COURT FILE NO.: FC-16-372-00 DATE: 20170421 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Joanne Romanelli, Applicant AND: Mario Romanelli, Respondent

BEFORE: McDermot J.

COUNSEL: Christopher C. Sorley, for the Applicant Kevin D. Zaldin, for the Respondent

HEARD: By written submissions

Endorsement

Introduction

[1] On February 24, 2017, I issued my endorsement on a motion brought by the Applicant for payment of interim fees and disbursements by the Respondent. The Applicant’s request was for $100,000 in interim fees and disbursements; I ordered payment of $60,000. I invited argument on costs and written submissions have been served and filed.

[2] There is no issue that the Applicant was successful on the motion. The Respondent also acknowledges that costs are payable by him on the motion. The real issue is the amount of costs payable by the Respondent, and not whether they are payable.

[3] To also put this into context, the Applicant had initially attempted to argue this motion using counsel’s own affidavit. The matter was adjourned to allow for proper responding materials, subject to an order for costs thrown away in the amount of $900. That amount has to be set off against any costs awarded on the motion.

[4] As well, this motion was part of a number of claims in the Applicant’s notice of motion and it was apparent that all of the claims could not be argued in the one hour allotted to a regular motions list, which was what this matter was scheduled for. Mr. Zaldin brought a 14B motion requesting that the matter be limited to one issue in the Applicant’s notice of motion and Quinlan J. adjourned that issue to the motions judge, myself. On consent only the interim disbursement issue was argued, with the remaining matters adjourned to a long motion date to be set through the trial coordinator’s office. Respondent’s solicitor says that he was effectively successful on the 14B motion, and seeks costs of that 14B motion, again to be set off against any costs on the motion.

[5] Finally, Mr. Zaldin suggests that the amount of costs claimed by the Applicant, $23,047.34 inclusive of HST and disbursements, is excessive.

[6] No offers to settle were served by either party on the interim disbursements issue.

[7] Taking all of this into account, counsel for the Respondent suggests that his client’s maximum liability for costs, including set off amounts noted above, should be no more than $6,600.

Discussion

[8] It is clear that $900 is to be set off against any costs award on the motion. In dealing with the remaining issue of costs, the next question is the effect of the 14B motion on the issue of costs.

[9] The 14B motion was brought as a result of the fact that the Applicant had made a large number of claims in her motion, all of which could not be dealt with within the hour allotted to the regular motions list under the Central East Practice Direction. The Applicant’s notice of motion was clearly in breach of that practice direction, and Mr. Zaldin was left with either responding to the whole notice of motion, most of which could not have been argued on the return of the matter, or bringing his 14B motion which was eventually adjourned to the motion itself.

[10] To me the issue is not whether the Respondent was successful in that motion, but whether the bringing of a motion that was too lengthy to be argued on a regular motions list was unreasonable litigation behaviour within the meaning of Rule 24(11) of the Family Law Rules [1]. Certainly, it resulted in the Respondent bringing the 14B motion in question as counsel was unclear as to what would actually be argued on return of the matter. It eventually resulted in the late filing of an affidavit which had to address everything in the Applicant’s motion, rather than the interim disbursement issue. This increased the Respondent’s costs, perhaps to no end if the other issues end up not being argued at a long motion. It is certainly unreasonable to serve a motion that cannot be argued within the time allotted, and then to only agree to limit the issues to be argued when counsel shows up in court, the situation which played itself out in chambers on January 19, 2017.

[11] In addition, counsel for the Applicant also acted unreasonably in attempting to argue the motion using counsel’s own affidavit, something clearly in breach of the Rules of Professional Conduct [2] and resulting in costs thrown away of $900.

[12] I also cannot assess the costs of the 14B motion without a bill of costs for that motion; although Mr. Zaldin suggested that costs of $1,600 would suffice for the 14B motion, he did not provide me with the basis for that figure in his costs submissions.

[13] I therefore find that the litigation conduct of the Applicant was unreasonable in serving and filing a motion which could not be argued in the time allotted for a regular motions list. I specifically take this into account in assessing costs of this motion.

[14] The Applicant also suggests that the Respondent indulged in unreasonable conduct and points to the clear inconsistencies in the Respondent’s evidence noted in my endorsement of February 24. The Respondent certainly took a unique position respecting the period of cohabitation which was belied by later statements made by him in other litigation. His pleadings were also inconsistent concerning his role and ownership of a construction company where he worked during cohabitation. Unreasonable or not, this behaviour affected the amount of time spent by the Applicant’s counsel in preparation of material. It also resulted in the focus of the motion and material being on the length of cohabitation, something that Mr. Zaldin then admitted during argument for the purposes of the interim disbursements motion. Those inconsistent assertions largely resulted in the Applicant’s success on the motion, as it made it apparent to me that this litigation would be difficult and expensive. The time taken by the Applicant’s counsel as a result of this behaviour is reflected in the the amount of time that was taken in the preparation of materials in this matter and therefore in the costs claimed by the Applicant.

[15] The Respondent has also suggested that certain time be excluded from the bill of costs as it was not related to the motion. I have reviewed the time entries in question and I disallow any of the entries related to disclosure; that was not argued and this ruling is without prejudice to the Applicant claiming those time entries in any claim for the costs of the motion respecting disclosure if and when it is argued [3].

[16] I also disallow Applicant’s counsel’s entries concerning the 14B motion that the Respondent was forced to bring [4] as well as the “waste of time” motion, for which costs have already been ordered [5]: I specifically disallow any costs for the preparation of counsel’s own affidavit for use in the motion. Finally, I agree that the time spent on January 26, 2017 appears to be excessive for a pure review of the motion record for the purposes of preparing a reply affidavit. I allow the time spent on December 2, 2016; although this material includes a non-severable offer to settle, that seems to be a small part of the material prepared that day.

[17] I disagree that junior counsel was unnecessary at the motion; it was apparent that Mr. Teskey had prepared the material being argued and he provided necessary assistance to Mr. Sorley. His lesser hourly rate in preparation of material would have produced a reasonable cost savings on the motion.

[18] Therefore, the time claimed on the bill of costs should be reduced by $6,000 plus HST for a total of $6,780. The $900 for costs thrown away should also be set off against the amount claimed. Full recovery costs would therefore be $15,367.84.

[19] There is no basis for full recovery costs. Any unreasonable conduct of the Respondent is made up in the time claimed on the file and there were no offers to settle submitted with either costs submission from the parties. Sixty per cent of the full recovery amount would be $9,220.70. Taking into account the unreasonable litigation conduct of the Applicant, those costs are reduced to $7,500 for the motion.

[20] The Applicant shall have her costs of the motion in the amount of $7,500, payable by the Respondent within 60 days.

McDERMOT J.

Date: April 21, 2017

[1] O. Reg. 114/99 [2] Law Society of Upper Canada, 2000 [3] These include the time entries for November 29, December 2, 4, 6 and 28, 2016, January 9, 10, 11 and 29, 2017. [4] The entries for December 12, 2016. [5] The entries for January 17, 18 and 19, 2017.