Court File and Parties

COURT FILE NO.: FS-18-000576 DATE: 20210422 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SYLVIA WHITESIDE, Applicant AND: DEVIN GOVINDASAMY, Respondent

BEFORE: Justice Lorne Sossin

COUNSEL: Philip Viater and Lyna Perelman, Counsel, for the Applicant Frank Mendicino, Counsel, for the Respondent

COSTS ENDORSEMENT

OVERVIEW

[1] This trial concerned the resolution of various financial relationships between the applicant, Sylvia Whiteside, and the respondent, Devin Govindasamy.

[2] The trial decision was released on February 5, 2021 with reasons for judgment now reported at 2021 ONSC 789.

[3] Most of the trial was devoted to issues affecting the equalization of net family property between the parties, including several corporate entities.

[4] A separate, civil action was also consolidated with the application.

[5] The civil action was dismissed.

[6] On the financial matters, I ordered that Ms. Whiteside was entitled to an equalization payment in the amount of $1,803,824.61; and lump-sum spousal support payment in the amount of $750,000.00. Ms. Whiteside’s claim for child support was dismissed.

[7] While neither party received all the relief sought at trial, Ms. Whiteside was largely successful, particularly on the issues that took up the lion’s share of the trial.

[8] The reasons set out that if the parties could not agree on costs, submissions could be provided.

[9] Ms. Whiteside’s costs’ submissions were received on March 19, 2021.

[10] Ms. Whiteside is seeking $589,650.95 based on a full indemnity basis, inclusive of disbursements and HST.

[11] Mr. Govindasamy’s costs’ submissions were received on April 1, 2021.

[12] Mr. Govindasamy argues that Ms. Whiteside’s costs request is excessive. In particular, Mr. Govindasamy takes issue with the costs sought for Ms. Whiteside’s second counsel, Ms. Perelman, (a total of 890.90 hours) as disproportionate.

[13] Mr. Govindasamy submits that his trial costs, with one senior counsel, amounted to $214,404.22.

[14] Mr. Govindasamy also argues that the disbursements should be significantly reduced from $40,000.00 to $20,000.00, as costs of mediation are borne by the parties and not properly part of a costs order at trial, and the cost of a jointly retained expert should be borne by each of the parties.

[15] Rule 24 of the Family Law Rules, O. Reg. 114/99 starts with the presumption that a successful party is entitled to costs.

[16] Rule 24(11) of the Family Law Rules provides that, in exercising its discretion to award costs, the court must consider the following factors:

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party’s behaviour in the case;

(c) the lawyer’s rates;

(d) the time properly spent on the case;

(e) expenses properly paid or payable; and

(f) any other relevant matter.

[17] Costs rules advance three fundamental goals: (a) to indemnify successful litigants; (b) to encourage settlements; and (c) to discourage and sanction inappropriate behaviour by litigants. Proportionality and reasonableness are the “touchstone considerations” in a costs award in a Family Law context; Beaver v. Hill, 2018 ONCA 840 at para. 12.

[18] Both Ms. Whiteside and Mr. Govindasamy made offers to settle this dispute.

[19] Ms. Whiteside made offers to settle on September 25, 2017, prior to issuing the application, and prior to trial, on August 10, 2020.

[20] Mr. Govindasamy made an offer to settle on October 4, 2020.

[21] The result for Ms. Whiteside at trial is considerably in excess of what Mr. Govindasamy offered, and also somewhat more favourable than Ms. Whiteside’s two offers.

[22] The legal issues involved in the trial were not especially complex, though the factual environment and divergent narratives of the parties added degrees of difficulty to the trial process.

[23] In this relatively high-conflict environment, I find each party could have taken steps to resolve or narrow the issues in dispute, in order to avoid or significantly reduce the cost of the trial, though Mr. Govindasamy was more often responsible for missed opportunities to shorten and simplify the trial.

[24] In particular, Mr. Govindasamy’s problematic refusal to respond to pre-trial disclosure requests led to a more costly and complex trial.

[25] However, I made no finding that Mr. Govindasamy acted in bad faith.

[26] With respect to Mr. Govindasamy’s argument that Ms. Perelman’s participation in the trial was excessive, I find that Ms. Perelman’s involvement in the trial was justified, particularly as a result of her extensive involvement with the pre-trial phase of the litigation.

[27] However, the participation of both Mr. Viater and Ms. Perelman throughout the trial led to duplication which has not been explained.

[28] In her costs’ submissions, Ms. Whiteside claimed, “At trial, however, two lawyers’ full-time attention were required at all times.”

[29] Where time for multiple counsel at trial is claimed, however, a more precise account of the actions and time of each counsel is necessary in order to justify the cost of multiple counsel at trial.

[30] In Diamond v. Berman, 2020 ONSC 4301, McGee J. considered the issue of costs recovery for multiple counsel at trial:

[67] As a general principle, I am of the view that the costs of multiple counsel cannot be recovered in costs. The recovery of fees for multiple counsel does not create an exception to the ordering of costs in an amount that would have been reasonably expected to have been paid by the unsuccessful party. One cannot shift to the other party the financial consequences of engaging multiple counsels any more than the consequences of engaging counsel with a higher hourly rate than is reasonable in the circumstances. To allow otherwise would be to permit litigants to financially intimidate their opponent and to potentially discourage meritorious claims.

[68] There may be exceptions to such a general principle. Each side may have engaged a litigation team so the costs of multiple counsel would be well within the contemplation of what the unsuccessful party would pay in costs. There may be complexity, language or disability barriers that make the retainer of multiple counsels reasonable and proportionate in relation to the issues.

[69] In this trial, each of the applicant’s three counsels took responsibility for certain tasks, while working as a team. Their efforts were most appreciated by the court, particularly the calming energy that each brought to assisting a highly distressed self-represented litigant. They could not have been more helpful or hard working. I could easily observe Ms. Diamond’s increased comfort level with a team approach. But should the expense of that approach be borne by Mr. Berman within an award of costs?

[70] I have reviewed Ms. Diamond’s Bill of Costs in some detail, including the courtesy discounts. After considering all the factors set out in Rule 24(12), I can ultimately find no basis in this proceeding to depart from the general principle that the costs of multiple counsel cannot be recovered. Each of the three counsels were capable of conducting a trial of this complexity on his or her own. The division of tasks spread out the workload and allowed all three counsels to gain valuable experience, but those benefits in my view do not shift the associated costs to the unsuccessful party.

[31] In Iacobelli v. Iacobelli, 2020 ONSC 6128, at paras. 45-52, McDermot J. rejected a costs’ claim for two counsel in a family law trial, even while accepting the case was factually complicated.

[32] In this case, I find the factual complexity of the evidence justified the involvement of two counsel to a limited extent. However, absent an explanation of the specific tasks for which each counsel was responsible, a reduction in the overall costs’ award to reflect duplication is warranted.

[33] Further, I accept Mr. Govindasamy’s concern with the disbursements claimed with respect to mediation costs and the costs of the jointly retained expert.

[34] Therefore, I find Ms. Whiteside’s entitlement to costs must be discounted to reflect the duplication of counsel roles at trial, a reduced amount for disbursements, as well as the importance of proportionality and reasonableness generally.

[35] Bearing these considerations in mind, I find costs in favour of Ms. Whiteside in the amount of $300,000.00, all inclusive, to be fair and reasonable.

[36] Therefore, Mr. Govindasamy will pay Ms. Whiteside costs in the amount of $300,000.00, all inclusive, within 30 days of this endorsement.

Sossin J.

Released: April 22, 2021