Court File and Parties
COURT FILE NO.: FS-15-0186-00 DATE: 2018 10 15 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Thenmoli Ganesh, Applicant and: Sekar Kumaresan, Respondent
BEFORE: Justice G.D. Lemon
COUNSEL: A. R. Toor, Counsel for the Applicant S. Balasunderam, Counsel for the Respondent
HEARD: In Writing
Costs Endorsement
The Issue
[1] Over two dates, I dealt with motions brought by both parties for productions and undertakings from the other. I reserved my decision for written reasons to follow. Both parties were ordered to produce. Both parties were unsuccessful in some of their requests. At the end of my reasons on September 14, 2018, I said:
Given that both sides were required to produce, I advised counsel that I would not order costs. I did not invite any submissions. That was at the end of a long day. On further thought, it occurs to me that there may be factors that I am unaware of that could affect costs. If either party wishes to make submissions, they shall be made within 15 days. If submissions are made, responding submissions shall be made within 15 days thereafter. There shall be no reply submissions unless requested by me.
[2] I have now received those submissions. Both sides say that they were more reasonable and successful than the other. Both sides seek costs from the other.
Authorities
[3] The Family Law Rules provide the following with respect to an award of costs:
- (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
(11) A person setting the amount of costs shall consider,
(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.
[4] Costs rules are designed to foster three fundamental purposes:
(a) to partially indemnify successful litigants for the cost of litigation; (b) to encourage settlement; and (c) to discourage and sanction inappropriate behaviour by litigants. (See: Phuong v. Chan, 46 O.R. (3d) 330.)
[5] Costs awards, at the end of the day, should reflect “what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties”.(See: Boucher v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291, at para. 24.)
Analysis
[6] I do not see that either side can be said to be successful. I do not see that either has been reasonable in bringing such a motion without counsel first sitting down together to consider what has already been produced before preparing long affidavits alleging what has or has not been produced.
[7] Both counsel acknowledged during argument that some of their client’s documents were still required or confirmed that documents had, in fact, been produced by the other. Some requests were withdrawn during argument. That conduct should not be rewarded.
[8] In those circumstances, I decline to make an award of costs.
Justice G.D. Lemon
Date: October 15, 2018