Court File and Parties
CITATION: G.S. v. S.B., 2023 ONSC 2353
COURT FILE NO.: DC-23-00002764
DATE: 2023/04/18
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: G.S., Applicant/Appellant
AND
S.B., Respondent/Respondent in Appeal
BEFORE: Justice R. Ryan Bell
COUNSEL: Gary Joseph, for the Appellant
Tamara Scarowsky, for the Respondent in Appeal
HEARD: In writing
COSTS ENDORSEMENT
[1] On March 6, 2023, I released my reasons on the appellant’s motion for a stay pending appeal and the respondent’s motion for security for costs: G.S. v. S.B.[^1] The respondent was the successful party on both motions and is presumptively entitled to her costs.
[2] The respondent seeks “full recovery” costs of the motions in the amount of $34,931.12; in the alternative, she seeks her costs on a substantial indemnity basis in the amount of $29,691.45. The respondent submits that this is an exceptional case that warrants full recovery costs given the appellant’s bad faith conduct.
[3] The appellant’s primary position is there should be no costs ordered in respect of the motions because the appellant acted only out of love and concern for the child. In the alternative, the appellant submits that costs should be reserved to the panel hearing the appeal.
[4] The general rule is that costs follow the event. I see no reason to depart from this norm in this case. The respondent succeeded in opposing the motion for a stay pending appeal and in obtaining an order for security for costs of the appeal.
[5] Nor, in my view, is this an appropriate case in which costs should be reserved to the panel hearing the appeal. On the hearing of a contested motion, unless the court is satisfied that a different order would be more just, the court “shall” fix the costs of the motion and order them to be paid within 30 days or, exceptionally, refer the costs of the motion for assessment: r. 57.03(1) of the Rules of Civil Procedure.[^2] I am not persuaded that reserving the costs of the motions to the panel hearing the appeal would be more just. In addition, reserving the costs of the motions to the panel hearing the appeal would be inconsistent with adopting the simplest, least expensive, and most expeditious process for fixing costs: r. 57.01(7).
[6] The respondent submits she is entitled to either full or substantial indemnity costs on the basis of the appellant’s bad faith conduct. In support of her position, the respondent urges me to consider “the cumulative conduct of the parties throughout the proceeding as well as conduct both within and outside the litigation.” In my view, the respondent casts the net too broadly, particularly in respect of motions brought in the context of an appeal. Nothing in the appellant’s conduct in relation to the motions rises to the level of egregious or reprehensible conduct that is worthy of the court’s sanction. Re-litigation of the trial issues – at least in respect of the motion for a stay pending appeal – does not merit an award of substantial indemnity costs. The respondent is entitled to her costs of the motions on a partial indemnity scale.
[7] As for the quantum, costs “should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than an exact measure of the actual costs to the successful litigant”: Boucher v. Public Accountants Council for the Province of Ontario.[^3] I find the hourly rates of counsel to be reasonable, having regard to their experience. I also find the total number of hours spent to be reasonable and proportionate, having regard to the importance of the issues to the parties, the moderate complexity of the stay motion, the straightforward nature of the security for costs motion, and the materials filed by both parties. In assessing the reasonable expectations of the appellant, the unsuccessful party, I have also taken into consideration that the appellant’s own costs on a partial indemnity basis are similar to those of the respondent.
[8] Accordingly, having regard to the relevant r. 57.01 factors and Boucher, I find that a fair and reasonable amount for the appellant to pay to the respondent in respect of the motions is $20,000, all inclusive. This amount is to be paid to the respondent within 30 days.
Justice R. Ryan Bell
Released: April 18, 2023
CITATION: G.S. v. S.B., 2023 ONSC 2353
COURT FILE NO.: DC-23-00002764
DATE: 2023/04/18
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: G.S., Applicant/Appelant
AND
S.B., Respondent/Respondent in Appeal
BEFORE: Justice Ryan Bell
COUNSEL: Gary Joseph, for the Appellant
Tamara Scarowsky, for the Respondent in Appeal
COSTS ENDORSEMENT
Ryan Bell J..
Released: April 18, 2023
[^1]: 2023 ONSC 1542. [^2]: R.R.O. 1990, Reg. 194. [^3]: 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).