COURT FILE AND PARTIES

COURT FILE NO.: FS-08-00338385-0000
DATE: 20131114

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: James Cameron Collie, Applicant

• and -

Gail D. Collie, Respondent

BEFORE: S. Stevenson, J.

COUNSEL:
Gary S. Joseph and Kristy Maurina, for the Applicant

Kenneth A. Cole and Andrew Chris, for the Respondent

HEARD: September 9, 2013

ENDORSEMENT AS TO COSTS

[1] In my endorsement dated October 4, 2013, I urged the parties to agree on costs, but asked that if they were unable to do so, they provide me with their written submissions. I have now had an opportunity to review the costs submissions of both parties.

[2] The respondent submits that she was successful as the applicant's motion for leave to appeal the Arbitration Award of the Arbitrator, Alfred A. Mamo, was dismissed. The respondent seeks costs on a full recovery basis in the amount of $21,381.86. In the alternative, she seeks an order for costs in the amount of $16,036.40, inclusive of HST on a substantial indemnity basis. She contends that given her success on the motion, the importance of the motion to her and the fact that she did not behave unreasonably or in bad faith, she is presumptively entitled to costs on a full recovery basis.

[3] In contrast, the applicant submits that the respondent is not entitled to costs on a full recovery basis. He contends that there was no inappropriate behaviour by him to suggest that costs on a full recovery basis should be payable. He also submits that the respondent should not be entitled to her costs on a partial indemnity basis in the amount claimed by the respondent. He submits that there must be a set off for the fact that he was successful on the issue of the appropriate test for leave to appeal an interim award. He submits that a more appropriate cost amount would be $8,000, inclusive of disbursements and HST.

Success

[4] Under Rule 24(1) of the Family Law Rules, O. Reg. 114/99 (the "FLRs"), there is a presumption that a successful party is entitled to costs. The respondent submits that she was successful on the motion and that despite the fact that the applicant was successful, in that rule 62.02(4) of the Rules of Civil Procedure, O. Reg. 575/07 was found not to be the appropriate test for leave to appeal on this motion, this issue represented only a small portion of the time and costs on the long motion.

[5] The applicant submits that the respondent's position that the Arbitration Act, S.O. 1991, c. 17 did not govern the motion was not a minor issue and both parties spent significant time on this issue in preparation of materials and in argument.

[6] I agree that the respondent was successful as the applicant's motion for leave to appeal was dismissed. I also agree with the applicant that his position on what the appropriate test was to be applied for leave to appeal the interim Arbitration Award was accepted. However, I also acknowledge that the majority of the time at the hearing focused on whether the applicant met the test for leave to appeal which I found he did not. As such, the respondent should be entitled to costs, but a reduction applied given the success of the applicant on the issue of the test to be applied.

Offers to Settle

[7] Neither party served an Offer to Settle. Consequently, Rule 18 of the FLRs does not apply.

Factors in Costs

[8] The factors that a court must consider in determining costs are set out in s. 24(11) of the FLRs as follows:

The Importance, Complexity or Difficulty of the Issues

[9] The motion was significant to both parties and was somewhat novel as it pertained to the arguments raised regarding the valuation.

The Reasonableness or Unreasonableness of Each Party's Behaviour in the Case

[10] Both parties behaved reasonably and both parties submit that behaviour was not an issue on this motion.

The Lawyers' Rates

[11] I consider the rates of both counsel to be appropriate as submitted. Both have extensive experience with Mr. Cole having 37 years of experience and Mr. Joseph having 35 years of experience. The rates charged by senior counsel are reasonable for counsel in Toronto with the same experience. The rates charged by Ms. Maurina and Mr. Chris are also reasonable.

The Time Properly Spent on the Case

[12] The time spent by senior counsel for both parties is also appropriate. Mr. Cole spent more time on the motion than Mr. Joseph as more of the preparation time for the applicant was by Ms. Maurina. However, I do note that both parties had two counsel each attend on the motion. Both Mr. Cole and Mr. Chris charged for their attendance at the motion and both Mr. Joseph and Ms. Maurina charged for their attendance at the motion. Neither Mr. Chris nor Ms. Maurina made submissions at the hearing, although I acknowledge they were involved with the preparation of all documentation for the hearing. There was also some duplication of time spent by counsel in the preparation and review of court documentation including the facta. There should be a reduction for this duplication.

Expenses Properly Paid or Payable

[13] I have reviewed the expenses claimed by the applicant and find the expenses claimed of $379.94, plus HST to be reasonable. There were no claims made by the respondent.

Any Other Relevant Matter

[14] Rule 24(11)(f) of the FLRs states that a person setting the amount of costs shall consider any other relevant matter. The applicant submits that costs should not be awarded for either attendance on June 19, 2012 and September 4, 2012. He submits that on both dates the motion had to be adjourned through no fault of either party and new dates were selected on consent of the parties. I see no reason to order costs against either party for those attendances.

Order

[15] Given neither party behaved unreasonably, no Offers to Settle were made and the applicant was successful on the test to be applied for leave, I decline to order costs on a full recovery basis or a substantial indemnity basis as requested by the respondent.

[16] As stated in Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.) at para. 26, with respect to costs: "the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant".

[17] Taking into consideration the submissions of the parties and the other factors outlined above that I have considered under Rule 24(11), the applicant shall pay costs to the respondent in the amount of $9,000, inclusive of HST and disbursements, payable within 30 days.

Stevenson J.

DATE: November 14, 2013