other procedure authorized by the Rules of Civil Procedure.
Law Clerks
Maximum of $80.00 per hour
Student-at-law
Maximum of $60.00 per hour
Lawyer (less than 10 years)
Maximum of $225.00 per hour
Lawyer (10 or more but less than 20 years)
Maximum of $300.00 per hour
Lawyer (20 years and over)
Maximum of $350.00 per hour
[22] The Court is not aware that the Civil Rules Committee has issued any follow-up information.
[23] The billing rates charged by the Wife’s counsel are as follows:
Max Rate
Allowable
Under OGT
Counsel Name Year of Call Rate Per Hour Claimed Holdings
Heather Hansen 2007 $400.00 from Dec 31 2014 $225.00 $425.00 from Jun 1 2015 $225.00
Shannon Beddoe 2011 $250.00 $225.00
Max Rate
Allowable
Under OGT
Law Clerk Name Year of Call Rate Per Hour Claimed Holdings Sam McDonald N/A $200.00 $80.00 Courtney Sheppard N/A $200.00 $80.00
[24] The billing rates charged by the Husband’s counsel are as follows:
Max Rate
Allowable
Under OGT
Law Clerk Name Year of Call Rate Per Hour Claimed Holdings R. Steven Baldwin 1993 $375.00 $350.00 Daniel Baldwin 2014 $215.00 $225.00
Max Rate
Allowable
Under OGT
Law Clerk Name Year of Call Rate Per Hour Claimed Holdings Lorraine Thomson 30 years’ trial experience $235.00 $80.00
Max Rate
Allowable
Under OGT
Law Clerks Name Year of Call Rate Per Hour Claimed Holdings Kelly Joslin N/A $140.25 / $165.00 $80.00 Susan Neill N/A $140.25 / $165.00 $80.00 Kristy Bedford N/A $140.25 / $165.00 $80.00
[25] The Court finds that the maximum allowable rate is not the rate that the Court will allow.
[26] The Court relies on the case of Cawdrey v. Cawdrey, 2011 ONSC 416, 92 R.F.L. (6th) 99 (Sup. Ct.), Shaw J., at para. 7, which cited the Ontario Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para. 37, who said that, in assessing costs, the overriding principle is one of reasonableness and that the failure to follow that principle could lead to a result that is contrary to the fundamental objective of access to justice. The costs award should reflect more what the Court views as a fair and reasonable amount that should be paid by an unsuccessful party, rather than an exact measure of the actual costs of the successful litigant.
[27] Based on the OGT case the Court finds that the following partial indemnity rates shall apply:
Heather Hanson $200.00 S. Baldwin $300.00
Shannon Beddoe $125.00 Lorraine Thomson $80.00
Meghan Lawson $130.00 Kelly Joslin $80.00
Sam McDonald $80.00
Courtney Sheppard $80.00
[28] Based on the findings about the rates, the hours assessed by the Wife’s counsel are:
NAME
RATE
HOURS
TOTAL
Heather Hansen
$200.00
13.8
$2,760.00
Shannon Beddoe
$125.00
69.3
$8,662.00
Meghan Lawson
$130.00
2.3
$299.00
Sam McDonald
$80.00
7.5
$600.00
Courtney Sheppard
$80.00
2.7
$216.00
Sub Total
HST
TOTAL
$12,537.00
1,629.00
$14,166.00
[29] Based on the findings about the rates, the hours assessed by the Husband’s counsel for the cross-examinations and the motion are:
NAME
RATE
HOURS
TOTAL
Stephen Baldwin
$300.00
46
$13,800.00
Lorraine Thomson
$80.00
0.8
$64.00
Kelly Joslin
$80.00
2.3
$184.00
Sub Total
HST
Allowable Disbursements
HST
TOTAL
$14,048.00
$1,826.24
$15,874.24
$4,060.34
$984.89
$20,919.47
[30] The Court notes that the number of hours for Mr. Baldwin is higher because he has sought costs in relation to the cross-examinations. The Court finds that these amounts can be charged in relation to the issues involved in this matter.
Disbursements:
[31] The Wife did not claim any amount for disbursements. Therefore no disbursements will be allowed.
[32] The amount claimed for disbursements by the Husband is accepted for photocopying, courier, and transcripts, subject to viewing the invoice for the transcripts, as it appears high. The invoice shall be provided within 10 days to confirm the amount. The amount claimed for Welch LLP will not be included in this assessment. It can be dealt with later on in this file. Therefore, subject to confirmation of the invoice for the transcripts, disbursements are assessed at $5,045.23, inclusive of HST.
Conclusion:
[33] Therefore based on the calculations set out above and the Court awards the Wife, costs are fixed at $14,166.00 inclusive of HST.
[34] Based on the calculations set out above the Court awards the Husband costs are fixed at $20,919.47, inclusive of HST.
[35] The set off amount of $6,753.47 inclusive of HST is payable by the Wife to the Husband at the rate of $3,000.00 per month, commencing May 15, 2015, and monthly thereafter until such time as the amount has been paid in full. In the event that the invoice for the transcripts is different, the Court shall revise the amount for the transcript at a later date.
[36] Order accordingly.
Mr. Justice Stanley Kershman
Released: March 25, 2015
CITATION: McDougall v. McDougall, 2015 ONSC 1970
BELLEVILLE COURT FILE NO.: FS-13-0193-00
DATE: 2015/03/25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Marilyn McDougall
Applicant
– and –
Ross McDougall
Respondent
DECISION AS TO COSTS
Mr. Justice Stanley Kershman
Released: March 25, 2015