Court File and Parties

Court File Nos.: 838/20 and CV-20-74557 Date: 2023-09-08 Superior Court of Justice - Ontario

Re: Rana Alsous, Applicant And: Elias Shahin, Respondent

And Re: Rana Alsous, Plaintiff And: Bishara Hadweh and Duaa Hadweh, Defendants

Before: Justice D.A. Broad

Counsel: Daniel Mauer, for the Applicant/Plaintiff Rana Alsous Kenneth Wise, for Elias Shahin, Respondent and Bishara Hadweh and Duaa Hadweh, Defendants

Costs Endorsement

[1] The parties have been unable to resolve the question of costs of the motion to consolidate the family and civil proceedings brought by Elias Shahin and Bishara Hadweh and Duaa Hadweh and each side has delivered written submissions on costs.

[2] The applicant in the family proceeding and defendant in the civil proceeding (the responding party to the motion) Rana Alsous (the "responding party") seeks partial indemnity costs in the total sum of $12,770.74, comprised of fees in the sum of $11,247.28, HST on fees in the sum of $1,462.15 disbursements in the sum of $54.26 and HST on taxable disbursements in the sum of $7.05. It is noted that of the partial indemnity fees claimed, $1,085.48 relate to the issue of costs including preparation of costs submissions and a Costs Outline.

[3] Although the respondent in the family proceeding Elias Shahin and the defendants in the civil proceeding Bishara Hadweh and Duaa Hadweh (the moving parties on the motion) (the "moving parties") acknowledge that Rana was the successful party on the motion, they say that they should pay no costs for the motion given the responding party's failure to pay an outstanding costs order against her on November 17, 2021. Alternatively, they say that the responding party's Costs Outline is not reasonable, proportionate or within the reasonable expectations of an unsuccessful parties. In the further alternative they say that if the court does award costs, no more than $1,500 would be proportionate and within the reasonable expectations of the unsuccessful parties.

[4] The moving parties point to their own Costs Outline which indicates fees of $2,000, based on 10 hours of counsel time, HST thereon in the sum of $260 for a total of $2,260 as indicative of their reasonable expectations.

[5] Moreover, the moving parties seek to characterize the motion as lacking complexity, suggesting that the quantum of costs sought by the responding party is disproportionate.

[6] The moving parties state that, although Duaa and Bishara were technically moving parties and were supportive of the motion, their involvement in the motion and in the proceeding more generally were marginal. They say that they have been struggling financially.

[7] I am not satisfied that the earlier costs award is a relevant consideration in making a costs determination in relation to the motion to consolidate. The costs award of November 17, 2021 in favour of Elias Shahin was ordered by Lafreniere, J. on July 14, 2023 to be paid from the proceeds of the "Magnificent Way" property held in trust, and payment of it is therefore secured and to be considered pending. Moreover, the earlier costs award is only in favour of Elias Shahin, whereas all three moving parties would have responsibility to pay costs on the motion to consolidate, thereby removing the element of reciprocity.

[8] I am also not satisfied that Duaa and Bishara's suggested "minimal involvement" in the motion and their financial struggles serve to insulate them from responsibility for costs in reference to the three moving parties' unsuccessful motion.

[9] Although the moving parties provided a Costs Outline, I am not satisfied that it is of significant assistance in assessing their reasonable expectations respecting the responding party's costs, as it lists only three attendances of counsel, namely drafting the notice of motion, drafting the factum and attendance at the hearing. Unlike the responding party's costs outline, counsel's communications with their client and with opposing counsel, review of the opposing party's motion material, preparation for argument and preparation of costs submissions were not referenced.

[10] The moving parties' Costs Outline references a total of eight hours for document preparation (drafting the notice of motions and affidavits 4 hours and drafting the factum 4 hours) whereas the responding party references 33.4 hours in counsel time and 5.2 hours in clerk time for document preparation.

[11] Although the moving parties' Costs Outline is not determinative of their reasonable expectations respecting costs, I do find that the amount of time disclosed in the responding party's Costs Outline for client and opposing counsel communications and document preparation is not proportionate or reasonable.

[12] The jurisprudence directs that a costs award must represent a fair and reasonable amount that should be paid, rather than an exact measure of the actual costs, must be consistent with what the unsuccessful party might reasonably have expected to have to pay, and must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created (see Mason v. Smissen, [2013] O.J. No. 4229 (Ont. S.C.J.) at paras. 5 and 6 and the cases referred to therein).

[13] Moreover, the Court of Appeal in Beaver v Hill, 2018 ONCA 840 at paras. 12-13, emphasized that proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs in family proceedings.

[14] In applying these principles, I find that an award of costs to the responding party of $8,500 inclusive of fees, disbursements and HST would be considered proportionate and reasonable.

Disposition

[15] It is ordered that the moving parties Elias Shahin, Bishara Hadweh and Duaa Hadweh pay to the responding party Rana Alsous costs of the motion fixed in the sum of $8,500 within 30 days hereof.

D.A. Broad, J.

Date: September 08, 2023