COURT FILE NO.: D24776/14 DATE: 2016/04/26
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Behnaz Mirzai-Asl, Applicant AND: Davood Borojerdi-Azar, Respondent
BEFORE: Mr. Justice P. R. Sweeny
COUNSEL: Maria G. Lucarelli, for the Applicant Alden L. Birman, for the Respondent
COSTS ENDORSEMENT
[1] The parties were unable to resolve the issue of costs. I received costs submissions from the respondent and the reply from the applicant.
[2] The respondent was successful on this motion. The respondent seeks costs in the amount of $35,323.24 on a substantial indemnity basis. The applicant says there should be no order as to costs or, in the alternative, costs should be between $3,000.00 and $4,000.00 plus HST, payable at the conclusion of the litigation.
[3] The issues on this interim motion were spousal support, payment of child support to the applicant for an adult child of the marriage, and the sale of the matrimonial home. The respondent was successful on all the issues. The respondent is entitled to his costs.
[4] The respondent points to an offer to settle which was served on February 10, 2016, two days prior to the motion. The decision is more favourable than the offer to settle. The respondent asserts he is entitled to full recovery costs after the offer to settle. In the circumstances, the respondent is entitled to full recovery costs after the offer to settle, subject to the reasonableness of the fees.
[5] The respondent claims total hours of 76 hours at $400.00 per hour. The bill of costs does not set out specific dates and times that these were incurred. This makes it difficult to calculate the full indemnity costs after the offer to settle.
[6] In my view, it is not appropriate to award costs for travel time. The respondent asserted it was 90 minutes each way for attendance in court. Therefore, the attendance for the motion would be six hours.
[7] In the circumstances, I find the hourly rate of $400.00 not reasonable in the circumstances of this case. With regard to the experience of counsel, I fix the hourly rate at $350.00. I fix the costs for the appearance on the motion, including preparation, at $3,000.00 on the basis of full recovery.
[8] Research conducted would be applicable to the issues that arise in the trial. Preparation of financials, meeting with client, and assembling documents as a result of undertakings as a result of questioning and fulfilling undertakings are all items which may be recoverable at the end of the trial.
[9] I do not allow any time for the attendance in court on May 20, 2015. This was a request for an adjournment and the matter was a long motion. I allow 20 hours at $210.00 (60% of $350.00) for a total of $4,200.00 for the costs of the motion up to the offer to settle.
[10] The disbursements are claimed at $859.50. No specific receipts were provided. These seem high. In the circumstances, I will allow the disbursements at $350.00 inclusive of HST.
[11] Therefore, the applicant shall pay to the respondent costs fixed in the amount of $8,486.00, inclusive of HST and disbursements, within 30 days.
Sweeny J.
DATE: April 26, 2016