Court File and Parties

CITATION: Houston v. Houston, 2010 ONSC 6247 COURT FILE NO.: DC-10-0000195-00 DATE: 2010-11-12

SUPERIOR COURT OF JUSTICE – ONTARIO (DIVISIONAL COURT)

RE: Lori Ann Houston, Applicant (Appellant in Appeal) AND: Shawn Francis Houston, Respondent

BEFORE: The Hon. Madam Justice E.A. Quinlan

COUNSEL: J. Skapinker, Counsel for the Appellant S.M. MacCormac, Counsel for the Respondent

HEARD: By Written Submissions

COSTS ENDORSEMENT

OVERVIEW

[1] The applicant (appellant in appeal) sought an interim preservation order in relation to the matrimonial home pending her appeal of the Judgment of Timms J. dated May 26, 2010. The applicant argued that the trial judge made palpable errors, She sought what was, effectively, a continuation of the 2009 preservation order that had been rescinded at the conclusion of the trial by Timms J.

[2] I was not satisfied that an interim preservation order was necessary or, in the words of s.134(2) of the Courts of Justice Act,[^1] “just to prevent prejudice to a party pending the appeal”. The applicant’s motion was dismissed.

[3] The respondent seeks costs on a full indemnity basis in the amount of $10,422.72, inclusive of fees, disbursements and HST. The fees represent attendance on the motion before me together with an attendance on an earlier date for a contested adjournment.

[4] By Offer to Settle, the respondent offered to settle the motion on the basis that the motion be dismissed with no costs payable by either party for both the motion returnable before me and the earlier contested adjournment. I find that the respondent’s offer to settle is, in fact, more favourable than my judgment: no costs would be payable by the applicant to the respondent.

[5] The applicant made an offer to settle that was significantly less favourable than my ruling on the motion.

ANALYSIS

[6] Section 131 of the Courts of Justice Act provides considerable judicial discretion on the issue of fixing costs. The principles set out in rule 57.01 of the Rules of Civil Procedure were highlighted in the Court of Appeal decision of Boucher v. Public Accountants Council for the Province of Ontario.[^2]

[7] In Serra v. Serra,[^3] Epstein J.A. provided these overarching comments with respect to costs rules:

Modern costs rules are designed to foster three fundamental purposes:

(i) to partially indemnify successful litigants for the cost of litigation;

(ii) to encourage settlement; and

(iii) to discourage and sanction inappropriate behaviour by litigants.

[8] The court’s role in assessing costs is not necessarily to reimburse the litigant for every dollar spent on legal fees. There is a component of reasonableness when costs awards are considered.[^4]

[9] The issue in this case was important as the applicant was seeking to reinstate a preservation order against the respondent’s property pending the hearing of the applicant’s appeal.

[10] I accept that the applicant’s conduct served to increase the respondent’s costs of this motion. She contested the respondent’s request for a short adjournment of the original motion date to allow time for the respondent to file his materials. There had initially been consent to the adjournment in writing by applicant’s counsel. Later that evening the consent was, if not rescinded, at least made conditional on an interim-interim preservation order pending the hearing of the motion.

[11] This required both parties to attend on the original return date of the motion. The interim-interim terms were not granted by the court.

[12] The respondent was successful not only on the motion before me, but also on the motion regarding the interim-interim preservation order.

[13] I have reviewed the costs submitted by the respondent. I agree that 21 hours for what was mainly research and drafting of the materials is excessive. I have considered the level of seniority of the respondent’s counsel. I am satisfied that the hourly rate and hours spent, subject to the time spent for research and drafting, are reasonable under the circumstances.

[14] The time for attendances at court on the motion and travel time are reasonable. I also find that it is appropriate to award costs for the attendance at the initial return of the motion.

[15] I do not find that it is appropriate to award costs on a full indemnity basis, however, nor is it appropriate to award costs on a partial indemnity basis. I find that, given the offer, the result, and the needless attendance at the first return of the motion, substantial indemnity costs should be awarded.

[16] I see no reason to depart from the usual rule that costs are to be paid within 30 days of a motion. I do not accept the position of the applicant that costs should be delayed until after the appeal judgment has been rendered.

CONCLUSION

[17] I order that the applicant pay costs to the respondent in the amount of $6,500, inclusive of disbursements and HST, within 30 days.

QUINLAN J.

Date: November 12, 2010

[^1]: R.S.O. 1990, c.C.43. [^2]: (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291. [^3]: 2009 ONCA 395, [2009] O.J. No. 1905 at para. 8. [^4]: Benetau v. Young, 2010 ONSC 33 at para. 13.