Superior Court of Justice - Ontario

Court File No.: FS-18-40739 Date: 2021-08-24

Re: Peter Nabil Iskander, Applicant And: Mary Elias, Respondent

Before: Chozik J.

Counsel: Lorna M Yates, Counsel for the Applicant Mina Ghabryal, Counsel for the Respondent

COSTS ENDORSEMENT

[1] On May 14, 2021 I dismissed the Respondent’s motion for financial disclosure. I allowed, in part, the Applicant’s cross-motion for financial disclosure. I concluded that the Respondent’s request for the disclosure was overbroad and disproportionate. I also found that the Applicant had provided the relevant documents and authorizations prior to the hearing of the motions. With respect to the Applicant’s cross-motion, I concluded that the Applicant’s request was reasonable: it was for basic financial disclosure, such as income tax returns and Notices of Assessment, which the Respondent had an obligation to produce.

[2] I encouraged the parties to agree upon appropriate costs for these motions. If they were unable to agree, I invited the parties to make brief written submissions. I have received and reviewed the parties’ detailed written costs submissions including reply, and their respective bills of costs.

Positions of the Parties:

[3] The Applicant seeks full recovery of his costs in the amount of $16,608.55, which is 75 per cent of the amount set out in his Bill of Costs, payable at a rate of $1,000 per month until paid. He submits that he is entitled to full recovery of his costs because:

a. He achieved substantial success on these motions;

b. He behaved reasonably throughout;

c. The Respondent behaved unreasonably;

d. The issues on the motions were important to the parties although not complex or difficult.

[4] In response, the Respondent claims that she is entitled to full recovery of her costs in the amount of $34,942.42 or a set off against the Applicant’s costs. The Respondent argues that the Applicant was dishonest and that his disclosure was not complete until the motion was argued. She argues that further disclosure, such as the Applicant’s complete medical records, is still required – she maintains this position in her costs submissions despite my clear finding to the contrary. She argues that the Applicant’s conduct was unreasonable because he changed representation 13 times and relies on a finding by another judge on a previous occasion that he “plays games”.

Analysis:

[5] Under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, the court has a broad discretion in ordering costs and in determining quantum. Discretion as to costs is always guided by reasonableness and proportionality. (Mattina v. Mattina, 2018 ONCA 395 at para. 12) Costs awards should reflect what the court views as a fair and reasonable amount to be paid by an unsuccessful party.

[6] Modern costs rules are designed to foster three purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants (Serra v. Serra 2009 ONCA 105, [2009] O.J. No. 432 (Ont. C.A.), at para. 8). Proportionality and reasonableness are the cornerstone considerations to be applied (Beaver v. Hill, 2018 ONCA 840 at para. 4, 12 and 19; Berta v. Berta, 2015 ONCA 918; Frick v. Frick, 2016 ONCA 799).

[7] Rule 24 of the Family Law Rules, O. Reg. 114/99, sets out the factors to be considered in awarding costs. The importance and complexity of the proceedings, as well as each party’s behaviour, the time spent and any written offers to settle must be considered. Under r.24(12) the court is required to look at the reasonableness or unreasonableness of each party’s conduct during the course of the dispute. Rule 24(5) sets out the factors against which reasonableness of the conduct is to be assessed.

[8] Successful parties are presumed to be entitled to costs unless there is a good reason to rebut the presumption, such as bad behaviour in the context of the litigation. A “successful party” does not necessarily mean the party who won the issues. It can mean the party who made a favourable offer that would have eliminated the need for extended litigation. Under r.18(14), a party who makes a favourable offer may be entitled to costs on a “full recovery” basis from the date of that offer.

[9] In this case, the Applicant was clearly the successful party. He is presumptively entitled to costs. In the absence of any reason to disentitle the Applicant to his costs, the only issue is what a fair and reasonable quantum is in the circumstances.

[10] In Beaver v. Hill, 2018 ONCA 840 the Ontario Court of Appeal clarified that there is no presumption in favour of substantial or full indemnity costs. Full recovery costs are justified under r.18(4) and r.24(8). While the Applicant uses the terms “full recovery” in his submissions, he asks for 75 per cent of his actual costs.

[11] No offers to settle were served on these motions.

[12] In my view, the Applicant did not act unreasonably in response to the Respondent’s motion. He acknowledged his disclosure obligations and met them. He produced what was requested prior to the hearing of the motion, and where he was unable to produce the sought documents, he provided authorizations for the Respondent to obtain them. He did not parse the requests, despite their overbreadth. As I set out in my Endorsement, the Applicant’s lawyer, Ms. Yates, organized the voluminous disclosure into a readily accessible format. Her diligence produced a collection of materials that was of tremendous assistance for this court and should provide a solid jumping off point for the parties in their on-going litigation.

[13] On the other hand, having considered the matter carefully, I find that the Respondent’s conduct was not reasonable. Her request for disclosure was overreaching and overbroad. The multiple Notices of Motion and the voluminous materials filed in support of them lacked focus and clarity. The disclosure request was akin to a ‘fishing expedition’. Serious but unnecessary allegations about the Applicant’s conduct were peppered throughout, complicating what should have been straight forward request for financial disclosure. The Respondent did not produce a status chart, which would have been helpful to make sense of the materials and save time for both counsel and the court.

[14] I am particularly concerned that the Respondent’s lawyer chose not to look at the financial disclosure that Ms. Yates prepared prior to the hearing of the motion. Instead, he argued the motions as if nothing had been produced in response to the motion. Had he reviewed the material provided I would have expected that the motion could have been avoided or materially shortened.

[15] The Respondent also did not respond to the Applicant’s cross-motion at all.

[16] The Respondent’s unreasonable conduct continues in her costs submissions. Though she was unsuccessful on her motion, she somewhat brazenly claims full recovery of her costs. No basis for entitlement is apparent from the submissions. In her costs submissions, she seeks to relitigate some of the issues already decided against her on the motion. For example, she maintains that the Applicant’s medical records must be disclosed although I unambiguously found that her argument in this regard on the motion was without merit.

[17] The Respondent also continues in her pattern of unnecessary attacks on the Applicant’s conduct: she claims that he misrepresented the facts in this case, acted in bad faith and intentionally delayed the legal process. She relies on the fact that he changed counsel to accuse him of intentionally delaying the proceedings. At the same time, as of July 15, 2021 she had not made the basic financial disclosure I ordered her to make in the May 14, 2021 Endorsement within 60 days.

[18] The Applicant is clearly entitled to his costs on these motions. The only aspect of his conduct on these motions which raises some concern is that he did not retain Ms. Yates until the last minute. Despite this, Ms. Yates was able to organize the materials and proceed with the motions effectively. Given the dogged manner in which the Respondent has pursued this matter, I am not convinced that acting any earlier would have deterred her or otherwise have abbreviated this motion.

Quantum of Costs:

[19] In terms of quantum, the Applicant’s Bill of Costs reflects total costs of $22,144.75. He seeks recovery in the amount of $16,608.55, which is 75 per cent of the full amount. In my view, this is a reasonable and proportionate amount. It is half of what the Respondent claims as her costs.

[20] In the circumstances, I am satisfied that the fees charged were reasonable and reflect the importance of the issues and the timelines involved.

[21] The amount of preparation engaged in by the Applicant’s lawyer in this particular case was justified. The Applicant was entitled to incur such legal expenses as were commensurate with the significance of the issues and the accusations levied at him.

[22] The courts are not to second guess counsel after the fact considering tactical and evidentiary decisions. Services should be viewed from the perspective of what was apparent to counsel before the trial or the motion: Apotex Inc. v. Egis Pharmaceuticals, 1991 CanLII 2729 (Ont. S.C.), pg. 10. Detailed documentation as to the various steps taken to prepare this matter has been provided. The determination of costs is not to be done using a line by line analysis of the time spent.

[23] Having regard to the complexities and significance of the issues, the conduct of the parties, the various steps leading up to the motions and the requirement to award costs that are fair, reasonable and proportionate, I am of the view that the Applicant is entitled to costs in the amount of $16,608.55.

Conclusion:

[24] In conclusion, the Applicant as the successful party is entitled to his costs. Given all the circumstances, I find that he is entitled to costs of $16,608.55. The Respondent is ordered to pay this amount to the Applicant at a rate of $1,000 per month commencing September 1, 2021 until the full amount is paid.

Next Steps in the Litigation:

[25] In light of the Family Law Initiative for Central West Region, the parties are ordered to schedule within the next 7 days a settlement conference through the trial coordinator’s office. The settlement conference is to take place not later than December 31, 2021.

[26] No further motions shall be brought by either party without leave of this court.

(“Original signed by”)

Chozik J.

Date: August 24, 2020