Court File and Parties

Court File No.: CV-16-566486 Date: 2019-09-23 Superior Court of Justice – Ontario

Re: Kerry Adler, Applicant And: Thomson, Rogers, Respondent

Before: Mr. Justice Peter Bawden

Counsel: Karen Zvulony, for the Applicant Robert G. Schipper, for the Respondent

Heard: In writing

Costs Endorsement

Request for costs of $31,877.30 based on preparation of materials and appearance for a one-day application which was decided in favour of the Respondent.

Decision:

Mr. Adler shall pay Thomson, Rogers costs of $30,458.38 forthwith.

[1] The Applicant sought to assess 30 accounts which had been rendered by the law firm of Thomson Rogers. The Applicant alleged incompetence and malfeasance on the part of senior partners of the firm.

[2] The Applicant also sought to seal the Court file concerning his application claiming that public disclosure of the materials filed by the Respondent would endanger himself, his colleagues and his children. That application was granted to the extent that counsel for the Applicant was permitted to remove any information from the file which tended to identify the Applicant’s children.

[3] No fault can be attributed to the Respondent for having filed materials which identified the Applicant’s children. Mr. Adler himself had never sought to protect that information. Although this issue was resolved in favour of the Applicant, it was a minor aspect of the application and likely could have been resolved on consent.

[4] The application to order an assessment of the accounts was resoundingly denied. The Court found that the Applicant’s affidavit was seriously misleading and that it failed to demonstrate special circumstances which would justify ordering an assessment of accounts more than 30 days after they had been rendered. The judgment cited previous judicial condemnation of Mr. Adler’s actions during the family law litigation and affirmed those comments based on materials filed by the Respondent.

[5] Neither side made any offer to settle the litigation.

[6] Thomson, Rogers was represented by Mr. Robert Schipper. Mr. Schipper was called to the Bar in 1975 and has been a specialist in civil litigation since 1993. It is hardly surprising that the Respondent chose to retain highly experienced counsel considering the allegations made by Mr. Adler against Thomson, Rogers.

[7] Mr. Schipper has submitted a Bill of Costs charging $350 per hour which represents roughly 65% of his regular billing rate in 2018. In my view, this is a perfectly reasonable hourly rate given Mr. Schipper’s long experience at the bar, the complexity of the facts in this case and the seriousness of the allegations made by the Applicant.

[8] It is very difficult to assess what Mr. Adler’s expectations were when he set out on this application. As Mr. Schipper points out, the Applicant’s counsel did not include her own account in support of her position on costs so there is no evidence of what Mr. Adler invested in the Application. If he was guided by his previous experience in the family law proceedings, he might have expected costs substantially greater than those requested by the Respondent. Costs were routinely ordered against Mr. Adler throughout those proceedings including one order to pay $104,774. (Adler v. Adler, 2016 ONSC 386)

[9] Given the gravity of the allegations which Mr. Adler made in his affidavit, he must have foreseen that the law firm would reply vigorously. The costs order sought by Mr. Schipper is commensurate with his vigorous but measured reply to Mr. Adler’s patently false allegations.

[10] Ms. Zvulony observes that the law regarding the assessment of accounts is not complex. The facts of this case, however, were complex. Mr. Adler’s allegations demanded detailed responses from two senior partners at Thomson, Rogers. Their affidavits were supported by extensive materials which detailed the efforts of the firm to represent Mr. Adler in his multi-faceted family law file. Mr. Schipper’s dockets fairly set out the time which was required to prepare those materials and there is nothing unreasonable about his preparation time.

[11] The Respondent was also obliged to research and prepare argument concerning the Applicant’s request to seal the Court file. Ms. Zvulony noted Mr. Schipper’s long experience at the Bar and suggested that his preparation time for this issue was excessive considering his experience.

[12] The application to seal the Court file had important public interest elements which went beyond the confines of this litigation. That aspect of the application had little impact on the Respondent but, to his credit, Mr. Schipper prepared a concise and authoritative summary of the law in defence of the Open Courts principle. He also researched and presented evidence which substantially undermined the factual assertions made by Mr. Adler in his affidavit in support of the sealing order. That was an important service to the Court and the public.

[13] Ms. Zvulony advises in her submissions that she sought an admission from the Respondent that all 30 of the accounts rendered to Mr. Adler should be treated as interim accounts. The Respondent evidently refused to make that admission. Although the issue was ultimately resolved in favour of Mr. Adler, the case law on this point is conflicting and there was nothing unreasonable about the position taken by Thomson, Rogers. Mr. Schipper has docketed a total of 9 hours for the preparation of this aspect of the argument. I will deduct 6 hours from that total in recognition of the fact that the Applicant was successful on this issue and had sought an admission which would have lessened the preparation time for both parties.

[14] In the result, the Applicant is ordered to pay to the Respondent $26,110 in fees, $3,394.30 in HST and disbursements of $954.08 for a total of $30,458.38. Payment is to be made forthwith.

Justice Peter Bawden

Released: September 23, 2019