COURT FILE NO.: FS-14-394865

DATE: 20150707

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Janet Vanderweide, Applicant

AND:

George Ablitt, Respondent

BEFORE: Kiteley J.

COUNSEL: Renata Kirszbaum, for the Applicant

Timothy M. Kinnaird, for the Respondent

HEARD: in writing

ENDORSEMENT AS TO COSTS

[1] This is an endorsement as to costs following from the endorsement dated November 14, 2014.[^1] In paragraph 59, I indicated that the Respondent would pay substantial indemnity costs, I established a schedule for submissions, and I left open the possibility that I might make an order against Mr. Kinnaird personally. Written submissions were made as I directed but I just recently realized that the issue was outstanding. I regret the delay in the release of this endorsement.

[2] As indicated in paragraph 50, Mr. Kinnaird acknowledged that he had been put on notice in the letter dated September 17, 2014 that Ms. Kirszbaum intended to seek costs against him personally. During submissions on October 21, 2014, Mr. Kinnaird said that he had decided to “hedge his bets and not retain counsel”. He said that if there were submissions that he should be required to pay costs personally, he would need time to retain counsel.

[3] As contemplated by paragraph 59, Ms. Kirszbaum sent a letter to Mr. Kinnaird dated November 17, 2014 in which she confirmed that her client would be seeking costs against him personally.

[4] In her written submissions, Ms. Kirszbaum claimed costs against Mr. Kinnaird based on rule 24(9) of the Family Law Rules which provides that if a party’s lawyer has run up costs without reasonable cause or has wasted costs, the court may, on motion or on its own initiative, after giving the lawyer an opportunity to be heard, order the lawyer personally to pay the costs of any party.

[5] Ms. Kirszbaum sent the letters dated September 17, 2014 and November 17, 2014; she included the request in her client’s notice of motion; Mr. Kinnaird acknowledged the request and, at the hearing on October 21, 2014 chose to “hedge his bets and not retain counsel” for the hearing of the motion. Following release of my endorsement, he made written submissions as to costs on behalf of his client and on his own behalf and he did not retain counsel. I conclude that Mr. Kinnaird has been given the opportunity to be heard that is required by rule 24(9).

[6] In paragraphs 48 and 49 of the endorsement dated November 14, 2014, I listed the factors which caused me to conclude that the Respondent’s conduct had been unreasonable and that he should be required to pay substantial indemnity costs. Of all of those, Mr. Kinnaird bears some or all of the responsibility for the following: paragraph 48, paragraph 49(b), 49(e), 49(f), 49(g), and 49(h). In those instances, the legal position taken created unnecessary work and unnecessary legal services by the Applicant. I agree that Mr. Kinnaird has run up costs without reasonable cause or has wasted costs.

[7] As those reasons indicate, I also listed many ways in which the Respondent’s own conduct was unreasonable. In other words, Mr. Kinnaird and the Respondent share relatively equally the description of unreasonable conduct and therefore should be equally responsible for the costs.

[8] I turn now to the amount requested. Ms. Kirszbaum provided a bill of costs that totaled $4,662.49 and consisted of 13.2 hours at $300 per hour or $3,960 plus HST of $514.80 along with disbursements and HST in the amount of $187.69.

[9] Mr. Kinnaird challenged the total number of hours including the 2.8 hours allocated for legal research and he suggested that the amount on a substantial indemnity basis of $3000 plus HST would be appropriate.

[10] I do not agree with Mr. Kinnaird’s criticisms. I accept the bill of costs as presented.

ORDER TO GO AS FOLLOWS:

[11] By August 7, 2015, the Respondent shall pay 50% of the costs of the motion heard October 21, 2014 in the amount of $2331.25.

[12] By August 7, 2015, Timothy M. Kinnaird, Barrister and Solicitor, shall pay 50% of the costs of the motion heard October 21, 2014 in the amount of $2331.24.

Kiteley J.

Date: July 7, 2015

[^1]: 2014 ONSC 6574