Court File and Parties

COURT FILE NO.: FS-14-398922 DATE: 20170711 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Anita Bielak, Applicant – AND – Eli Dadouch, Respondent

BEFORE: Justice E.M. Morgan

COUNSEL: Bryan Smith and David Chernos, for the Applicant Jonathan Lisus, Shaun Laubman, Daryl Gelgoot, for the Respondent

HEARD: Costs submissions in writing

Costs Endorsement

[1] On June 22, 2017, I issued my ruling on this motion in which there was divided success.

[2] On the minor issues, the Applicant succeeded in dismissing the Respondent’s motion for a sealing order and confidentiality order that had been proposed to prevent the adult children of their marriage from learning more about the issues in the litigation. On the major issue, the Respondent succeeded in establishing that documents removed from his briefcase by the Applicant were subject to privilege, and he obtained an order that the Applicant deliver up to him and/or destroy all copies of those documents which remain in her possession.

[3] Counsel for the Respondent estimates that the major issue occupied something like 2/3 of the time researching, documenting, conducting examinations, preparing for and arguing the motion. Judging from the time spent before me at the hearing and the quantity of documentation relating to each set of issues, I would think that if anything this is an underestimate of the time spent on the major issue. The minor issues were almost afterthoughts that paled in significance to the major issue.

[4] Rule 24(6) of the Family Law Rules permits the court to apportion costs as appropriate where success on the motion is divided. In doing so, I will proceed in the way the court did in Firth v. Allerton, 2013 ONSC 5434, at para 22: “Since success on the…issues was…divided, in my view it is appropriate to award costs to the Respondent, given [his] greater success on the major issue, and to make an appropriate adjustment to account for the divided success on the less dominate issues.”

[5] Counsel for the Respondent have submitted a Costs Outline in which they seek costs in the amount of $70,000 (including HST) plus disbursements of $11,275.65, on a partial indemnity scale. In keeping with their estimation of the time spent on the two sets of issues, this represents just over 2/3 of their overall costs of roughly $114,000 when calculated with partial indemnity rates. This was a legally complicated motion that culminated in a full-day appearance by three lawyers on behalf of the Respondent (each addressing a specific portion of the argument). The oral submissions were scheduled for several hours, but ended up taking a full day in court – not due to tardiness on the part of either side, but rather due to the length and complexity of the matters at hand.

[6] Counsel for the Applicant has not produced a Costs Outline, so I do not know how much potentially recoverable time they put into the motion. They have, however, responded to the Respondent’s submission by observing that the Respondent utilized three lawyers in this motion when one or two would have sufficed.

[7] Counsel for the Respondent replies to this by noting that the Applicant also used three lawyers. There were two lawyers on behalf of the Applicant, each senior members of their respective law firms, who were gowned and made oral submissions at the hearing. It makes a certain amount of sense that they might have had another lawyer assisting them and tending to matters prior to the hearing. I will take Respondent’s counsel at their word on this point. Since Applicant’s counsel did not provide a Costs Outline of their own, the Court has no other way of knowing how many people worked on the file on the Applicant’s behalf.

[8] Counsel for the Applicant presumably has not submitted a Costs Outline because they do not seek costs on the basis of time spent. They propose a very modest $10,000 for each side. I assume that this amount is so far below what the respective sets of lawyers spent on the matter that substantiating it through a detailed Costs Outline would be superfluous.

[9] The Family Law Rules do not require a Costs Outline, and I have no objection to a party deciding to proceed in this way notwithstanding that this was a complex, full-day motion. Indeed, even under the Rules of Civil Procedure, where Rule 57.01(6) provides that “…every party who intends to seek costs for that step shall give to every other party involved in the same step…a costs outline not exceeding three pages in length”, I would not require counsel to provide written documentation in support of a quantum of costs that is low enough that I can take it for granted that it was actually incurred.

[10] That said, the fact that Applicant’s counsel has not provided a Costs Outline of their own effectively deprives the Court of the best comparator for evaluating their submission that Respondent’s counsel spent too much time on the file. Winkler J. (as he then was) made this point emphatically in Ristorto v. State Farm Mutual Automobile Insurance Co. (2003), 64 OR (3d) 135, at para 10, where he indicated that it provides “useful context for the process if the court had before it the bills of all counsel when allegations of excess and ‘unwarranted over-lawyering’ are made”. Where no Costs Outline is submitted by counsel who is then critical of opposing counsel’s investment of time in the matter, the criticism becomes “no more than an attack in the air”: Ganie v. Ganie, 2016 ONSC 1831, at para 33, citing Ristorto, at para 10.

[11] Rule 24(11)(a) of the Family Law Rules directs me to take into account “the importance, complexity or difficulty of the issues”. I am also authorized to consider the lawyer’s rates and the “time properly spent on the case”: Rules 24(11)(c) and (d).

[12] Respondent’s counsel’s Costs Outline strikes me as reasonable in light of these factors. As indicated, the matter – especially the privilege issue on which the Respondent was successful – was legally complex and entailed numerous witnesses (either on affidavit or summonsed to appear). Respondent’s counsel’s bill has been appropriately discounted to reflect success on the major issue but not the minor ones. Further, their hourly rates conform to what I would expect on a partial indemnity basis.

[13] I am not inclined to second-guess the number of hours that the lawyers invested in the motion. Respondent’s counsel’s efforts have shown up in the result of the motion. The matter legitimately required a considerable amount of time and effort in order to be successful, and that is the context I have for evaluating their request. As indicated, Applicant’s counsel gave me nothing by which to compare their own hours and costs.

[14] The Applicant shall pay the Respondent costs in the amount of $81,275.65, inclusive of fees, disbursements, and HST.

Morgan J. Date: July 11, 2017