Court File and Parties
COURT FILE NO.: FC-14-787 DATE: 2019/05/30
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Karen Bridge, Applicant AND Richard Laurence, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Andrea R. Camacho, for the Applicant Edward C. Conway, for the Respondent
HEARD: In Writing
Costs ENDORSEMENT
[1] The applicant seeks costs in relation to two motions heard on June 22, 2016. The first motion heard was brought by the respondent for recusal based on alleged reasonable apprehension of bias. The second motion was to strike, brought by the applicant. My reasons may be found at 2016 ONSC 5075. Submissions on costs were deferred pending completion of a substantive motion heard by another judge.
[2] The recusal motion was dismissed. In his costs submissions, the respondent reiterates a position he took at the motion, namely that the applicant’s counsel ought not to have written me as Administrative Judge for the Family Court in Ottawa. He relied on this letter as giving rise to the alleged reasonable apprehension of bias. In relation to costs he submits that the “applicant should not be rewarded for this improper step.” This is the only submission the respondent makes in relation to the costs of the recusal motion.
[3] The issue on that motion was not whether counsel should or should not have written to the Administrative Judge, rather whether having done so gave rise to a reasonable apprehension of bias on the part of the Judge. The applicant was successful in the recusal motion. As such, she is presumed entitled to costs. The respondent has not rebutted this presumption by his submission related to counsel’s letter.
[4] The respondent submits there was divided success on the motion to strike, based on his understanding that he was successful on a key issue argued on the motion, namely whether privileged communications could be used to prove an agreement. This submission is based on a misunderstanding of my ruling. I concluded at para. 10 that the existence or not of the alleged agreement was not an issue to be determined at the upcoming substantive motion, rather was an issue for trial. In my ruling at paras. 24 to 26 I held that the issue on the substantive motion would be whether the applicant had made a prima facie case that there is no enforceable waiver of spousal support or agreement for the share transfer as alleged by the respondent, and that mediation or settlement privileged documents may be used for this limited purpose. At para. 32 I wrote:
32 Third, to focus the substantive motions on the issues for determination at those motions, the Respondent shall restrict his motion materials to what is required to have the motion court determine whether or not the Applicant has a prima facie case that no agreement was made. As it is, his materials address whether or not an agreement was made, which is an issue that will only be decided at trial.
[5] I find the applicant was largely successful on the strike motion. I made a very significant detailed order requiring the respondent to take a number of steps to make his motion materials rule compliant. He had delivered a 55 page responding affidavit with nine volumes of exhibits containing more than 200 exhibits. Specific deficiencies included attaching documents that were not referred to in the affidavit, organizing exhibits in a different sequence than referred to in the affidavit, and many footnote references back to a prior affidavit for the purpose of identifying and producing exhibits, meaning that to read this affidavit required cross referencing back to and reading another affidavit.
[6] The volume of materials the respondent produced and the way in which he presented them was unreasonable and was at the heart of the motion to strike. I have no doubt this added considerably to the time and expense of the applicant.
[7] I also made a number of case management orders on my own volition, exercising my jurisdiction under the Family Law Rules O.Reg. 114/99 as am, r. 1 and 2. One was to require the applicant to advise the respondent within 21 days whether she would agree to defer to trial her claim for some two- and one-half years of retroactive spousal support. This was not an order to defer the retroactive claim. It was not an opinion on the merits of the claim. It was not relief requested by the respondent. I do not agree that making the initial retroactive claim was unreasonable conduct. Further the strike order made was applicable whether or not the applicant decided to proceed with her retroactive claim at the substantive motion.
[8] My view is that the necessity for the respondent to respond to the retroactive claim before it was deferred to trial was a consideration properly raised in connection to the substantive motion for temporary spousal support and not in connection to the motions I heard. I hold the same view with respect to his submission that joining four substantive motions in one interim motion was unreasonable conduct by the applicant.
[9] The applicant is entitled to costs of both motions. Her request is for $67,763.96 inclusive of fees, disbursements and HST. This is a claim for full indemnity and is based on Biant v. Sagoo, (2001) 2001 CanLII 28137 (ON SC), 20 R.F.L. (5th) 284 (ONT.SCJ.). That case has recently been considered by the Ontario Court of Appeal in Beaver v. Hill, 2018 ONCA 840, [2018] O.J. No. 5412 at paras. 8-11:
8 Yet, that is not how the costs in this case were determined. Rather, the resulting award approached a full recovery amount. In defence of that result, the respondent relies on what is contended to be the principle from Biant v. Sagoo, 2001 CanLII 28137 (ON SC), [2001] O.J. No. 3693, 20 R.F.L. (5th) 284 (S.C.J.) that costs in family proceedings should "generally approach full recovery". I would make a couple of points in response to that contention.
9 First, while the judge in Biant does make that statement, it is based on two decisions of other Superior Court judges, a close reading of which do not support the thrust of that statement. What those other cases do establish is that under the Family Law Rules, O. Reg. 114/99, judges are not constrained to the normal scales of costs found in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, since no scales of costs are mentioned in the Family Law Rules. Also, the Family Law Rules expressly provide that, depending on the conduct of the parties and the presence or absence of offers to settle, a judge may increase or decrease what would otherwise be the appropriate quantum of costs awarded.
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
[10] In both Beaver v. Hill and Mattina v. Mattina, 2018 ONCA 867, [2018] O.J. No. 5625, the Court of Appeal stresses the importance of reasonableness and proportionality as the “touchstone considerations” to be applied in fixing the amount of costs. Both cases refer to the express provisions in the FLRs that do contemplate full recovery, where a party has behaved unreasonably, in bad faith or has matched or beaten an offer. FLRs r. 24(4) addresses the situation where a successful party has behaved unreasonably. None of these provisions are applicable here.
[11] The applicant is not entitled to full indemnity costs. She is entitled to partial indemnity costs.
[12] The respondent did not direct submissions to the time or charges set out in the applicant’s Bill of Costs. Applicant’s counsel was called in 1987. Her hourly rate of $400 was reasonable, as were her 110 hours spent on the file. She was assisted by a junior associate (2009 call) at $280 per hour and a student at law, at $100 per hour. Respondent’s counsel spent 102 hours on the file. Called in Newfoundland in 1992 and in Ontario in 2001, his hourly rate of $200 was modest such that his Bill of Costs was significantly lower at $23,601 all inclusive.
[13] The amount claimed by the applicant as partial indemnity costs is reasonable and proportional at 60 percent of her full Bill. Accordingly, I fix her costs at $40,930.53, inclusive.
J. Mackinnon J.
Date: May 30, 2019
COURT FILE NO.: FC-14-787 DATE: 2019/05/30
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Karen Bridge, Applicant AND Richard Laurence, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Andrea R. Camacho, for the Applicant Edward C. Conway, for the Respondent
COSTS ENDORSEMENT
J. Mackinnon J.
Released: May 30, 2019