Citation: Carr v. Condon, 2017 ONSC 4955
COURT FILE NO.: 11062/09 (Welland)
DATE: 2017-08-21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Sharon Mae Carr
Applicant
- and -
Timothy John Condon
Respondent
COUNSEL:
Maria G. Lucarelli and Harold Niman, for the Applicant
Kirsten Hughes and Michael P. Clarke, for the Respondent
RULING ON COSTS
P.R. SWEENY J.:
Introduction
[1] On May 29, 2017, I released my Reasons for Judgment in this matter. The Respondent was successful. The parties were unable to resolve the issue of costs and I have received costs submissions from the Respondent and a costs brief from the Applicant.
[2] The Respondent seeks his costs fixed in the amount of $185,000.00 inclusive of disbursements and HST. The Applicant submits that the Respondent should be awarded costs on a partial indemnity scale in the amount of $44,000.00 inclusive of fees, disbursements and HST.
[3] The Respondent was successful. The Applicant’s motion to change was dismissed. The Applicant was awarded some share in a minimal incentive bonus. Therefore, the Respondent is entitled to costs (see Rule 24(1) of the Family Law Rules).
[4] In this case, the Respondent did not behave unreasonably and so there is no reason to deprive him of all or part of his costs, or that he should pay all or part of the costs of the Applicant pursuant to Rule 24(4).
[5] The Applicant made two offers to settle. In the result, the Applicant did not obtain an order more favourable than the offers to settle and accordingly, they have no impact on my award of costs.
[6] The Respondent made two offers to settle. The offers to settle were not in compliance with Rule 18 of the Family Law Rules in that they were not signed by both the party and the lawyer, and they were time limited. Therefore, the offers do not entitle the Respondent to full recovery costs pursuant to Rule 18(14).
[7] The real issue in this case is the quantum of costs.
[8] In setting costs, Rule 24(1) of the Family Law Rules sets out the considerations as follows:
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness of each party’s behaviour in the case;
(c) the lawyer’s rates;
(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter.
[9] The Respondent has provided a Bill of Costs outlining the hours spent and rates charged, together with a list of disbursements. On a full recovery basis, the Respondent spent $197,655.88.
[10] The Applicant raises a number of issues. The Applicant states that the hourly rates charged are excessive; two senior counsel ought not to have been used for the trial; the time spent is excessive; some of the disbursements are not supported by invoices, transcripts should not have been ordered, personal travel costs, flights and accommodations of the Respondent ought not to be awarded. I shall address these issues.
Hourly Rates
[11] The hourly rates charged by the Respondent’s counsel seem reasonable on a full indemnity basis. However, I do not propose to award costs on a full recovery basis. Therefore, there will be a reduction. The Applicant has provided no Bill of Costs. I have no information with respect to the hourly rates charged by Applicant’s counsel. Therefore, I view with some scepticism the criticism of the hourly rates.
[12] In her cost submissions, the Applicant refers to the Costs Bulletin which sets out maximum hourly rates on a partial indemnity basis. This is not regulation. Using the analysis set out in Docherty v Melo, 2016 ONSC 7579, the maximum hourly rates on a partial indemnity basis would be $367.00 for Ms. Hughes, $430.00 for Mr. Clarke, $275.00 an hour for lawyers with less than 10 years’ experience, and $100.00 an hour for law clerks. While I do not subscribe to the simple formulaic approach to adjusting these figures for inflation and applying them to every case, it does provide some context to examine the reasonableness of the costs in this case.
[13] Given the nature of this matter, including its complexity and the amount at stake, which in my view, is a factor to be considered, reasonable partial indemnity rates for counsel would be as follows: Mr. Clarke - $425.00/hour, Ms. Hughes - $340.00/hour, junior counsel - $150.00/hour, and law clerks - $100.00/hour.
Use of Additional Counsel
[14] The Applicant is critical of the Respondent using a second trial counsel. However, the Applicant had two senior counsel acting on her behalf throughout the course of the trial. Mr. Clarke had 14 years more experience than Ms. Hughes. It is also my understanding that the Applicant had two counsel retained much earlier than the Respondent. In the circumstances, I am prepared to allow the Respondent a counsel fee for two counsel at trial.
Time Properly Spent on the Case
[15] The Respondent claims 148.5 hours for Ms. Hughes for preparation for trial, including meeting with clients and preparation of documents, 59.1 hours for junior counsel, and 30.3 hours law clerks. The Applicant seeks to arbitrarily reduce those figures on the basis that they are unreasonable. However, the Applicant has provided no Bill of Costs or details of the amount she paid. Without the benefit of a Bill of Costs from the Applicant, it is difficult to simply reduce the time spent on the basis that it is unreasonable. The applicant acknowledges that the issues involved were complex. However, she asserts it was only complex from her perspective and not from the perspective of the Respondent. I am not persuaded by this submission. The matter was important to the parties and the complexity runs both ways.
[16] Multiplying the hours spent by the hourly rates on a partial indemnity basis as I have determined leads to $62,385.00 in fees for pretrial preparation. In my view, a reasonable amount for pretrial preparation is $55,000.00.
[17] With respect to the trial costs, Ms. Hughes claimed 60.3 hours. Mr. Clarke did not attend on the final day for submissions, so some reduction in that amount is warranted. The trial costs for two counsel based on the hourly rates on a partial indemnity basis as I have determined leads to about $42,500.00 in fees for trial.
[18] I will not award any costs for counsel’s travel time. While clients are entitled to retain counsel from anywhere in the province, another party should not be responsible for paying the travel time for that lawyer.
[19] Based on my analysis above, the reasonable fees are $97,500.00 on a partial indemnity basis. This is an extraordinary amount of money. However, I once again note that I have no information from the applicant as to the amount she spent for legal fees. Therefore, I cannot assess whether it is unreasonable from her perspective. In all the circumstances, in my view it is appropriate that the legal fees inclusive of HST be fixed at $110,000.00.
Disbursements
[20] The Respondent claims a number of items for disbursements which in my view are not appropriate. Accommodation, meals, transportation, and parking for lawyers are not matters that should be recovered, and I disallow those amounts.
[21] The claims for facsimile, postage, long-distance charges, and couriers are appropriately overhead of the law firm and will not be allowed. The photocopying claim at $1,902.00 without any details as to the number of copies in the charge seems excessive. I reduce the photocopying claim to $1,000.00.
[22] The personal expenses associated with the Respondent for travel and for the hearing are, in my view, not recoverable and I disallow those claims. I will allow the disbursement for the trial transcripts. They were used in the written submissions of both parties. The disbursement to Grant & Sadvari in the amount of $4,160.00 without any explanation will not be allowed. In the result, I fix the total amount for disbursements inclusive of HST at $24,000.00.
[23] In the result, the Applicant shall pay to the Respondent his costs fixed in the amount of $134,000.00 within 30 days.
Sweeny J.
Released: August 21, 2017
CITATION: Carr v. Condon, 2017 ONSC 4955
COURT FILE NO.: 11062/09 (Welland)
DATE: 2017-08-21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Sharon Mae Carr
Applicant
- and -
Timothy John Condon
Respondent
RULING ON COSTS
PRS:co
Released: August 21, 2017