Court File and Parties
COURT FILE NO.: FC-17-2220 DATE: 2018/08/15
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ANNE MARIE CECILE CLAIRE MURRAY – Applicant v. SUHAIL MASOOD CHOUDHARY - Respondent
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Thomas Hunter, for the Applicant Suhail Masood Choudhary, Self-Represented
HEARD: In Writing
Costs ENDORSEMENT
Introduction
[1] This endorsement follows the applicant’s success on an interim motion. The applicant obtained an order granting her exclusive possession of the parties’ home. The applicant was also granted a temporary restraining order against the respondent. The parties were unable to agree upon costs. I received written submissions.
[2] The applicant seeks her costs of the case conference at which the motion date was set and of the motion, on a full-indemnity basis, in the amount of $40,127.18. That figure is broken down as follows: fees of $35,234.50; HST on fees of $4,580.49; and disbursements (including HST) of $312.19.
[3] The respondent’s position is that (a) the applicant was not fully successful on her motion, and (b) he does not have the financial means with which to pay costs. The respondent makes no submissions with respect to either the scale or quantum of costs.
Factors
[4] Rule 24 of the Family Law Rules sets out the factors to be considered by the court when determining the issue of costs (O. Reg. 114/99). The factors include that the successful party is presumed to be entitled to their costs, the importance and complexity of the proceeding, unreasonable behaviour or acts of bad faith by a party, offers to settle, hourly rates (as they relate to the Information to the Profession), time spent, the principle of proportionality, and the reasonable expectations of the unsuccessful party.
Analysis
[5] I agree with the applicant that the presumption in r. 24(1) applies; as the successful party, the applicant is presumed to be entitled to her costs of both the case conference and motion.
[6] It is not entirely clear that the respondent makes submission that relates to r. 24(5), alleging that the applicant behaved unreasonably and should therefore be deprived of a part or all of the costs to which she is entitled. The respondent submits that the motion took much longer to be heard than the time for which it was originally scheduled because of (a) an evidentiary issue with respect to the admissibility of a recording on the applicant’s voicemail, and (b) the failure on the part of counsel for the applicant to accurately estimate the time required for the motion to be heard. The recording was found to be admissible for the purpose of the motion.
[7] I agree with the respondent’s submissions with respect to additional time being required on the motion for the first reason. The respondent fails to acknowledge, however, that additional time was required because of the preliminary issue that arose by reason of his delinquency in filing his answer, financial documents, etc. I also agree with the respondent that the time required for the motion was significantly underestimated.
[8] For a number of reasons, I exercised my discretion to grant the parties a hearing that was longer in duration than the amount of time originally estimated. I find that, both with respect to time taken for the motion to be heard and more generally, there was no conduct on the part of the applicant, in the context of the motion itself, that detracts from the presumption of entitlement to costs based on success on the motion.
[9] I find that the issues were of importance to the applicant (r. 24(11)(a)). The motion addressed the applicant’s sense of personal safety and well-being. As a result of her success on the motion, the applicant was able to return to the home in which she had been living while the respondent lived for several months in Europe. The home had, until the respondent’s return from Europe, been a source of rental income for the applicant. In addition, the restraining order addressed the applicant’s concerns for her personal safety.
[10] I turn next to the scale on which costs are awarded and fixing the quantum of costs.
Scale of Costs
[11] The applicant seeks her costs on a full indemnity basis or, in the alternative, on a substantial indemnity basis to the date of her offer to settle and a full indemnity basis from the date of her offer to settle forward. In the latter regard, the applicant relies on r. 18(14). The applicant’s offer to settle is dated March 23, 2018. The motion was argued on March 29 and April 3, 2018.
[12] The applicant’s bill of costs does not delineate between work done prior and work done subsequent to March 23, 2018. The bill of costs distinguishes between the preparation of the motion materials and preparation for argument on the motion. Absent better evidence, I find that (a) all of the work done in preparing the motion materials was done prior to the date of the offer to settle, and (b) all of the work done in preparation to argue the motion was done subsequent to March 23, 2018.
[13] With respect to the issues that were determined on the motion, I find that the applicant attained a level of success that essentially matches the relevant terms of the offer to settle. As a result, r. 18(14) applies in the circumstances. The applicant is entitled to her costs on a full indemnity basis from the date of the offer to settle forward.
[14] As an alternative approach to her request for costs on a full indemnity basis throughout, the applicant makes lengthy submissions with respect to unreasonable and/or potentially bad faith conduct on the part of the respondent (rr. 24(5), (8), and (11)(b)). The applicant’s submissions in that regard speak to the respondent’s conduct historically. The submissions do not address the respondent’s conduct in the context of the litigation—other than to highlight the respondent’s delinquency in filing materials.
[15] As a result of his delinquency in filing materials, there were no materials from the respondent before the court on the motion. That was the consequence of his delinquency. I am not convinced that the respondent’s historical conduct—outside the context of the litigation—is conduct of the kind that is relevant to the issue of costs of the motion.
[16] I find that the applicant is entitled to her costs on a substantial indemnity basis to March 23, 2018 and on a full indemnity basis thereafter.
[17] On February 12, 2018, the parties attended a case conference. The presiding judge, Audet J., made an endorsement that provides for the costs of the case conference to be reserved to the judge hearing the applicant’s motion. I find that the applicant is entitled to the costs of the case conference.
Quantum of Costs
[18] With respect to the quantum of costs, I find as follows:
• The hourly rate claimed of $295 for the applicant’s counsel, who has 41 years at the bar, is reasonable on a full indemnity basis. I also accept that an hourly rate of $195 per hour for the junior associate is reasonable on a full indemnity basis;
• The number of hours claimed for the case conference (21.4 hours and all senior counsel) is excessive;
• The number of hours claimed for the preparation of the motion materials (60.2 hours for senior counsel and 9 hours for junior counsel) is excessive. The total time represents approximately two full weeks of work;
• The number of hours claimed for the preparation of the offer to settle (5.5 hours and all for senior counsel) is reasonable;
• The number of hours claimed for preparation for the motion (21 hours over four days and all for senior counsel) is excessive; and
• The counsel fee claimed for the motion (6 hours and all for senior counsel) is reasonable.
[19] I find that the full indemnity costs of slightly in excess of $40,000, is not proportional to the nature of the relief sought on the motion. Although the respondent does not address the issue of expectations, I find that an unsuccessful party on a motion of this kind would not expect to pay costs quantified based on a starting point of $40,000 in full indemnity fees.
[20] Having considered the above factors, I fix the applicant’s substantial indemnity fees for the period prior to March 23, 2018 in the amount of $14,000 and full indemnity fees for the period subsequent to March 23, 2018 in the amount of $6,000.
[21] The respondent takes no issue with the disbursements claimed. They are, in any event, minimal in number and amount. I allow the full amount of the disbursements claimed ($276.27) and the HST thereon ($35.92) for a total of $312.19.
Disposition
[22] The respondent shall pay to the applicant her costs of the case conference and the motion in the amount of $22,900, calculated as follows:
Substantial indemnity fees (case conference and to Mar. 23/18) $ 14,000.00
Full indemnity fees (Mar. 23/18 forward) $ 6,000.00
HST on fees $ 2,600.00
Disbursements (including HST) $ 312.19
Total (fees, disbursements, and HST) $ 22,912.19
Rounded to $ 22,900.00
Madam Justice Sylvia Corthorn
Date: August 15, 2018
COURT FILE NO.: FC-17-2220 DATE: 2018/08/15
ONTARIO SUPERIOR COURT OF JUSTICE
RE: ANNE MARIE CECILE CLAIRE MURRAY – Applicant v. SUHAIL MASOOD CHOUDHARY - Respondent
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Thomas Hunter, for the Applicant Suhail Masood Choudhary, Self-Represented
COSTS ENDORSEMENT
Released: August 15, 2018