Ontario Superior Court of Justice (Divisional Court)
CITATION: Norris v. Norris, 2017 ONSC 4426
DIVISIONAL COURT FILE NO.: 16-70963
DATE: 20170721
BETWEEN:
ANDERSON NORRIS Appellant/Moving Party
– and –
ELLEN NORRIS Respondent in Appeal/ Responding Party
COUNSEL:
Michael Rappaport, for the Appellant/Moving Party
Steven Fried, for the Respondent in Appeal/Responding Party
HEARD: In writing
DECISION ON COSTS
[1] On June 8, 2017, I dismissed the Appellant’s motion for leave to appeal the order of Justice Maranger where he ordered the Appellant to pay $10,000 in costs “thrown away” to the Respondent, and other relief. While the Appellant was clearly unhappy with that order, he failed to provide the necessary material in support of his motion for leave.
[2] The Respondent now seeks her costs in the amount of $6,000.00 plus HST for a total of $6,780.00 on a substantial indemnity basis.
[3] Respondent counsels’ hourly rate is $300.00 per hour and he claims that he devoted 20 hours to respond to the motion for leave. The Respondent identifies several reasons why the motion for leave should never have been brought in the first place. I concur with all of these; namely:
- Appeals of an interim order are rarely successful;
- Counsel for the Appellant made admissions throughout the motion before Justice Maranger, essentially agreeing to the relief as ordered;
- Counsel for the Appellant also recognized that there was prejudice to the Respondent and that some costs should be payable;
- When Justice Maranger requested counsel for the Appellant to make submissions on costs, counsel failed to do so;
- The amount of costs ordered by Justice Maranger represented less than one half of the fees claimed by the Respondent up to that time;
- Counsel for the Appellant failed to provide proper evidence and the case law with respect to the test for leave to appeal as per Rules 62.04(4) (a) and (b);
- Counsel for the Appellant knew or ought to have known the costs implications of seeking an amendment to pleadings; and
- The motion for leave to appeal has caused further delay and has required both parties to incur unnecessary legal fees.
[4] Having regard to Rule 24 of the Family Law Rules, O. Reg 114/99, there is no doubt that the Respondent was entirely successful and is presumptively entitled to costs. The factors set out in Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 are also applicable.
[5] The Appellant argues that the Respondent has failed to provide a Costs Outline yet he has failed to provide any evidence of his own costs in preparing his motion for leave to appeal. The Appellant appears to suggest that since motions for leave to appeal are rarely successful, the Respondent should not have taken the time to respond. The Appellant continues to debate the decision of Justice Maranger and argues the merits of his appeal even though leave to appeal was denied.
Conclusion
[6] The Appellant brought a motion for leave to appeal which was substantially and procedurally defective and which he acknowledges was unlikely to succeed. He has further delayed this proceeding and, for a second time, has forced the Respondent to incur more unnecessary costs. For these reasons, the Respondent is entitled to her costs on a substantial indemnity basis which I fix in the all-inclusive sum of $5,000.00 payable forthwith.
Mr. Justice Robert N. Beaudoin
Released: July 21, 2017
CITATION: Norris v. Norris, 2017 ONSC 4426
DIVISIONAL COURT FILE NO.: 16-70963
DATE: 20170721
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ANDERSON NORRIS
Appellant/Moving Party
– and –
ELLEN NORRIS
Respondent in Appeal/ Responding Party
DECISION ON COSTS
BEAUDOIN J.
Released: July 21, 2017