Laurence v Bridge, 2017 ONSC 1655
CITATION: Laurence v Bridge, 2017 ONSC 1655
DIVISIONAL COURT FILE NO.: FC-14-787
DATE: 2017/03/14
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LABROSSE J.
BETWEEN:
KAREN BRIDGE
Applicant/Responding Party
– and –
RICHARD LAURENCE
Respondent/Moving Party
Andrea R. Camacho, for the Applicant/Responding Party
Edward C. Conway, for the Respondent/Moving Party
HEARD: In writing
COSTS ENDORSEMENT
LABROSSE, J.
[1] This was a Motion for Leave to Appeal to the Divisional Court from the order of the Honourable Justice J. Mackinnon, dated August 10, 2016. The motion was brought pursuant to Rule 38(1) of the Family Law Rules, O. Reg. 114/99 (the “FLRs”) and Rule 62.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In my Endorsement dated November 23, 2016, the Motion for Leave to Appeal was dismissed. I indicated that if the parties could not resolve the issue of costs, they could provide written submissions. I have now considered these submissions prior to making my decision on costs.
[2] The Applicant was the successful party on the Motion for Leave to Appeal and as such, there is a presumption that she is entitled to an award of costs pursuant to Rule 24 of the FLRs, subject to possible offers made by the parties and the other criteria discussed below.
Position of the Parties
[3] The Applicant claims that she incurred substantial legal fees in responding to the Motion for Leave to Appeal as a result of the Respondent’s approach. She states that his materials were disorganized and incomplete and that by including more than ten grounds for appeal, those costs were necessary in order to respond.
[4] She further relies on the fact that this Motion for Leave to Appeal is indicative as to how the Respondent has conducted himself throughout this Application by overly complicating what should otherwise have been a straightforward interim spousal support issue.
[5] The Applicant claims full indemnity costs of $30,618.11 (inclusive of HST).
[6] The Respondent states that the amount claimed by the Applicant is unreasonable for the following reasons:
(a) the motion, which was brought to limit costs at that stage, was not complex;
(b) it was unreasonable for senior family counsel to retain a senior litigation counsel to advise on the Motion for Leave to Appeal;
(c) the content of the Respondent’s Factum was not sufficiently complex to warrant such an amount for costs; and
(d) the majority of the analysis of the Applicant was simply a rejection of the Respondent’s assertions.
[7] The Respondent states that a reasonable amount of costs should be in the range of $6,000.00.
[8] Finally, the Respondent states that the Applicant’s reliance on the offer to settle is not applicable as it was a “no-costs” offer which does not trigger the usual costs consequences under the FLRs.
Applicable Law on Costs
[9] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395 has provided guidance to the courts in identifying the three fundamental purposes of the costs rules:
(1) to indemnify successful litigants for the costs of litigation;
(2) to encourage settlement; and
(3) to discourage and sanction inappropriate behaviour by litigants.
[10] Further, Rule 2(2) of the FLRs adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met – that cases are dealt with justly. (See Blanchard v. Walker, 2012 ONCJ 799 at paras 15‑16).
[11] Where offers to settle have been made, Rule 18 provides that where a party makes an offer to settle and where the order is as favourable as or more favourable than the offer, the party who made the offer is entitled to full recovery costs from the date the offer was served provided the other requirements of the rule have been met.
[12] Rule 24 of the FLRs also calls for the consideration of the following factors:
(1) the reasonableness of each party, any Offers to Settle;
(2) any acts of bad faith by any party;
(3) the importance, complexity or difficulty of the matter;
(4) the scale of costs; hourly rates and time spent; and
(5) the reasonable expectations of the losing party.
[13] Rule 24(5) provides criteria for determining the reasonableness of a party’s behaviour in a case. Of relevance here is Rule 24(5)(a) which requires that the court shall examine the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle.
Analysis
[14] The Court has considered Rule 24(11). The issues in this Motion for Leave to Appeal were made complex by the Respondent and the manner in which he approached the original motion for interim relief. He further complicated matters by filing an overly extensive Notice of Motion for Leave to Appeal and Factum and the Applicant was required to respond. As stated in this Court’s decision when leave was refused, the Respondent was not prejudiced by the decision of the Motion Judge except in the non-compliance portion of her Endorsement and that was entirely appropriate given the documents filed by the Respondent. The Motion Judge left the door open to the Respondent’s ability to substantiate the relevance of his evidence in regards to the issue of non-enforceability of the separation agreement. This leads me to conclude that the Respondent acted unreasonably in pursuing this Motion for Leave to Appeal and the manner in which this was done. The file as a whole certainly suggests that the Applicant is correct in her statement that this is how the Respondent has conducted himself throughout the litigation to this point.
[15] When considering the offer made by the Applicant in this Motion for Leave to Appeal, I accept the Respondent’s submission that a “no-cost” offer does not automatically trigger the cost consequences of an offer to settle as set out in Rule 18. However, the presence or absence of an offer to settle is a factor to consider under Rule 24.
[16] When considering the Applicant’s decision to retain senior litigation counsel to assist in the response to the Notice of Motion for Leave to Appeal, I accept the Respondent’s submission that this is not a cost that should be borne by the Respondent, notwithstanding my conclusions on the approach taken in the Notice of Motion for Leave to Appeal.
[17] Finally, as to the time spent by the Applicant’s solicitors, I note that three solicitors worked on this matter totalling with over 73 hours billed. This amount is difficult to compare as the Respondent has not provided a copy of his solicitor’s account to address the reasonable expectations of the losing party. I do however acknowledge that a significant portion of the work was done by junior counsel.
[18] The assessment of costs is not a mechanical issue (see Boucher et al v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.) at para 26, 2004 14579 (ON CA)). As stated by the court in Delellis v. Delellis, 2005 36447 (ON SC), 2005 CarswellOnt 4956, at para 9 (Ont. S.C.): “The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant.” See also Serra v. Serra.
[19] When I consider the Respondent’s approach to the Motion for Leave to Appeal and Factum and quantum sought by the Applicant, I conclude that the fair amount is for costs to be fixed between the partial indemnity and substantial indemnity rates. I exercise my discretion to fix the costs payable by the Respondent to the Applicant in the amount of $19,000 (inclusive of HST and disbursements), payable forthwith.
Conclusion
[20] I thereby conclude that the Applicant is entitled to a costs award for the Motion for Leave to Appeal in the amount of $19,000, inclusive of taxes and disbursements and payable forthwith.
Justice Marc R. Labrosse
Released: 2017/03/14
CITATION: Laurence v Bridge, 2017 ONSC 1655
DIVISIONAL COURT FILE NO.: FC-14-787
DATE: 2017/03/14
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN
KAREN BRIDGE
Applicant/Responding Party
– and –
RICHARD LAURENCE
Respondent/Moving Party
ENDORSEMENT
M. Labrosse, J.
Released: 2017/03/14