Holmes v. Holmes, 2010 ONSC 2418

CITATION: Holmes v. Holmes, 2010 ONSC 2418

COURT FILE NO.: DC-09-152

DATE: 2010-04-23

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CAMILLE DOREEN HOLMES v. JAMES CHARLES HOLMES

BEFORE: CAVARZAN J.

COUNSEL: John Z. Olenski, for the Applicant (Respondent on Appeal)

Richard P. Startek, for the Respondent (Appellant on Appeal)

SUPPLEMENTARY REASONS (COSTS)

1On January 13, 2010, I released the attached endorsement stating the reasons for dismissing the respondent’s application for leave to appeal. Counsel for the parties were invited to exchange written submissions on the matter of costs of the application, if necessary, and to send them to me within 30 days.

2Counsel for the applicant (respondent on appeal) served his written submissions on opposing counsel on February 8, 2010, and sent them to the Court by facsimile transmission on the same day. To date, no responding submissions have been received.

3The bill of costs submitted on behalf of the successful party reflects the hours devoted to this matter by counsel of some 36 years’ experience at the bar, billing at the reasonable rate of $300.00 per hour.

4Rule 37.01 of the Rules of Civil Procedure outlines the factors to be taken into consideration by the court in exercising its discretion in awarding costs. The following observation by Henry J. in Apotex Inc. v. Egis Pharmaceuticals (1991), 4 O.R. (3d) 321 at 326 is still applicable:

...the judge in fixing costs of a proceeding is not assessing costs as if he were performing the functions of a master or officer to whom the court has referred costs to be assessed.

5Rule 57.01(1) provides that in exercising its discretion to award costs “the court may consider, in addition to the result in the proceeding”:

(0.6) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed.

6The costs claimed in this matter total $4,999.34 comprised of $4,350.00 fees, disbursements of $422.61 and applicable G.S.T. on fees and disbursements

7This was not a complex matter. In my view, the amount of costs that the unsuccessful party could reasonably expect to pay in the circumstances here is $3,500.00.

8It is ordered, accordingly, that the respondent (appellant on appeal) pay to the applicant (respondent on appeal) the sum of $3,500.00 inclusive of fees, disbursements and G.S.T. within 30 days.