Court File and Parties
Court File No.: (LONDON) F 196/15 Date: 20200507 Ontario Superior Court of Justice
Between: Amneh Tawfic Abu-Saud, Applicant And: Azam Asaad Abu-Saud, Respondent
Counsel: Sharon Hassan, for the Applicant B. Thomas Granger, for the Respondent
Heard: Written submissions
Reasons on Costs
Carey J.:
[1] I have received extensive costs submissions from both parties. The successful party applicant filed a fulsome costs submissions brief and in response to the costs submissions of the respondent. The applicant seeks total costs, including disbursements and HST, of $105,227.97. The disbursements alone as detailed in the applicant’s costs outline chart come to $33,792.85. Fees are requested of $59,330.
[2] The respondent’s counsel, Thomas Granger, Q.C., a retired judge of the Superior Court, indicates by way of addressing r. 57.01(1)(0.b) that the fees he billed to his client were $25,000, with no amount indicated for disbursements. The respondent submits that as a result of his client’s expectations of what a reasonable fee in this matter should be, as well as the late need to penalize the lateness of the applicant’s delivery of her expert’s report, that costs should be restricted to no more than $25,000 inclusive of disbursements. He argues that a costs award in excess of $25,000 would “financially destroy the respondent and his corporation.” He also argues that excessive costs awards curtail access to justice by preventing litigants with reasonable issues venturing into the courtroom. He says that both the fees and the disbursements charged in comparison to those of the respondent’s counsel and expert are excessive and unjustified.
[3] The applicant’s response reiterates that the applicant was successful on all issues contained in her offer to settle dated November 9, 2017 (at Tab 4 of the applicant’s costs submissions). She further submits that the Martindale reports were not finalized until January 2018 and were contained in the disclosure sought at trial clearly marked “Draft”. She says that the adjournments that were requested were both reasonable and the consent adjournment in September of 2018 was due to a health issue of the respondent’s counsel and and, in any event, the matter proceeded to trial in November of that year.
[4] She asserts that whereas Mr. Martindale testified for two full days in this trial (November 20 and 21), Mr. Hoare for the respondent testified for only a portion of one day.
[5] Finally, the applicant points out that her counsel, Ms. Hassan, is senior counsel having 26 years at the bar and that the rate of $375 per hour and the hours of 124 for senior counsel and 21 for junior counsel are reasonable in comparison to the 100 hours claimed by respondent’s counsel in light of the substantial volume of productions which respondent’s counsel argues were required to be considered and analyzed. She says she attempted settlement through a reasonable offer and was required to seek substantial disclosure and retain an expert to fully and fairly “advance her entitlement to share in the fruits of the 26-year marriage.” She relies on case law to assert that the respondent who rejects reasonable settlement offers should expect to pay the costs of the resulting trial to the successful other party.
Analysis
[6] Ultimately, in my view, this costs decision involves a determination of both the reasonableness of the steps taken and the costs sought taking into account the principles of proportionality. I do find Ms. Hassan’s hourly rate to be appropriate. Given that Mr. Granger has made the hourly rate of counsel an issue, I must take note of the fact that although Mr. Granger’s experience is more than double that of Ms. Hassan, if his time as a judge is excluded, their experience levels are similar. As well, I take judicial notice that Mr. Granger, as a retired judge, has a substantial source of retirement pension income that no doubt allows him to charge a lower fee than otherwise.
[7] Considering all of the factors in r. 57 and including the offer of the applicant and the success of the applicant at trial, as well as the proportionality principle considering that this was a scheduled five-day trial that concluded in the full five days, I am unable to accept that in excess of $100,000 is an appropriate costs award. Both sides had experts and notwithstanding the time was longer for Mr. Martindale in court and in preparation, I cannot find, given the experience of both experts, that it would be reasonable to place a value on his evidence at a figure in excess of five times that of the respondent’s expert. Similarly, the fees sought by Ms. Hassan fail to reflect what was at stake and the income of the parties. Written submissions were required as the trial went to the very end of the fifth day set for this matter in front of an out-of-town judge. The applicant’s trial submissions as well as those on costs were, in my view, overly lengthy and unnecessarily extensive given the issues and the amount of evidence.
[8] Accordingly, for the reasons set out, I have concluded that a costs award to the applicant of $40,000 for fees and $7,500 for disbursements plus HST is appropriate in all of the circumstances, payable within 30 days.
Thomas J. Carey Justice
Released: May 7, 2020
COURT FILE NO.: (LONDON) F 196/15 DATE: 20200507 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Amneh Tawfic Abu-Saud Applicant – and – Azam Asaad Abu-Saud Respondent REASONS on costs Carey J.