Islam v. Rahman, 2007 ONCA 622

ENDORSEMENT

1We see no basis for interfering with the trial judge's decision to award costs on a full recovery basis. In making this award, in addition to the respondent's offer to settle, the trial judge relied on her findings relating to the appellant's serious misconduct in the litigation. In these circumstances, the trial judge was entitled to order costs on a full recovery basis in relation to the entire case, which culminated in a highly contested 11-day trial.

2However, we accept the appellant's submission that the trial judge erred in failing to exclude from the award of costs amounts claimed for steps taken in the case where no order was made as to costs or where there was silence on the issue. Rule 24(10) of the Family Law Rules provides that the judge who deals with a step in a case shall decide who, if anyone, is entitled to costs. If a party who has served an offer to settle the case as a whole wishes that fact taken into consideration in relation to a particular step, it is incumbent on that party to raise that issue with the judge who deals with that step. In this case, various steps were taken (e.g. motions, conferences) in relation to which either there was an endorsement that there be no order as to costs or the issue of costs was not addressed. In the absence of a specific order for costs in favour of the respondent, the trial judge should have disallowed costs claimed by the respondent in relation to such steps.

3In addition, in our view, the trial judge should have deducted some amount from the amount claimed for costs because of the duplication in work arising from the respondent changing lawyers.

4In order to take account of the foregoing matters, we would reduce the amount awarded by the trial judge to $153,000 on a full recovery basis, but add back in the sum of $2,000 erroneously deducted by the trial judge for an award of costs to the appellant in the cause.

5The appellant also complains that, in awarding the full amount of costs requested by the respondent, the trial judge failed to conduct a critical analysis of the respondent's claim and failed to make an award in line with the reasonable expectations of the losing party. On the facts of this case and, in particular, having regard to the evidence indicating that the appellant was charged an amount by his lawyer similar to the costs claimed by the respondent, we are not persuaded that any benefit would be gained from sending this matter for an assessment and thereby adding further to the heavy burden of costs already incurred.

6Accordingly, the appeal is allowed in part and the amount for costs awarded by the trial judge is reduced to $155,000.00.

7Costs of the appeal and of the leave motion are to the respondent in the amount of $11,000.00.