Court File and Parties
COURT FILE NO.: FS-18-92017-00 DATE: 2019 04 03
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
MANINDERPREET KAUR Applicant
Karen Dosanjh, for the Applicant
- and -
SUKHDEEP VIRK Respondent
Ritika Narang, for the Respondent
HEARD: January 15, 2019, at Brampton, Ontario
Price J.
COSTS ENDORSEMENT
[1] The Respondent, Sukhdeep Virk (“Mr. Virk”) seeks an Order requiring the Applicant, Maninderpreet Kaur (“Ms. Kaur”) to pay his wasted costs of an attendance at a Case Conference on January 15, 2019. Ms. Kaur, in the written submissions by her counsel, opposes this request.
BACKGROUND FACTS
[1] Mr. Virk attended the Case Conference on January 15, 2019, with Ms. Daniela Cangelosi, agent for his counsel, Ritika Narang. Ms. Kaur attended with an interpreter but without her counsel, Karen Dosanjh.
[2] Ms. Cangelosi attended with Mr. Virk, as required, at 9:30 a.m., and submitted her counsel slip to the Court Registrar. At 12:30 p.m., when Ms. Dosanjh still had not arrived, the Court directed the Registrar to call her by telephone and inquire as to the reason for her non-attendance.
[3] The Registrar advised the Court, and the Court advised Mr. Virk and Ms. Cangelosi, that Ms. Dosanjh had advised her that she had another matter scheduled in Newmarket that morning and was still in Newmarket at that time. Neither Mr. Virk nor his counsel, nor Ms. Cangelosi, were aware until then that Ms. Dosanjh had another matter scheduled that morning in Newmarket.
[4] Mr. Virk’s counsel had earlier sought to adjourn the Case Conference, as she had been called to trial in Kitchener, Ontario, on January 14, 2019. Ms. Cangelosi had contacted Ms. Dosanjh’s law office that day, requesting an adjournment of the Conference. Ms. Dosanjh’s receptionist advised her that Ms. Dosanjh would not consent to the adjournment. The receptionist did not advise Ms. Cangelosi that Ms. Dosanjh had another matter upon which she was required to attend in Newmarket at 9:30 a.m.
[5] At 1:30 p.m., before calling the luncheon recess, the Court directed the Registrar to call Ms. Dosanjh again and learned that Ms. Dosanjh was just then leaving the courthouse in Newmarket. The Court did not consider it fair to keep Mr. Virk and Ms. Cangelosi waiting any longer than the 4 hours they had already been in attendance. It therefore adjourned the Case Conference to a special appointment before it at 8:30 a.m. on January 31, 2019, when Ms. Dosanjh confirmed by telephone that she would be available. In the meantime, it made an Order for disclosure and a Request for involvement of the Office of the Children’s Lawyer.
[6] The Court read its endorsement to the parties at approximately 1:45 p.m. and Mr. Virk and Ms. Cangelosi left the courthouse at approximately 2:00 p.m. In its endorsement on January 15, 2019, this Court gave Mr. Virk an opportunity to seek costs for the time he and Ms. Cangelosi wasted at court that day, and an opportunity for Ms. Kaur and her counsel to respond.
[7] The Court has reviewed the submissions of both parties. These reasons will address the issue of Mr. Virk’s costs of Ms. Cangelosi’s attendance on January 15, 2019.
POSITIONS OF THE PARTIES
[8] Mr. Virk claims his costs of the attendance in the amount of $1,271.25, inclusive of H.S.T. Ms. Kaur submits that there should be no costs award as the date was not, in fact, wasted, in that a timetable for production of documents was ordered.
Legislative framework
(a) General Principles
The objectives of a costs order
[9] Indemnification of the successful party to a proceeding is generally the paramount objective to be served by a costs order. Other objectives include encouraging settlement, discouraging unreasonable conduct and unnecessary litigation, [1] and preserving access to justice. [2] The ultimate objective in balancing these objectives is to ensure that the justice system works fairly and efficiently. [3]
The discretion to be exercised
[10] The determination as to which party, if any, should compensate the other for his/her costs, and as to the amount of such costs, is “within the court’s discretion.” [4] The court must exercise its discretion with due regard to the objectives of costs awards, and to Rule 24(11) of the Family Law Rules, which sets out the factors relevant to how the objectives are best attained in a particular case. In exercising its discretion regarding the costs of a Case Conference, the Court additionally takes account of Rule 17(18) of the Family Law Rules. It provides:
17(18) Costs shall not be awarded at a conference unless a party to the conference was not prepared, did not serve a required brief, did not make any required disclosure, otherwise contributed to the conference being unproductive, or otherwise did not follow these rules, in which case the judge shall, despite subrule 24(10),
(a) Order the party to pay the costs of the conference immediately;
(b) Decide the amount of the costs; and
(c) Give any directions that are needed.
The outcome of the motion
[11] Consideration of the relative success of the parties is normally the starting point in determining costs. [5] Because there was no motion before the court on January 15, 2019, this is not a factor to be considered in the present case.
[12] Instead, Rule 17(18) directs me to consider the unreasonable conduct of Ms. Kaur owing to her counsel’s failure to attend at the time appointed for the Conference. The Consolidated Practice Direction for Central West Region of the Superior Court of Justice for Ontario provides:
J. Case Conferences and Settlement Conferences
26.1 Counsel and parties are expected to attend all conferences in person.
26.2 Parties may arrange for a conference to occur by teleconference with the consent of both parties and their counsel. If the other party will not consent, a request for a teleconference may be made by filing a Form 14B Motion Form.
[Emphasis added]
[13] In the present case, Ms. Kaur’s counsel did not attend the conference in person and did not request a teleconference by filing a Form 14B Motion Form. Indeed, counsel refused to consent to the reasonable request by Mr. Virk’s counsel for an adjournment of the Conference and insisted that Mr. Virk and his counsel attend on January 15.
[14] As a result of Ms. Kaur’s counsel’s failure to attend, the Conference was less productive than it otherwise would have been. Even though the court made an Order for disclosure and a Request for involvement of the Children’s Lawyer, there was no opportunity for the parties to canvass the issues in the case and determine whether any of them could be resolved by agreement. That is one of the principal purposes of a Case Conference. Rule 17(4) provides, in this regard:
17(4) The purposes of a case conference include,
(a) Exploring the chances of settling the case;
(b) Identifying the issues that are in dispute and those that are not in dispute;
(c) Exploring ways to resolve the issues that are in dispute;….
[15] Those purposes could not be achieved on January 15. The time of Mr. Virk and his counsel were, to that extent, wasted, and Mr. Virk should be compensated for the costs he incurred by having his counsel attend even though Ms. Kaur’s counsel did not.
Factors to be considered
[16] Rule 24(11) of the Family Law Rules lists the factors the court should consider when quantifying costs:
- (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. [6]
Importance, complexity, and difficulty
[17] Because there was no motion before the Court on January 15th, the importance, complexity, and difficulty of the issues do not need to be considered.
Reasonableness of each party’s behaviour – scale of costs
[18] Rule 24(4) of the Family Law Rules explicitly authorizes the use of costs orders to express the court’s disapproval of a litigant’s unreasonable conduct. It provides:
24.(4) Despite sub-rule (1) [which provides that a successful party is presumed to be entitled to the costs of a motion], 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. [Emphasis added]
[19] Ms. Kaur acted unreasonably in refusing, through her counsel, Mr. Virk’s request for an adjournment of the Case Conference, and by her own counsel’s failure to attend at the time appointed. It is appropriate, in these circumstances, that her conduct be sanctioned by means of an Order for costs.
[20] The Family Law Rules do not explicitly provide for costs on either a partial or substantial indemnity scale. Rule 24(8) refers to “costs on a full recovery basis,” where a party has acted in bad faith. In a family law case, the court need not find “special circumstances” before ordering costs on a full recovery basis. [7] It has a range of costs awards open to it, from nominal to just short of full recovery.
[21] In Sims-Howarth v Bilcliffe, (2000), Aston J. held that the two traditional scales of costs are no longer an appropriate way to quantify costs under the Family Law Rules. [8] He stated that, having determined that one party is liable to pay costs, the court must fix the amount at some figure between a nominal sum and full recovery, having regard to the factors set out in Rule 24, without any assumptions about categories of costs. This characterization of costs under the Family Law Rules was approved by the Ontario Court of Appeal in C.A.M. v D.M. [9]
[22] In Berta v. Berta, (2015), the Court of Appeal stated:
In Biant v. Sagoo (2001), 20 R.F.L. (5th) 284 (Ont. S.C.), the court considered the costs award scheme under the rules and commented, at para. 20:
[T]he preferable approach in family law cases is to have costs recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result. There remains, I believe a discretion under Rule 24(1) to award the amount of costs that appears just in all the circumstances, while giving effect to the rules’ preeminent presumption, and subject always to the rules that require full recovery or that require or suggest a reduction or an apportionment.
This court has repeatedly endorsed the Biant court’s approach to the determination of costs in family law disputes: see for example, Ruffudeen-Coutts v. Coutts, 2012 ONCA 263, 15 R.F.L. (7th) 35, at para. 4; Sordi v Sordi, 2011 ONCA 665, 134 R.F.L. (7th) 197, at para. 21; M. (A.C.) v. M. (D.), 23003), 67 O.R. (3d) 181 (C.A.), at para. 40. [10]
[Emphasis added]
[23] Costs must always be proportional to what is at stake in the case, and to the unsuccessful party’s reasonable expectation as to what costs he may face if he is unsuccessful. In appropriate circumstances, unreasonable behavior will result in a higher award of costs. In Perri v. Thind et al., (2010), Henderson J. granted leave to appeal to the Divisional Court from a costs award that was a marked departure from the normal or routine costs made in motions court. [11] In doing so, he stated that costs orders are not designed mainly to be a punishment, but acknowledged that costs, when awarded on a higher scale, can serve to express the court’s disapproval of unreasonable conduct. [12]
b) Applying the principles to the facts of the present case
[24] Having regard to the failure of Ms. Kaur’s counsel’s failure to attend at the time appointed for the Conference, in breach of the Court’s Practice Direction, it is appropriate that she be sanctioned by being ordered to pay Mr. Virk’s costs on a substantial indemnity scale.
Lawyer’s rates
[25] Mr. Virk’s lawyer, Ms. Cangelosi, was called to the Bar in Ontario in 2017. She had practiced law for 1.5 years when she attended the Case Conference on January 15.
[26] Ms. Cangelosi’s actual hourly rate is $250.00. The hourly rate to be allowed on a substantial or full recovery basis must not exceed the actual rates charged. In Mantella v. Mantella, (2006), Corbett J. noted that an award of costs is designed to indemnify, and that the amount should therefore not exceed the amount charged to the client. [13] The Divisional Court, in Geographic Resources Integrated Data Solutions Ltd. v. Peterson, adopted Corbett J.’s analysis in Mantella, holding that it was not trumped by earlier jurisprudence from the Court of Appeal. [14]
[27] The Costs Bulletin of 2005 recommended a maximum partial indemnity rate of $225.00 per hour for lawyers who have practiced law for less than 10 years. This rate, adjusted for the inflation, is now $285.00. Ms. Cangelosi’s actual rate of $250.00 is therefore less than the maximum she is entitled to claim on a partial indemnity scale.
[28] Courts have estimated substantial indemnity costs to be approximately 90% of costs on a full recovery basis. (See: 680195 Ontario Ltd. v. 2169728 Ontario Limited o/a Stoneybrook Auto Service, 2010 ONSC 4064, para. 8, citing Hanis v. The University of Western Ontario et. al., [2006] O.J. No. 2763 (S.C.J.), Power J., at para. 46). The rate of $225.00 per hour that Ms. Cangelosi claims is 90% of her full recovery rate and, as noted, is less than the maximum she is entitled to claim on a partial indemnity scale. For these reasons, I consider $225.00 to be a reasonable rate in the circumstances.
Time properly spent on the case
[29] Rule 24(11)(d) of the FLR directs me to consider “the time properly spent on the case. Ms. Cangelosi was at court for 4.5 hours, from 9:30 a.m. until 2:00 p.m. I find that this was the amount of time that she was reasonably required to spend at the attendance, which lasted until after 1:30 p.m.
Disbursements
[30] No amount is claimed for disbursements.
Other Relevant Matters
[31] I must “step back and examine the overall award with a view to determining whether it is ‘fair and reasonable’ for the kind of matter involved.” In determining what is fair and reasonable, I must take into account the reasonable expectation of the parties concerning the amount of costs. [15]
[32] Ms. Dosanjh has not set out in her written submission the time that Ms. Kaur spent at court on January 15th. Ms. Dosanjh spent no time attending that day, and has not provided information about the hourly rate she charges Ms. Kaur. As a result, that there is no basis for comparing the time Ms. Cangelosi spent, or the amount she is charging Mr. Virk to what amount Ms. Kaur would reasonably have expected Mr. Virk’s costs to be, or the amount she might be required to pay to compensate him. For those reasons, I find the amount claimed by Mr. Virk to be reasonable and proportional to what Ms. Kaur should have expected to pay owing to her lawyer’s failure to attend.
CONCLUSION AND ORDER
[33] Having regard to Ms. Dosanjh’s refusal of Mr. Virk’s counsel’s request for an adjournment of this Case Conference, it is surprising that she did not acknowledge and assume responsibility for the costs that Mr. Virk’s counsel’s agent wasted for her attendance. I have no information from Ms. Dosanjh as to the instructions she received from her client, so I decline to make an Order requiring Ms. Dosanjh personally to pay these costs.
[34] I cannot help but consider, however, that this endorsement should not have been necessary, and was not a responsible use of judicial resources by Ms. Kaur and her counsel, collectively. I will therefore direct Ms. Dosanjh to give this endorsement to Ms. Kaur so that it may inform their discussions of what costs, if any, Ms. Kaur herself should pay to Mr. Virk for his counsel’s attendance, and what, if anything, Ms. Kaur should pay her own counsel for her written costs submissions.
[35] For the foregoing reasons, it is ordered that:
Ms. Kaur shall forthwith pay to Mr. Virk his wasted costs of the attendance at the Case Conference on January 15, 2019, fixed in the amount of $1,271.25, calculated as follows:
- Fees: $1,125.00
- HST: $ 146.25
- TOTAL: $1,271.25
Ms. Dosanjh shall give this endorsement to Ms. Kaur to read, and shall file evidence with the Court that she has done so.
Price J.
Released: April 3, 2019
COURT FILE NO.: FS-18-92017-00 DATE: 2019 04 03
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: MANINDERPREET KAUR Applicant - and – SUKHDEEP VIRK Respondent COSTS ENDORSEMENT Price J.
Released: April 3, 2019
[1] Fellowes, McNeil v. Kansa General International Insurance Co., 37 O.R. (3d) 464 (ON S.C.), para. 10
[2] 1465778 Ontario Inc. v. 1122077 Ontario Ltd., 82 O.R. (3d) 757 (ON C.A.), per Feldman J.A., at para. 45
[3] British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, at paras. 25, 26 [Okanagan].
[4] Courts of Justice Act, s. 131.
[5] Butty v. Butty, [2009] O.J. No. 1887 (SCJ) at para. 4, citing Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (SCJ)
[6] Family Law Rules, O. Reg. 114/99 [as amended]
[7] Sordi v. Sordi, 2011 ONCA 665, 283 O.A.C. 287.
[8] Sims-Howarth v Bilcliffe, [2000] O.J. No. 330 (S.C.J.)
[9] C.A.M. v D.M., [2003] O.J. No. 3707 (C.A.), at para. 42.
[10] Berta v. Berta, 2015 ONCA 918, at paras. 92-93.
[11] Perri v. Thind et al. (2010), 98 O.R. (3d) 74 (S.C.).
[12] Perri, at paras. 24-26, 32-33.
[13] Mantella v. Mantella, (2006), 27 R.F.L. (6th) 76 (S.C.J.)
[14] Geographic Resources Integrated Data Solutions Ltd. v. Peterson, 2013 ONSC 1041
[15] See: Boucher; Moon; Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 75 O.R. (3d) 638 (C.A.).