Court File and Parties
COURT FILE NO.: FC-15-240 DATE: 2019/05/27 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Anderson Llewlyn Norris, Applicant -and- Ellen Seville Norris, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Michael Rappaport, for the Applicant Pierre Ranger, for the Respondent, retained on a limited scope retainer for purpose of this motion only
HEARD: In writing
Costs Endorsement
[1] This endorsement determines costs following the decision released on May 3, 2019 in Norris v. Norris, 2019 ONSC 2795. In that decision, I struck the Applicant’s, Mr. Norris’s, pleadings and granted related relief.
[2] Both parties have provided written submissions on costs.
[3] Having considered the parties’ submissions, the Respondent’s, Ms. Norris’s, bill of costs, and the Family Law Rules, O. Reg. 114/99, as am., I order Mr. Norris to pay costs to Ms. Norris for the motion argued on April 23, 2019 fixed in the amount of $9,250, inclusive of HST and disbursements.
Respondent’s Position
[4] The Respondent, Ms. Norris, seeks her costs on a full indemnity basis fixed in the amount of $16,156.17, inclusive of HST and total disbursements ($265.55), on the basis that she was the successful party. Ms. Norris argues that Mr. Norris’s conduct warrants costs on a full indemnity basis and that her costs are reasonable.
[5] Ms. Norris retained a lawyer to act on her behalf in the preparation and argument of the motion to strike Mr. Norris’s pleadings. Her lawyer was called to the bar in 1982 and his hourly rate is $375. Ms. Norris’s bill of costs reports that he spent 37.5 hours preparing the motion material (21.1 hours), communicating with Mr. Norris’s counsel (0.6 hours), for preparation and attendance at the motion (9.4 hours), and review of the endorsement and preparation of cost submissions (2.9).
Applicant’s Position
[6] Mr. Norris’s first position is that Ms. Norris’s cost submissions should not be accepted by the court because they are late. Ms. Norris’s cost submissions were provided to the court on Wednesday, May 15, 2019, although my endorsement dated May 3, 2019 required them to be filed on or before May 10, 2019. May 10, 2019 was a Friday. Ms. Norris’s counsel sent an email to Mr. Norris’s counsel on May 10, 2019 requesting his consent to an extension to file the cost submissions on May 15, 2019, but no response was provided.
[7] Although Mr. Norris objects to Ms. Norris being allowed to file her submissions late, Mr. Norris does not seek an extension of time to file his responding cost submissions nor does he argue that he will suffer any prejudice as a result of the late filing. His only argument for why Ms. Norris’s submissions should not be accepted is his position that Ms. Norris has never agreed to a single extension of time or adjournment to him, and so should not be entitled to one herself. Mr. Norris points to his request to adjourn the settlement conference on April 12, 2019 which Ms. Norris opposed. That adjournment, due to a death in his lawyer’s family, was granted although I note that in doing so, Justice Summers also scheduled the motion to strike Mr. Norris’s pleadings that was before me on April 23, 2019. Mr. Norris also refers to Ms. Norris’s refusals, in 2016, to agree to his request for an extension of time to file his reply, and to respond to the request to admit. None of these previous occurrences justify not accepting Ms. Norris’s cost submissions, particularly when Mr. Norris is not arguing that he would be prejudiced as a result.
[8] I accept Ms. Norris’s costs submissions even though they are filed late. I find it is in the interests of justice to do so.
[9] Mr. Norris also argues that Ms. Norris “has consistently engaged in sharp practice and bad faith pursuant to Rule 24”. Mr. Norris points to a number of examples of this alleged conduct. A number of these examples relate to conduct prior to this motion, including allegations about what took place in the litigation as far back as 2016, which I do not find are a basis to reduce the award of costs. Other examples relate Mr. Norris’s complaints about the disclosure Ms. Norris has provided and the merit of her claims in the main action, which I also do not find are a basis to reduce the award of costs. Mr. Norris also makes submissions about the relief to which Ms. Norris should be entitled on an uncontested trial, and what she should be required to do before being allowed to have an uncontested trial, which again I do not find are a basis to reduce the award of costs.
[10] In his submissions, Mr. Norris does not argue that Ms. Norris was not the successful party on the motion.
Factors in Determining Costs
[11] 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 to ensure that cases are dealt with justly (Rule 2(2) of the Family Law Rules); Mattina v. Mattina, 2018 ONCA 867.
[12] 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.
[13] 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).
[14] 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.
[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 Rule 18(14).
[16] 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.
[17] 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.
[18] 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.
Success of the Parties
[19] Ms. Norris was the successful party on the motion. She is presumptively entitled to her costs of the motion.
Offers to Settle
[20] Neither party provided me with any offers to settle.
Each Party’s Behaviour
[21] Rule 24(12)(a)(i) specifically directs the Court to consider the reasonableness and proportionality of each party’s behavior as it relates to the importance and complexity of the issues.
[22] I do not find that Ms. Norris’s behaviour was unreasonable or should reduce the award of costs.
[23] I do find Mr. Norris’s behaviour was unreasonable and this behaviour warrants a higher award of costs against him. In particular, as I found in my reasons of May 3, 2019, Mr. Norris’s failure to pay the outstanding costs awards was wilful. His failure to comply with the disclosure orders was wilful. His conduct, which included filing misleading and untrue financial statements, was exceptional and egregious. I do not find that Mr. Norris’s conduct rises to the level of bad faith. I am not prepared to require him to pay costs on a full indemnity basis, although I do find that the award of costs should be higher due to his unreasonable conduct.
Ms. Norris’s Legal Fees
[24] This motion was of significant importance to both parties. The motion was somewhat complex, in that it required consideration of events that had taken place over three years of litigation, in the context of numerous allegations made by both parties against the other, and required a review of case law.
[25] Although Mr. Norris states that Ms. Norris’s legal fees are unreasonable, he does not provide the court with any information on what legal fees he himself incurred for the motion. I infer from this that Mr. Norris also incurred significant legal fees on the motion.
[26] The hourly rate of Ms. Norris’s counsel, being $375 based on a 1982 call, is reasonable.
[27] I am concerned, however, with the amount of time that Ms. Norris’s counsel spent on this matter, which totals 37.5 hours. Some of this time (0.6) is for Ms. Norris’s counsel to request the extension of time to file the costs submissions, which should not be included. Other time entries appear to include work that could have been provided at a lower hourly rate, such as assembly of case books, for which an hourly rate of $375 is not reasonable.
[28] In all of the circumstances, I find that $10,000 in legal fees is a reasonable and proportional amount, given the importance and complexity of the issues. This is equivalent to 26.67 hours of Ms. Norris’s lawyer’s time. With HST (13%) and total disbursements ($265.55, including tax), this totals $11,565.55 in legal fees inclusive of tax and disbursements.
Disposition
[29] Taking all of these factors into consideration, I order Mr. Norris to pay costs to Ms. Norris for the motion argued on April 23, 2019 fixed in the amount of $9,250, inclusive of HST and disbursements. This amount represents approximately 80% of Ms. Norris’s reasonable and proportional costs on a full indemnity basis.
[30] This order shall bear post-judgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, C. C.43 (“CJA”).