Cohen v. Cohen, 2020 ONSC 1717

COURT FILE NO.: FC-17-1323

DATE: 2020/03/23

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

BARBARA COHEN

Applicant

– and –

STEVEN ERIC COHEN, in his capacity as Trustee of the Estate of SIDNEY COHEN, Deceased

Respondent

Stephen Victor, Q.C., Katherine Cooligan, and Kathleen McDormand, for the Applicant

Marta Siemiarczuk, Daniel Schwartz, and Erin Pleet for the Respondent, Steven Eric Cohen, in his capacity as Trustee of the Estate of Sidney Cohen, Deceased

Susanne Sviergula, for the Third Party Respondent, Kenneth Radnoff, Q.C.

HEARD: In writing

COSTS ENDORSEMENT

corthorn J.

Introduction

1This endorsement follows my ruling on a motion for relief with respect to taking the evidence of a non-litigant witness prior to trial and the preservation of that evidence for use at trial, the latter as may be ordered by the trial judge. Both the Applicant and the Respondent Estate sought to question Kenneth Radnoff, Q.C.

2Mr. Radnoff is the lawyer who, at a minimum, witnessed the signature of the Applicant on a marriage contract. That contract is the first of two marriage contracts that the Applicant seeks to have set aside as part of the relief she requests in this proceeding.

3Mr. Radnoff opposed the request for direct questioning. He was prepared to provide the parties with a Will Say Statement and thereafter, if necessary, answer written interrogatories. On the return of the motion, Mr. Radnoff maintained that position. He did not, however, oppose that Questioning, if ordered, be recorded and his evidence preserved.

4I found that Mr. Radnoff’s evidence is critical to the issue of the validity of the first marriage contract. For that reason, amongst others, I ordered that Mr. Radnoff’s evidence be taken prior to trial. His evidence has since been taken.

5In accordance with my order, the taking of Mr. Radnoff’s evidence was recorded. As per the court’s order, a video and a transcript of Mr. Radnoff’s evidence are being preserved with the use, if any use at all, to be made of either the video or the transcript left entirely to the discretion of the trial judge. Mr. Radnoff will be required to give viva voce evidence if subpoenaed to testify at trial unless the trial judge orders otherwise.

6The Applicant, the Respondent Estate, and Mr. Radnoff had an opportunity to resolve the issue of costs on the motion. The Respondent Estate and Mr. Radnoff resolved the issue of costs as between them. The terms of their agreement in that regard has not been disclosed to the court.

7The Applicant and Mr. Radnoff were unable to resolve the issue of costs as between them. They have each delivered written submissions. The Applicant seeks her costs of the motion in the amount of $34,160. That figure includes costs on a full recovery basis from the date of the Applicant’s offer to settle forward. Mr. Radnoff seeks his costs of the motion, on the partial indemnity scale, in the amount of $3,470. Both figures have been rounded from the figures set out in the costs outlines filed.

The Issues

8The issues to be determined are:

1. Is either the Applicant or Mr. Radnoff entitled to their costs on the motion?

2. If the answer to the first issue is “Yes”, on what scale and in what amount are costs awarded?

Issue No. 1 – Is either of the Applicant or Mr. Radnoff entitled to their costs on the motion?

a) Positions of the Parties

9The Applicant’s position is that Mr. Radnoff is a party to the proceeding for the purpose of the motion. The Applicant relies on r. 14(3) of the Family Law Rules, O. Reg. 114/99 (FLR). It provides that “a person who is affected by a motion is also a party, for the purposes of the motion only” with an exception for children on certain types of motions. The Applicant submits that Mr. Radnoff is not entitled to any special consideration with respect to the issue of costs; he is to be treated as would be the parties to the proceeding at large.

10Mr. Radnoff submits that he is a non-party, even for the purpose of the motion. He draws an analogy between his role in this matter and that of a non-litigant witness who, in a civil litigation proceeding, is the respondent on an application for Letters Rogatory.

11Both the Applicant and Mr. Radnoff made an offer to settle the motion. They each rely to some extent on their respective offers for the purpose of both entitlement and scale/quantum of costs.

b) The Law and Analysis

12Rule 14 of the FLR governs motions for temporary orders. Subrule 14(1) provides that a “person who wants [d]irections on how to carry on the case” may bring a motion for a temporary order. The motion brought by the Applicant (and by the Respondent Estate) falls within that category. I agree with the Applicant that, under r. 14.01(3), Mr. Radnoff is a party for the purpose of the motion.

13When determining the substantive issue on the motion, I relied on the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 with respect to matters that were not addressed in the FLR. Under r. 1(7) of the FLR, I had the discretion to do so. In light of my finding that Mr. Radnoff is a party for the purpose of the motion, I determine the issue of entitlement to costs on the basis of rr. 18 and 24 of the FLR. Under r. 24(1), a successful party on a motion is presumptively entitled to their costs. Offers to settle, if made, may be a factor with respect to entitlement and/or the scale of costs: r. 18(14). The offers to settle are discussed in greater detail below.

14The Applicant relies on the decision of Jarvis J. in Garnet v. Garnet et al, 2016 ONSC 1505. Of the cases upon which either the Applicant or Mr. Radnoff rely, I find Garnet to be of the most assistance. In that case, a third party, who was a respondent on a disclosure motion, was unsuccessful in his opposition to the motion. The third party was ordered to pay the majority of the moving party wife’s costs. The husband was ordered to pay the balance of the wife’s costs. The wife sought costs of $26,280 on the full recovery scale and was awarded $12,000. There is no reference in Jarvis J.’s decision to a specific scale upon which costs were awarded.

15I find that Mr. Radnoff’s opposition to the motion is analogous to the third party’s opposition to the disclosure motion in Garnet.

16I turn next to the offers to settle. For an offer to settle to be a factor with respect to costs, the party relying on their offer must, amongst other things, establish that they obtained an order that is “as favourable or more favourable than the offer”: r. 18(14), item 5. How do the terms of the offers compare to the order made?

17The critical issues on the motion were (a) whether Mr. Radnoff would be questioned in some form, and (b) whether the recording of Mr. Radnoff’s evidence would eliminate the need for him to testify at trial. Both offers to settle include terms that provide for Mr. Radnoff to be questioned in one form or another. The offers differ, however, with respect to whether Mr. Radnoff would be required to testify at trial:

• In his offer, Mr. Radnoff called for his evidence to be taken on a de bene esse basis – meaning that he would not be required to testify at trial. His offer included a term that he would only be required to testify at trial if (a) new facts or issues arose subsequent to the date of his evidence being taken, and (b) further questioning on those facts or issues did not negate the need for him to testify at trial.

• In her offer, the Applicant called for Mr. Radnoff’s evidence to be recorded, a video and a transcript of the evidence taken to be available, and for Mr. Radnoff to be required to testify at trial unless he was hospitalized or mentally incapacitated at the time of trial.

18On the critical issue of whether Mr. Radnoff will be required to testify at trial, I find that the Applicant’s offer is closer to the order made than is Mr. Radnoff’s offer. I use the descriptor “closer” because the Applicant’s offer did not allow for any discretion to be exercised by the trial judge other than on the basis of Mr. Radnoff’s physical and mental condition. The order made allows for such discretion and does not in any way narrow the discretion of the trial judge.

19I find that, if the Applicant’s success on the motion were not a sufficient basis to entitle her to costs, then, that success in combination with the terms of the offers discussed immediately above entitles the Applicant to her costs of the motion.

Issue No. 2 – On what scale and in what amount are costs awarded?

a) Scale on Which Costs are Awarded

20For the reasons discussed in paragraph 18, above, I find that the Applicant did not achieve a result that is “as favourable or more favourable” than her offer. The terms of the Applicant’s offer to settle do not entitle the Applicant to costs on a full recovery basis.

21In support of her claim for costs on a full recovery basis, the Applicant also relies on Mr. Radnoff’s conduct. I find nothing in his conduct in response to the motion that warrants a ‘sanction’ in the form of an order requiring him to pay the Applicant’s costs on a full recovery basis.

22The quantum of costs awarded is therefore fixed in accordance with the factors set out in Rule 24 and the principles established by the case law.

b) Quantum of Costs Awarded

23The principles upon which costs are fixed include the core principle of proportionality and the reasonable expectations of the opposing party. With respect to the latter, the comparisons drawn by Mr. Radnoff between the costs he incurred in responding to the motion and the costs incurred by the Applicant are helpful:

• The number of timekeepers: three counsel (two senior and one associate counsel) carried out the work on the Applicant’s behalf. One senior counsel (with the exception of 0.4 hours docketed by a junior associate) carried out the work required in response to the motion.

• The number of hours: for the Applicant, a total of 76.7 hours is identified in the costs outline. For Mr. Radnoff, the total number of hours identified is 12 hours (less than one-sixth of the time identified in the Applicant’s costs outline).

• The costs: the Applicant’s full recovery costs (from start to finish) are in excess of $36,000; Mr. Radnoff’s are $5,100 (roughly one-seventh of the Applicant’s costs).

24Some of the difference in absolute dollar amounts is explained by the difference in the hourly rates charged by senior counsel for the Applicant and senior counsel for Mr. Radnoff. For the Applicant, the hourly rates charged are $525 for Ms. Cooligan (a 1991 call), $500 for Mr. Victor (a 1968 call), and $280 for Ms. Cybulski (a 2012 call). The hourly rate for Mr. Radnoff’s counsel, Ms. Sviergula (a 2001 call) is $300.

25As between solicitor and client, I find nothing unreasonable about the hourly rates charged by senior counsel for the Applicant. If one assumes an increase of $10 per hour for each of the roughly 20 years’ difference in experience between Ms. Cybulski and Ms. Cooligan, Ms. Cybulski’s hourly rate is also reasonable. The overall difference in the rates charged by the various firms involved is likely a reflection of the difference in the nature of their respective retainers.

26Turning to the differences in approach, I find that the work carried out by the Applicant’s counsel is excessive and, at times, duplicative. The issue determined on the motion was significant to all concerned and the monetary amounts at stake are significant to the parties. That significance does not, however, justify the incursion of in excess of 75 hours – essentially two weeks of full-time work – on the motion.

27The Applicant is entirely within her right to retain more than one senior counsel to represent her in this proceeding; the outcome is of great importance to her. She is not, however, entitled to expect that her personal choice in that regard will be visited upon a third party respondent to a motion of this kind.

28It is not unusual for a moving party to incur a greater expense than a responding party. Even accepting that factor, a responding party would not expect a moving party to incur six times the costs incurred by the responding party. I find that a multiplier of 1.5 to 2 would be reasonable to expect.

29Taking into consideration the differences in the hourly rates and a reasonable difference between the work on behalf of a moving party and that on behalf of a responding party, I fix the Applicant’s costs at $10,000 inclusive of fees, disbursements, and applicable HST.

30The figure of $10,000 is not a rough number pulled out of the air. That figure is based on arithmetic calculations that account for the findings and factors discussed above. It is a coincidence that those findings and factors lead to a number in the range of $10,000.

Summary

31The court orders that Mr. Radnoff pay to the Applicant her costs of the motion, fixed in the amount of $10,000 inclusive of fees, disbursements, and HST. In light of the current circumstances, including the indefinite suspension of regular court operations, the costs shall be paid within 45 days of the date on which this endorsement is released.

Justice S. Corthorn *

Madam Justice Sylvia Corthorn

• An electronic signature was used because of the suspension, as of the date of this endorsement, of regular court operations. Upon resumption of regular court operations, if not at an earlier time, a copy of this endorsement, with Justice Corthorn’s signature, shall be sent to counsel for the parties on the motion and sent for publication. The original signed endorsement will be added to the court file at that time. In the interim, a copy of the endorsement with the electronic signature is being added to the court file.