Court File and Parties
COURT FILE NO.: CV-21-00668552-00ES
DATE: 2023-12-20
ONTARIO SUPERIOR COURT OF JUSTICE
IN THE GUARDIANSHIP OF PERSON AND OR PROPERTY OF BHUPINDER KUMAR RAI AND NEERA RAI
Re:
LALIT RAI, Applicant
-and-
ANU BHALLA, BHUPINDER KUMAR RAI, NEERA RAI, and THE PUBLIC GUARDIAN AND TRUSTEE, Respondents
BEFORE: FL Myers J
COUNSEL: Robert McGlashan and Andrew Rance, for the applicant Zaheed Moral and Sajid Hossain, for Neera Rai Tracey Rynard, for Anu Bhalla
READ: December 19, 2023
ENDORSEMENT
[1] In paragraph 63 of my endorsement dated November 24, 2023, reported at 2023 ONSC 6680, I invited costs submissions as follows:
If necessary, the respondents may deliver costs submissions by December 4, 2023. The applicant may then deliver costs submissions by December 18, 2023. Costs submissions shall be no longer than three pages, double-spaced, with normal margins, and with a minimum 12-point font. Every party who delivers costs submissions shall also deliver a Costs Outline. Parties pay also deliver copies of any offers to settle on which they rely. Submissions and related material should be sent to me through my Judicial Assistant at therese.navrotski@ontario.ca and uploaded to Caselines.
[2] On December 4, 2023, each of the two main respondents sent me three pages of costs submissions supported by their respective costs outline/bill of costs.
[3] Yesterday, I received from counsel for the applicant ten pages of submissions on costs plus a new affidavit of the applicant. It is only two pages long. But it purports to include audio recordings of conversations with certified transcriptions totalling approximately 30 pages.
[4] Anu Bhalla and Neera Rai both seek costs from the applicant. Their full indemnity costs are respectively $147,683 and $148,595.
[5] The applicant seeks costs from his sister Anu Bhalla. His full costs were $144,089.42.
[6] Each party incurred nearly the same costs.
[7] As 2023 draws to a close, I bestow the Oxymoron of the Year Award upon counsel to the applicant whose “Costs Outline” was a mere 65 pages long. I should give Honourable Mention to counsel for Anu Bhalla whose “Costs Outline” was a svelte 32 pages.
[8] Counsel for Neera Rai did not submit a brief costs outline. Rather, they provided a full bill of costs. Yet it was only four pages long. Thank you.
[9] I was going to send the applicant’s material back unread in view of his ignoring the process format that I directed. But given that the legal fees incurred by the parties were nearly identical, the most difficult part of the costs process - determining proportionality - was greatly simplified. It is fairly straightforward to find that a party ought reasonably to have anticipated costs being incurred by the parties opposite at the level that his or her own counsel billed. There are no surprises there that might negatively impact access to justice.
[10] The only real issues therefore were whether costs ought to follow the cause; whether anyone ought to be entitled to costs on an enhanced basis; and whether any costs claimed were inadmissible or unreasonable.
[11] Once proportionality was clear and provided me with a range of reasonableness, it seemed to me that I could resolve the other matters from the materials without needing to send the parties back to incur yet more costs writing shorter documents.
[12] The applicant’s mother submits that the applicant impugned her capacity with ever-increasing demands for production of medical files and an unwillingness to accept consistent opinions that she had capacity. After forcing the parties to wade through thousands of documents spanning more than a decade, he ended up waiving all of his claims on the eve of the hearing while still fishing for more documents.
[13] The applicant’s sister Anu Bhalla submits that the litigation was an abuse. These guardianship proceedings were supposed to focus on the best interests of the parents. Instead, the applicant repeatedly aimed at profiting himself. He changed course multiple times including delivering two late factums right before the hearing that changed the relief substantially. Like their mother, she points to the three positive capacity assessments that the applicant refused to accept. She asks me to find that the applicant was unreasonably obsessed with his cause and that he is likely to pursue vexatious proceedings indefinitely unless stopped by costs. See Bishop v Bishop, 2011 ONCA 211.
[14] The applicant submits that he was altruistically driven to protect his vulnerable parents who are under the coercive control of his sister and her lies. His effort to defend himself against the sister’s and mother’s claims that he misappropriated the parents’ funds was but a “secondary goal.”
[15] He submits that the respondents never substantiated the allegation that he had not accounted for $640,000. He submits they delayed or refused disclosure and ignored settlement offers. He says that his sister interfered with the mother’s capacity testing and improperly directed the mother’s lawyers.
[16] Interestingly, the settlement offers submitted by the applicant were exchanged only days before (and in one case after) the hearing before me. As the vast bulk of all costs had been incurred by then, they are of no consequence on the costs front. In any event, he did not beat any of his offers.
[17] In his new affidavit, the applicant swears:
Upon reviewing the respondents' cost submissions, I find myself astounded by the exorbitant figures they have asserted. The claimed amount appears extremely disproportionate and raises serious concerns.
In support of contesting these inflated costs, I possess a recorded conversation with my mother affirming that she has had no interactions with their legal representatives from September 2021 to July 2022. In other words, this discrepancy emphasizes that the time and fees attributed by OWS in their cost submissions are unjustifiably high and do not align with the actual circumstances. Copies of the transcript of this recording are attached as Exhibit "A".
[18] I am sorry that the applicant is astounded that the respondents incurred the same costs as he incurred. They reviewed the same documents and attended the same hearings and examinations.
[19] The bill of costs delivered on behalf of the mother does not provide dates for services in the September 2021 to July 2022 period. But the events listed in the bill of costs are all assessable expenses many of which would not need active communication with the mother to have been incurred. The allegation of dishonesty based on a surreptitious recording rings rather hollow.
[20] I see nothing unreasonable in the costs outlines and bill of costs filed by all three parties. This was a fact-based case with very substantial productions and a moving target of relief being sought. It was hard-fought and emotional.
[21] The bottom line is that when the applicant came to prepare for the hearing, he realized he could not undermine the recent court-ordered capacity assessment of his mother. The allegation that she might have been coached by a grandchild was unprovable and would not affect a professional assessment in any event.
[22] As soon as he moved off attacking the mother’s capacity, the applicant’s case fell apart. The relief he sought at the hearing was no longer open to him even if it had been pleaded.
[23] The applicant chose his forum. He made allegations that he was unable to prove. The claim was dismissed. I made no finding one way or the other on the allegation around the $640,000 that so motivated the applicant. His desire for vindication was not properly an issue in a guardianship except as a defence against him being recognized as the putative guardian. But the applicant never got that far as he could not undermine his mother’s capacity to show that she or his father needed a guardian.
[24] In Ontario, the normative approach is that costs follow the event. As such, the respondents are presumptively entitled to partial indemnity for their costs from the applicant. The applicant’s allegations of procedural impropriety against the respondents are not sufficient to reverse the costs. They may reflect his frustration with the respondents’ positions and the process more generally. But his procedural complaints through his long litany of chronology were all matters that ought to have been and were to some extent dealt with throughout the process. That they did not go his way is not a basis to deprive the successful parties of their costs.
[25] The respondents gave as good as they got. They took aggressive positions and knew how to press the applicant’s buttons no doubt. But the bottom line was that this never ought to have been a guardianship application and the respondents succeeded on that front despite all the distractions. In my view they are entitled to be compensated for their costs on a partial indemnity basis and no more.
[26] Starting at $145,000, the rule of thumb is that partial indemnity is about 60%. I am ignoring the desirability to treat disbursements separately as they are very modest in this case. With HST added, I order the applicant to pay the costs of his sister and mother each respectively in the amount of $100,000 all-inclusive.
FL Myers J
Date: December 20, 2023