Court File and Parties

Citation: Hronowsky v. Hronowsky, 2018 ONSC 5520 Divisional Court File No.: 103/18 Date: 2018-09-20 Superior Court of Justice – Ontario Divisional Court

Re: Lynda Mary Van Delst (Hronowsky), Applicant (Responding Party) And: Thomas John Hronowsky, Respondent (Moving Party)

Before: Then, Low and Myers JJ.

Counsel: Katherine L. Shadbolt, for the Applicant (Responding Party) John Summers, for the Respondent (Moving Party)

Heard at Toronto: August 31, 2018

Endorsement As To Costs

[1] On August 31, 2018, the panel endorsed the motion record denying leave to appeal. The court awarded costs in the amount of $2,000 partly on the basis of the responding party’s failure to file costs submissions within five days as required by the direction of the Associate Chief Justice.

[2] The panel has reviewed the factual background leading to its initial endorsement and has determined that as no order has been made it is in the interests of justice to rescind the initial endorsement and to substitute a different award of costs.

[3] In its correspondence of August 7, 2018, the responding party referred to the direction of the Associate Chief Justice, which had been sent to both counsel on May 14, 2018. However, from the correspondence it was not clear to the panel whether counsel had declined to file submissions as a result of offers to settle or for some other reason.

[4] The panel, through its staff, sought clarification from the responding party, but unfortunately counsel was out of the country until August 31, 2018. However, by correspondence dated August 28, 2018, a member of her firm reiterated, in terms virtually identical to that of counsel, the same position that had been taken by counsel on August 7, 2018. As a result, it was still not clear to the panel why the responding party had not filed costs submissions.

[5] The correspondence of the moving party dated August 23 did not assist the panel in clarifying the situation. Counsel acknowledged that the court had requested submissions on costs pursuant to the practice direction of the Associate Chief Justice. However, counsel explained that he was unable to provide a detailed bill of costs because all the work had been done by previous counsel. Counsel submitted that if leave was granted costs should be fixed in the amount of $5,000. There is no reference to offers to settle which, pursuant to the direction of the Associate Chief Justice, would render the filing of a bill of costs five days prior to hearing unnecessary.

[6] The court received the responding party’s bill of costs and costs submissions on August 30, 2018, but the panel declined to review those submissions, as it appeared that they had not been filed in a timely fashion. The correspondence of responding counsel specifically did not indicate that the existence of offers to settle informed counsel’s decisions as to the timing of the filing of costs submissions, nor was any other reason for failure to comply advanced by counsel.

[7] On September 4, 2018, the panel received further correspondence from responding counsel explaining that counsel had interpreted the practice direction of the Associate Chief Justice as directing that costs submissions that would include offers to settle should not be sent prior to the decision being made. Counsel explained that since the moving party had made three offers to settle and essentially agreed to the request of the moving party to appeal on terms, counsel was concerned about submitting these offers to the court with costs submissions prior to the hearing of the leave applications.

[8] In our view, the correspondence of responding counsel of August 7 and 23 was unclear as to the reason the costs submissions were not provided in a timely fashion. Had counsel simply indicated the existence of offers to settle, as indicated in the correspondence of September 4, the present difficulties would have been avoided. On the other hand, the practice direction does not specifically require that the parties indicate the existence of offers to settle as the reason for not forwarding costs submissions five days prior to the hearing of the application for leave to appeal. In order to forestall the type of situation before us, the panel is prepared to recommend that the practice direction be amended to require the parties to specifically indicate the existence of offers to settle as the reason for non-compliance with the five day filing requirement with respect to costs prior to the hearing of the leave to appeal.

[9] We have concluded that the endorsement of the court dated August 30, 2018, is no longer appropriate, as it is now clear that counsel for the responding party has in fact complied with the practice direction of the Associate Chief Justice. Accordingly, we are prepared to rescind the endorsement in the interests of justice, as no order by the court has been either issued or taken out by counsel.

[10] In the costs submissions of the responding party counsel submits that given the nature of the issues before the court and the offers to settle, costs on a substantial indemnity basis should be awarded in the amount of $5,843.60, including HST, as outlined in the bill of costs. The respondent in his correspondence conceded that if leave is granted costs in the amount of $5,000 be awarded to the responding party.

[11] In the normal course this court has indicated in 2265535 Ontario Inc. v. Vijayant Sood 2017 ONSC 473 that an award of costs in the amount of $5,000 all inclusive to the successful party is the usual high water mark with respect to an application for leave to appeal depending on all the circumstances.

[12] Accordingly, we dismiss the application for leave to appeal and in all the circumstances we are of the view that it is fair and reasonable to award costs to the responding party in the amount of $5,000 all inclusive.

THEN J.

LOW J.

MYERS J.

Date: September 20, 2018