COURT FILE NO.: FC-17-2220
DATE: 20210323
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANNE MARIE CECILE CLAIRE MURRAY
Applicant
– and –
SUHAIL MASOOD CHOUDHARY
Respondent
Thomas Hunter, for the Applicant
Self-represented
HEARD: By written submissions
decision on costs
Audet J.
[1] On February 4, 2021, I released my Decision following the uncontested trial held in this matter. My Reasons for Decision are set out in Murray v. Choudhary, 2021 ONSC 883. Prior to the trial being held, I had struck the Respondent’s Answer and provided him with limited participation rights in the trial, if he satisfied all outstanding cost awards made against him in this proceeding. The reasons supporting my decision to strike the Respondent’s Answer can be found in Murray v. Choudhary, 2021 ONSC 530, which was released on January 21, 2021.
[2] Following receipt of my trial decision, the Applicant filed written submissions seeking full indemnity costs in the amount of $121,285.48 for the trial as well as for various steps in the case for which costs had not already been decided or were reserved to the trial judge. In summary, it is the Applicant’s position that she was entirely successful at each step for which she now seeks costs, especially given the two Offers to Settle that she made on May 10, 2019 and September 15, 2020. She submits that, while she acted in a reasonable manner throughout this litigation, the Respondent did not, and his conduct has met the high threshold of bad faith. More specifically, and given the existence of a Pre-Nuptial Agreement, had the Respondent not been driven by vindictiveness and obsessed with gaining revenge, the matter would have been settled by agreement. Alternatively, if a trial became necessary, it would have been focussed and of short duration.
[3] I am in complete agreement with the Applicant on all of these points. The Applicant was successful on all the claims that she advanced at trial. On that basis, she is presumably entitled to her costs on a partial indemnity basis.
[4] The two Offers to Settle made by the Applicant on May 10, 2019 and on September 15, 2020, if accepted by the Respondent, would have been more beneficial to him than the outcome he achieved at trial. Those Offers to Settle met all of the pre-conditions set out in sub-rule 18(14) of the Family Law Rules, O. Reg. 114/99, and on that basis, lead to a finding that the Applicant is entitled to her full recovery costs as of the date of her first offer.
[5] In addition to all of the above, a review of my detailed Decisions of January 21, 2021 and February 4, 2021, coupled with the many interim decisions rendered by the court in the context of this lengthy and protracted proceeding, amply supports a finding that the Respondent’s conduct throughout this proceeding was unreasonable, and that he behaved in bad faith. I find as a fact, as I found in my prior decisions, that the Respondent’s litigation conduct from the very beginning was motivated by the intent to inflict financial and emotional harm to the Applicant, which is a pattern of behaviour on his part that unfortunately permeated the parties’ entire relationship, and which held true to the Respondent’s stated intent to “financially ruin the Applicant if she ever tried to divorce him”.
[6] For all these reasons, I find that the Applicant is entitled to her full indemnity costs for all steps taken in this case and for which costs have not previously been adjudicated. More specifically, costs are hereby awarded for the following steps in the case:
all work related to the preparation of the two Offers to Settle made by the Applicant to the Respondent, including communications with the Respondent following his receipt of those offers;
the Settlement Conference held on August 19, 2019 and court hearing of October 23, 2019;
the Trial Management Conference held on November 1, 2019;
the second Trial Management Conference held on January 4, 2021;
the Motion to strike the Respondent’s pleadings heard before me on January 19, 2021;
the uncontested trial of January 25, 2021.
[7] Due to the Respondent’s failure to file documents or any relevant disclosure as mandated by the Rules and existing court orders, coupled with the Respondent’s lack of preparation and his many demands and unreasonable positions, all of the above steps in the case (with the exception of the uncontested trial) resulted in significantly higher legal costs for the Applicant, not to mention a complete waste of the Court’s and the Applicant’s time and resources.
[8] As one example of the Respondent’s behaviour which significantly increased the costs of this proceeding, the Respondent chose to serve the Applicant, for the first time in almost four years of litigation and virtually on the eve of trial, with a total of 465 documents, contained in several emails without any attempt to list them or organize them by date or by relevance to a particular topic. As it turned out, most of these documents were completely irrelevant to the issues in dispute. Nonetheless, the Applicant and her counsel were required to spend hours sorting through this material as part of their due diligence, days before trial. This is only one of multiple examples of how the Respondent’s unreasonable litigation conduct caused the Applicant to incur significant costs for absolutely no reason.
[9] The costs incurred by the Applicant for all the above steps total $121,285.48, inclusive of HST and disbursements. Counsel for the Applicant was called to the Bar in 1977 and charged an hourly rate of $295, which is more than reasonable given his level of experience. A more junior lawyer also assisted on the file at a rate of $175, which is equally reasonable. I do not intend to go through a detailed analysis of the fees charged by the Applicant’s counsel for each step in the case. Suffice it to say that I have reviewed his Bill of Costs (he provided an individual Bill of Cost for each of those steps), and I find them reasonable considering all of the circumstances of this case. The Applicant’s fees include experts’ costs incurred by her to obtain a Labour Market Analysis and an Investigation Report to defeat the Respondent’s claim that he was unable to work due to health issues and/or unable to find employment, and upon which his claim for spousal support was based.
[10] As a result, the Applicant is granted her costs for the steps detailed above in the amount of $121,285.48, which represents her full indemnity costs inclusive of HST and disbursements, payable by the Respondent forthwith.
Madam Justice Julie Audet
Released: March 23, 2021
COURT FILE NO.: FC-17-2220
DATE: 20210323
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANNE MARIE CECILE CLAIRE MURRAY
Applicant
– and –
SUHAIL MASOOD CHOUDHARY
Respondent
decision on costs
Audet J.
Released: March 23, 2021