Court File and Parties

Citation: Reiss v. Garten, 2016 ONSC 7026 Court File No.: FS-13-390699 Date: 2016-11-14 Superior Court of Justice - Ontario

Re: Vivian Reiss, Applicant And: Irving Garten, Respondent

Before: Kiteley J.

Counsel: Avra Rosen, for the Applicant David Milosevic, for the Respondent

Heard: in writing

ENDORSEMENT AS TO COSTS

[1] I released an endorsement [2016 ONSC 1508] on the issue of admissibility of evidence in an arbitration. As indicated at paragraphs 20 and 23, I reserved costs and invited counsel to agree on a timetable for written submissions after the conclusion of the arbitration. Ms. Rosen forwarded her costs submissions dated March 29, 2016. Counsel subsequently advised that they had agreed to await the conclusion of the arbitration before asking for a decision.

[2] In mid-August, I received written submissions from Mr. Milosevic which did not indicate that the arbitration had concluded. On November 9, 2016, I received a letter from Ms. Rosen in which she stated that she had written to me on August 8, 2016 confirming that the arbitration had been completed and she asked that I release the endorsement immediately. I did not receive that August 8 letter and accordingly my first knowledge that counsel were waiting for the costs endorsement was the November 9 letter.

[3] In her submissions, counsel for the Applicant asks for costs on a complete recovery basis in the amount of $23,644.69 (fees of $20,548.50 and HST of $2,671.31) plus disbursements of $424.88 including HST together with costs thrown away as a result of the adjournment of the arbitration in the amount of $8,000. Counsel for the Respondent takes the position that there should be no costs of the motion before me; alternatively an order for costs less than complete recovery. Counsel also asserts that there is no basis for costs thrown away.

Costs of the motion

[4] Ms. Reiss was the successful party and pursuant to rule 24(1), she is entitled to costs of the motion. Rule 24(11) identifies the factors relevant to the amount of costs. The issues were important and complex and not within the usual ambit of a family law motion. As a result, it was appropriate that senior counsel would be expected to undertake additional research and preparation. Ms. Rosen’s bill of costs reflects 23.50 hours as well as research by her associate for 11 hours. Mr. Milosevic has not provided any details as to the work he did in relation to this motion so I have no comparison. I am satisfied that those expenditures of time are not unreasonable given the importance and complexity.

[5] Neither party acted unreasonably. It is the case that the motion before me was precipitated by an attempt by the Respondent to rely on what I found to be inadmissible evidence. However, that is not conduct that I consider unreasonable. And, as the previous endorsement indicated, once the admissibility issue arose, both parties through their counsel acted reasonably in attempting to efficiently identify and explore the process for resolution.

[6] In the absence of unreasonable behaviour or bad faith I am not persuaded that the Applicant should recover full costs. However, given the importance and complexity, a significant award of costs is appropriate.

Costs thrown away

[7] As reflected in the Arbitral award quoted in the earlier endorsement, at the conclusion of the admissibility motion, either party could seek costs thrown away for the adjournment of the arbitration. Counsel for the Applicant takes the position that the adjournment of the arbitration to accommodate the motion before me increased her client’s costs. Ms. Rosen asserted that she and her expert would have to re-prepare at significant cost totaling over $10,000 and on that basis, she asked for approximately 80% or $8000. Mr. Milosevic takes the position that the arbitration was simply adjourned and the preparation time was not lost or “thrown away”. Furthermore, since both parties consented to the procedure before me, each should bear their own costs of re-preparing for it.

[8] As indicated at paragraph 15 of the earlier endorsement the parties had arrived at a clever and creative approach to resolution of one of the key outstanding issues. That was interrupted by the admissibility motion. The admissibility issue interrupted the good faith commitment to the arbitration process but I do not consider the interruption as the basis for an order for costs thrown away. Furthermore, Ms. Rosen’s written submissions were prepared shortly after the release of the award and before the completion of the arbitration and were estimates. I expect that more precise information could have been provided as to the actual costs thrown away, if any. If I had been prepared to order such costs, I would not have done so on the basis of estimates.

ORDER TO GO AS FOLLOWS:

[9] No later than the closing date for all outstanding financial transactions or November 30, 2016 whichever is earlier, the Respondent shall pay to the Applicant costs of the motion heard March 1, 2016 fixed in the amount of $17,000 plus HST and disbursements in the amount of $424.88 including HST.

[10] The Applicant shall not recover any amount as costs thrown away.

Kiteley J.

Date: November 14, 2016