CITATION: Price v. Price, 2016 ONSC 2196

OSHAWA COURT FILE NO.: FC-15-2079

DATE: 20160331

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN

Kim McLaughlin Price

Applicant

- and -

Richard Price

Respondent

COUNSEL:

C. Morrison for the applicant

M. G. Michaels for the respondent

J. Serdivan for S. Chinoy

HEARD: January 19, 2016

TIMMS J.

COSTS ENDORSEMENT

[1] Further to my endorsement herein released on January 28, 2016, I have now received complete costs submissions from the parties. Before I deal with costs, I wish to correct a “typo” found in paragraph [30] of that endorsement. The words “presumption or resulting trust” should have read “presumption of resulting trust”.

[2] The respondent seeks what apparently amounts to full indemnity costs in the amount of $17,208.00, plus another $2,421.02 for disbursements and HST. Included in the amount of $17,208.00 for fees is almost 4 hours for the preparation of costs submissions. The grand total comes to $19,629.02. The respondent asserts that he was successful and thus presumptively entitled to his costs of the motion as per subrule 24(1) of the Family Law Rules (FLR).[^1] Additionally, the respondent relies upon the factors enumerated in paragraphs 24(11)(a) to (f) of the FLR.

[3] The applicant admits that the respondent was in large measure successful. Beyond that, the applicant apparently disputes my conclusions (and presumably my analysis), because it was based on the untested affidavits of the parties. She also places emphasis on the fact that the “learned and experienced” Justice M. A. Scott found that an ex parte order was warranted in the first place.

[4] I confess that I am somewhat puzzled why the applicant argues that the conclusions in my endorsement of January 28, 2016 are suspect because they were based on untested affidavits. This was after all a motion, not a trial. It is extremely rare in this day and age for a motion to be argued other than on affidavits. I was required to decide the issues raised in the motion on the four corners of the affidavits and the law applicable to the issues. If the applicant truly thought that I had erred, she was free to appeal or seek leave to appeal, whichever she thought would have been the correct route.

[5] Justice Scott likewise could only decide whether to make the ex parte order in the first place based on the material then in front of her. In her endorsement of December 15, 2015, Justice Scott set out that she had explained to the parties that any order made after the court heard submissions and received information from both sides might differ from her order. Justice Scott reserved the costs in both of her endorsements; it is therefore open to me to consider costs from the whole motion.

[6] There is no doubt but that the respondent was almost entirely successful. The sole exception was the issue of the certificate of pending litigation, which occupied very little time during argument on the motion.

[7] I have reviewed the submissions for both parties regarding the applicability of the factors set out in subrule 24(11) of the FLR. Almost without exception I agree with the submissions of the respondent. Again, much of what the applicant submits seems to suggest that I erred and that when the truth comes out, the applicant’s actions will be proved to have been justified. Again, I fail to understand the relevance of such a submission on the costs of the motion heard by me.

[8] Counsel for the applicant argues that I stopped short of finding that the applicant not only acted unreasonably, but as well in bad faith, and as such the respondent is not entitled to full indemnity costs in accordance with paragraph 24(11)(8) of the FLR. This is correct, but I did find that she skated as close to the line as one can without actually going over it. I said the following among other things in paragraph [10] of my endorsement of January 28, 2016:

As was demonstrated during the arguments before me on January 19, 2016, the applicant’s affidavits filed on the motion are in the main composed of speculation and worse. By “worse”, I mean that they contain many outright misstatements of facts, some quite likely deliberate, as well as omissions of germane facts, and what can only be considered as attempts to shade things in her favour.

This must weigh in the balance.

[9] The applicant takes issue with the hourly rate charged by counsel for the respondent and with the amount of time spent on various things, including the preparation of the costs submissions. Those are both valid points.

[10] Counsel for the respondent apparently charges an hourly rate of $425.00. Based on the hourly rates that I see in the bills of costs submitted by Durham counsel, I agree that it is too high for someone of Ms. Michaels’ experience.

[11] I also agree that counsel for the respondent appears to have spent an inordinate amount of time preparing for the motion. Further, I agree that some items set out in the bill of costs appear to be for items that could have been easily done by a secretary or a clerk.

[12] That said, I do not allow charges for a clerk’s time included in a bill of costs. I consider that part of the lawyer’s overhead. In that regard I have frequently cited the case of Beerthuizen v. West Arthur Place, a 2008 decision of our colleague Justice H. Pierce.[^2]

[13] Justice Pierce wrote the following:

Except as authorized by the Rules of Civil Procedure or the jurisprudence, claims for a lawyer's staff fall under his hourly rate which contemplates overhead. Overhead includes staff. Counsel ought not to enhance his true hourly rate by hiving off overhead costs and charging staff time separately. This "pyramid technique" of claiming costs is not contemplated either by the rules or by the jurisprudence and can only serve to inflate a bill of costs beyond what is reasonable to recover from the opposing party.[^3]

[14] The bill of costs includes time relating to discussions with the lawyer acting on the sale of the matrimonial home, and other items relating to that sale. It also includes other small items not directly related to the motion. None of these should have been included.

[15] I have likewise excluded the time on January 12, 2016. In my view I covered that by awarding costs of $700.00 against the applicant on that day.

[16] After considering all of the above factors, including the over-riding factor of a fair and reasonable amount that the unsuccessful party could expect to pay for costs for this motion, I am awarding the respondent the sum of $9,000.00 plus disbursements of $99.25, and HST on both amounts.

[17] On page 2 of her submissions on costs, counsel for the respondent made several direct negative remarks about counsel for the applicant. Then on page 5, in the second paragraph under the heading Reasonableness and Unreasonableness of each Party's Behaviour in the Case, she wrote:

While it pains her to do so for the first time in her career, Ms. Michaels believes that the factors set out above, together with the judicial findings set out in the Endorsement of January 28, 2016, may well give rise to the exercise by this Court of its discretions (sic) under Rules 28(8) and (9),.

Counsel then went on to set out the two subrules in question.

[18] Any reasonable person would view that as an invitation to the court to make Ms. Chinoy personally responsible for any costs award. That is certainly how Ms. Chinoy saw it. She proceeded to contact LawPRO, which then assigned counsel, Jane Serdivan, to make submissions on her behalf. The court has now received those submissions and the reply submissions by counsel for the respondent.

[19] As subrule 28(9) sets out, costs can be awarded against counsel if that counsel has run up costs without reasonable cause or has wasted costs. Such an order can be made either after a motion, on notice to counsel, or as a result of the court exercising its own discretion.

[20] As counsel for Ms. Chinoy sets out, there was no motion brought in this case seeking relief against her under subrule 24(9). That only leaves the possibility that I would exercise my own discretion. Had I been inclined to consider doing so, in keeping with the wording of subrule 24(9), I would have given Ms. Chinoy the opportunity to be heard.

[21] However, there is no reason on the facts of this case that would incline me to make any costs order against Ms. Chinoy personally. Although I certainly agree with the analysis of the case law set out by Ms. Serdivan, and with the propositions that courts should exercise caution in making such awards and that such awards should only be made in the clearest of circumstances, I did not need her lengthy submissions to persuade me in that regard.[^4]

[22] In her reply to Ms. Serdivan's submissions, counsel for the respondent denied that she had asked the court to make a costs award against Ms. Chinoy personally. In my view, that amounted to a disingenuous splitting of hairs. As I said in paragraph [18] above, any reasonable person would think that Ms. Michaels was inviting the court to make such order. This view is supported by the length to which Ms. Michaels, in her reply submissions, criticised Ms. Chinoy for various alleged unprofessional actions which allegedly wasted everyone's time, and which allegedly unnecessarily ran up the costs.

[23] Ms. Michaels finished her reply submissions by asking for a further costs award for having to reply to Ms. Serdivan's submissions. I find that request rather bold in the circumstances. Perhaps Ms. Michaels should consider herself fortunate that Ms. Serdivan did not seek costs against Ms. Michaels for unnecessarily wasting the court's time.

The Honourable Mr. Justice Roger Timms

DATE RELEASED: March 31, 2016

[^1]: O. Reg. 114/99. [^2]: Beerthuizen v. West Arthur Place, 2008 CanLII 716 (ON SC), [2008] O. J. No. 110 (Ont. S.C.J.). [^3]: Supra, at paragraph [16]. [^4]: Husein v. Chatoor, 2005 ONCJ 487, 24 R.F.L. (6th) 274; Sangha v. Sangha, 2014 ONSC 4088, 47 R.F.L. (7th) 195; and Bailey v. Barbour, 2014 ONSC 3698, 2014 CarswellOnt 8412.