Court of Appeal for Ontario

Date: 2003-02-17 Docket: C35038 and C37099

Re: Bruce Alan Brown (Appellant) -and- Patricia Margaret Brown (Respondent)

Before: Rosenberg, Feldman and Gillese JJ.A.

Counsel: Bruce Alan Brown, the appellant in person W. Gerald Punnett, for the respondent

Endorsement Released: March 5, 2002

Endorsement Re Costs

[1] In March 2002, this court dismissed three appeals brought by the appellant against orders made by Rogers J. and Herold J. The respondent obtained complete success on two of the appeals and virtually complete success on the third. As a result, we ordered that all three appeals be dismissed with costs to the respondent. At the appellant’s request we delayed dealing with costs because of other matters pending in the Superior Court of Justice. The appellant submitted that those proceedings would have a bearing on the costs of the appeal. We understood that a motion before Rogers J. to deal with those matters was to be heard on October 16, 2002. The parties were to provide any further submissions after that motion was dealt with. Counsel for the respondent provided submissions but made no mention of the October 16, 2002 motion. The appellant asked that this court further delay the question of costs. The appellant stated that the motion before Rogers J. was to remove counsel of record for the respondent, who also appeared before this court. He stated that submissions were made before the trial judge on October 16, 2002 and that further submissions were to be filed by November 21, 2002. Whether or not that motion was successful, the appellant asked that we not deal with costs until after the question of costs at the trial was dealt with. We have not dealt with costs pending determination of the motion before the trial judge.

[2] On December 31, 2002, Rogers J. dealt with the motion to remove Mr. Punnett as solicitor of record for the respondent. She dismissed the motion and fixed a timetable for the parties to make submissions respecting costs of the trial. Since the motion has been dealt with, we see no reason for this court to further delay the fixing of costs of the appeal. We do not think it necessary to await the trial judge’s fixing of the costs of the trial.

[3] Counsel for the respondent filed two sets of submissions. In the submissions filed in September, the respondent seeks costs totalling $21,325.24. Counsel gives his hourly rate as $200. In the submissions filed in October, the respondent seeks costs of $33,050.30 for the same work. Counsel now says his hourly rate is $350.

[4] The appellant acted for himself on the appeal but retained counsel to make the costs submissions. In those submissions, counsel argues that the time claimed for preparation is excessive and that the respondent incurred unnecessary costs by bringing certain motions pending the appeal. The appellant submits that the respondent should be denied her costs entirely.

[5] Having reviewed the submissions of the appellant’s counsel we see no reason to depart from our original view that the respondent is entitled to her costs. We cannot say that the respondent was wrong to bring the motions. There was good reason to think that one of the appellant’s assets, the vessel, might disappear pending the appeal. However, this is not a case for costs on a substantial indemnity basis.

[6] Given the history of this matter, we think that most of the preparation time is properly claimed. The appellant was appealing three orders and he raised numerous grounds of appeal. The respondent has however claimed a very large amount for correspondence that is unsupported by any dockets or any submissions. We are also of the view that the counsel fee is excessive.

[7] Accordingly, the respondent is entitled to her costs on a partial indemnity basis fixed at $17,500 inclusive of disbursements and G.S.T.

Signed: “M. Rosenberg J.A.” “K. Feldman J.A.” “E.E. Gillese J.A.”