Court File and Parties

COURT FILE NO.: FC-17-1870 DATE: 2018/12/12 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Karen Enid Elaine Martin, Applicant AND: David Blair Watts, Respondent

BEFORE: J. Mackinnon J.

COUNSEL: James D. S. Whyte, for the Applicant Michael Rappaport, for the Respondent

HEARD: In Writing

COSTS Endorsement

[1] The applicant seeks costs fixed in the amount of $4,500 for the motion heard on October 22, 2018. The respondent was the moving party seeking disclosure and procedural relief. For reasons given at 2018 ONSC 6566 the motion was substantially dismissed.

[2] I agree with the applicant that the additional disclosure she was ordered to produce was not specifically requested in the Notices of Motion delivered by the respondent. I also note that the other relief obtained by the respondent, namely permission to deliver an amended Answer was consented to in the applicant’s Offer to Settle the motion. Further many of the unmeritorious demands for production were premised on the respondent counsel’s misreading of a bank statement. This error was also at the root of unfounded allegations of money laundering.

[3] In my reasons I found the applicant was the successful party and was entitled to costs of the motion. Submissions were invited on the amount of those costs.

[4] The position of the moving party is that costs should be deferred to the trial judge. He provides three reasons. The first is that I should have recused myself from hearing the motion even though I was not asked to. He submits that because his counsel filed a complaint to the Canadian Judicial Counsel against an Ottawa judge that there was a reasonable apprehension of bias on my part that I should have identified and acted on. I disagree. Nor should this issue be raised after the motion has been heard and determined.

[5] The second reason provided is that a case management judge has been assigned to the case in accordance with my direction. The case management judge has scheduled a case management conference in February 2019 which will canvas, amongst other issues, disclosure. The submission made is that the case management judge will then proceed to “address the disclosure issues which should have been addressed on October 22, 2019”, and as such, costs should be deferred until after she has done so. The inference is that the case management judge will order disclosure that I have already declined to order. That of course remains to be seen. The prospect of what another judge may or may not do in the future is not a reason to defer fixing costs on the motion I decided.

[6] The third reason provided is found in the lengthy re-argument of the issues in the motion, including by providing additional factual content that was not included in the motion record. This is improper. The moving party may not re-argue the motion or amplify the record as part of his costs submissions.

[7] I have not been persuaded that I should defer the fixing of the amount of costs to another judge at some later point in the litigation. Family Law Rules O.Reg. 114/99 as am, r 24(10) provides:

DECIDING COSTS

(10) Promptly after dealing with a step in a case, the court shall, in a summary manner, (a) determine who, if anyone, is entitled to costs in relation to that step and set the amount of any costs; or (b) expressly reserve the decision on costs for determination at a later stage in the case. O. Reg. 298/18, s. 14. (10.1) Revoked : O. Reg. 298/18, s. 14.

[8] I have already determined that the applicant is entitled to costs, and accordingly shall proceed to set the amount of costs. I note that the moving party did not address this issue in his submissions.

[9] The applicant’s Bill of Costs sets out her counsel’s rate of $300 per hour. The rate is reasonable having regard to his years of experience. A total of 13 hours has been charged for the services related to this motion. Unfortunately and unbeknownst to counsel the original hearing date was inadvertently cancelled by the court office. This meant counsel attended on the first scheduled date as well as the actual hearing date, and was obliged to prepare to argue the motion on both occasions. This in my view provides an adequate explanation for the number of hours spent. I find those additional hours are properly included in the Bill of Costs. The respondent is not responsible for the court’s inadvertence but the successful applicant did have to incur the fees related to the first hearing date which did not proceed.

[10] The applicant has also been charged at the rate of $150 per hour for services provided by counsel’s legal assistant, for a total of $450. These services were for preparing a draft list of disclosure provided by the applicant, updating her affidavit to include all such disclosure, compiling exhibits into the affidavit, serving the respondent and filing the documents at court. These are all services properly charged to a client and properly included in a party and party Bill of Costs.

[11] The amount claimed by the applicant is approximately 91 percent of her full solicitor client bill. This is not a case where FLRs, r 18(14) applies. The applicant’s Offer to Settle the motion was reasonable but it was not as good as or more favourable than the motion outcome. FLRs r 24 (12) sets out the considerations applicable to setting the amount of costs. It is set out in paragraph 13 below.

[12] In Mattina v. Mattina, 2018 ONCA 867, [2018] O.J. No. 5625 the Ontario Court of Appeal stated at para 15:

15 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 r. 18(14).

[13] This was re-affirmed by the Court of Appeal in Beaver v. Hill, 2018 ONCA 840, [2018] O.J. No. 5412 at paras 10 – 13:

10 Second, the respondent's assertion that this court's decision in Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730 supports the "full recovery" approach to costs in family matters also reflects a failure to read the decision closely. What this court endorsed in that case was the principle that "a successful party in a family law case is presumptively entitled to costs" (at para. 94) subject, though, to the factors set out in Rule 24. This caveat is an important one since, as this court pointed out in Frick v. Frick, 2016 ONCA 799, 132 O.R. (3d) 321, the Family Law Rules "embody a philosophy peculiar to a lawsuit that involves a family" (at para. 11).

11 There is no provision in the Family Law Rules that provides for a general approach of "close to full recovery" costs. Rather, r. 24(12) sets out the appropriate considerations in fixing the quantum of costs. It reads:

(12) In setting the amount of costs, the court shall consider, (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

12 As the wording of the rule makes clear, proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.

13 Further, a "close to full recovery" approach is inconsistent with the fact that the Family Law Rules expressly contemplate full recovery in specific circumstances, e.g. bad faith under r. 24(8), or besting an offer to settle under r. 18(14). Consequently, the motion judge erred in principle in adopting a "close to full recovery" approach in fixing the costs of these motions. I would note that such a result also appears inconsistent with her determination that full recovery costs were not appropriate in this case.

[14] The court in Mattina appears to have endorsed a range for partial recovery costs of 60% to 70% of the approved Bill of Costs. Applied to the full Bill here of $4,957 that would produce a range of $2,974 to $3,470. My conclusion is that the applicant’s costs should be fixed at the upper end of that range having particular regard to the errors arising from the misreading of the bank statement.

[15] For these reasons the applicant’s costs are fixed in the sum of $3,470 payable forthwith.

J. Mackinnon J. Released: December 12, 2018