Court File and Parties
Court File No.: FC-16-2651 Date: 2018/11/05 Superior Court of Justice - Ontario
Re: Hema Niranjan, Applicant -and- Niranjan Rajaghatta, Respondent
Before: Justice P. MacEachern
Counsel: Wade Smith, for the Applicant Niranjan Rajaghatta, self-represented
Heard: In Writing
Costs Endorsement
Overview
[1] This is my decision on costs following my decision in Niranjan v. Rajaghatta, 2018 ONSC 5557.
Positions of the Parties
[2] Ms. Niranjan seeks full recovery of her costs in the amount of $4,165.98, inclusive of disbursements and H.S.T., on the basis that she was the successful party on the motion, she has acted reasonably, and that Mr. Rajaghatta has not. These costs include 9.3 hours of Ms. Niranjan’s counsel’s time, based on an hourly rate of $375. Ms. Niranjan’s counsel was called to the bar in 1986.
[3] Mr. Rajaghatta seeks full recovery of his costs in the amount of $9,145, which includes fees paid to lawyers who have assisted him in this matter, as well costs for his time valued at $125 per hour. Mr. Rajaghatta argues that he was the successful party on child support, that he has incurred substantial costs since March of 2018, that he has fully complied with previous court orders for disclosure, and that Ms. Niranjan has acted illegally and unlawfully.
Analysis
[4] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 recently confirmed that the modern costs rules are designed to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants; and (4) to ensure that cases are dealt with justly (Rule 2(2) of the Family Law Rules).
[5] Rule 24(12) of the Family Law Rules sets out factors relevant to setting the amount of costs, and specifically emphasizes “reasonableness and proportionality” in any costs award.
[6] There is a presumption of costs in favour of the successful party. This presumption does not, however, require that the successful party always be entitled to costs (M. (C.A.) v. M.(D.), [2003] O.J. No. 3707, at para. 40). An award of costs is subject to: the factors listed in Rule 24(12), Rule 24(4) pertaining to unreasonable conduct of a successful party, Rule 24(8) pertaining to bad faith, Rule 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party (Berta v. Berta, 2015 ONCA 918 at para. 94).
[7] Rule 24(12) sets out a list of factors the court shall consider in determining an appropriate amount of costs:
“(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues: (i) each party’s behaviour, (ii) the time spent by each party, (iii) any written offers to settle, including offers that do not meet the requirements of rule 18, (iv) any legal fees, including the number of lawyers and their rates, (v) any expert witness fees, including the number of experts and their rates, (vi) any other expenses properly paid or payable; and (b) any other relevant matter.”
[8] The Family Law Rules only expressly contemplate full recovery costs in specific circumstances, e.g. where a party has behaved unreasonably, in bad faith or has beat an offer to settle under Rule 18(14).
[9] Rule 24(4) addresses the situation in which a successful party has behaved unreasonably:
“Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.”
[10] Rule 24(5) provides guidance on how to evaluate reasonableness:
“In deciding whether a party has behaved reasonably or unreasonably, the court shall examine, (a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle; (b) the reasonableness of any offer the party made; and (c) any offer the party withdrew or failed to accept.”
[11] Rule 24(8) discusses the cost consequences for a party who has acted in bad faith:
“If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.”
[12] The central essence of the appearance before me was Ms. Niranjan’s motion for disclosure from Mr. Rajaghatta and an Order requiring the sale of the Brookstone property. Mr. Rajaghatta also sought to have his own motion heard on the same day but I declined to hear his motion due to improper service. Many of the costs that Mr. Rajaghatta now claims relate to his motion that was not heard.
[13] The two issues that involved the most significant time at the motion were the issues of Mr. Rajaghatta disclosure and the sale of the Brookstone property. Ms. Niranjan was successful on these issues. With respect to disclosure, I specifically found that although Mr. Rajaghatta had a duty to provide full and frank disclosure, he had not done so to date in this matter. My Order included detailed and extensive orders for further disclosure.
[14] I find that Ms. Niranjan was the successful party on the motion and is presumptively entitled to an award of costs.
[15] I find that Ms. Niranjan’s behaviour in this motion was reasonable. I find that Mr. Rajaghatta’s behavior was not reasonable, in particular due to the following:
a. Filing the affidavit from 6630588 Canada Inc. for which the deponent was not identified; and b. Failing to provide full and frank disclosure including with respect to his business interests.
[16] Ms. Niranjan’s presumptive entitlement to costs is not rebutted. Having considered the reasonableness and proportionality of the relevant factors, I order that Mr. Rajaghatta pay Ms. Niranjan costs of this motion fixed in the amount of $3,500, payable forthwith.