SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 48241/13
DATE: 2014-02-14

RE: CINDY MARGARET BADGER, Applicant

AND:

DANIEL MATYNISSEN, Respondent

BEFORE: The Honourable Justice D.A. Broad

COUNSEL:
M. Wesley Philp, for the Applicant

Kyle A. MacLean, for the Respondent

COSTS ENDORSEMENT

[1] The parties have been unable to settle the issue of costs and have therefore delivered their written submissions on costs, as directed in my Endorsement released January 9, 2014. The following is my disposition with respect to the costs of the Respondent’s motion to transfer the case from Kitchener to Owen Sound. The motion was dismissed without prejudice to the respondent bringing a further motion to transfer following a Settlement Conference.

Positions of the Parties

[2] The applicant submits that she was successful on the motion, and as such is entitled to costs. Moreover, she submits that the recovery obtained by her pursuant to the order was more favourable than the terms of her Offer to Settle, in letter form, sent December 18, 2013 providing for withdrawal of the motion without costs, and accordingly she should be awarded substantial indemnity costs, including the costs of counsel’s attendance on the adjournment of the motion on December 20, 2013. In this respect she presents a Bill of Costs, on a substantial indemnity basis, claiming fees of $8,100, disbursements of $344.48, and HST of $1,097.78 for a total of $9,542.26.

[3] The respondent submits that each party should bear their own costs on the basis that the parties had divided success, as the dismissal of the motion was made without prejudice to the respondent bringing the motion back on at a later date. In the alternative, he argues that in the event that costs are awarded to the applicant, they should be on a partial indemnity scale. He argues that the amount claimed by the applicant for costs is excessive.

Governing Principles

[4] Pursuant to subrule 24(1) of the Family Court Rules, the successful party is presumed to be entitled to recover costs. Subrule 24(11) requires the court, in setting the amount of costs, to consider a number of factors including the importance, complexity and difficulty of the issues, the reasonableness or unreasonableness of each party's behavior in the case, the lawyer’s rates, the time properly spent on the case, expenses properly paid or payable, and any other relevant matter.

[5] Rule 18 deals with the impact of Offers to Settle which may have been served by the parties on the costs determination. Subrule 18(14) provides that a party who makes an offer at least one day before the motion, signed by the party and the party’s lawyer, if any, and obtains an order as favourable as or more favourable than the offer, is entitled to costs to the date that the offer was served and full recovery costs from that date, provided the offer was open for acceptance until the hearing started. Even if subrule (14) does not apply, the court may, under subrule 18(16), take into account any written offer to settle served by a party, the date the offer was made and its terms.

[6] Consideration of the relative success of the parties on the issues in the case is the starting point in determining costs (see Butty v. Butty 2009 23111 (ON SC), [2009] O.J. No. 1887 (SCJ) at para. 4, citing Sims-Howarth v. Bilcliffe 2000 22584 (ON SC), [2000] O.J. No. 330 SCJ). In the case of Johanns v. Fulford 2010 ONCJ at para. 13 Justice Murray held that, for the purpose of Rule 24(1), “success” is assessed by comparing the terms of an order against the relief originally requested in the pleadings and against the terms of any offers to settle.

[7] The Court of Appeal has observed that modern costs rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behavior by litigants (see Fong v. Chan (1999) O.J. No. 3707 (CA) at para. 24).

Analysis

[8] I consider the applicant to have been the successful party on the motion. The fact that dismissal of the motion was without prejudice to the respondent bringing the motion back on after a Settlement Meeting does not mean that success was divided for the purpose of determining entitlement to costs. It simply means that the motion was brought prematurely.

[9] However, I find that the requirements of Rule 18(14) have not been met in respect of the applicant’s offer to settle. The offer was not signed by the applicant and it was not open for acceptance until the start of the hearing.

[10] I do not find that the respondent acted unreasonably in reference to the motion, and indeed, there was a relative lack of clarity in the case-law respecting the subject matter of the motion.

[11] I would not allow any costs to the applicant for the costs associated with attending on the consent adjournment on December 20, 2013. There were no costs awarded for that attendance at the time, and the costs were not reserved to the judge hearing the motion. Moreover, it appears that the fact that the matter was not on the court docket for that date, necessitating the adjournment, was due to an administrative error by the court and not to any fault of the respondent.

[12] I would reduce the fee on the applicant’s Bill of Costs to a partial indemnity rate of $200.00 per hour and allow $2,000.00 for pre-hearing preparation, $800.00 for argument of the motion, and travel time based on $100.00 per hour at $200.00, for a total in respect of fees of $3,000.00.

[13] I would allow photocopy and facsimile expense at $0.15 per page (rather than the $0.50 per page claimed) at $60.00 and $15.00 respectively and mileage at $44.48, for total in respect of disbursements of $119.48. With HST of $405.53, the total is $3,525.00.

Disposition

[14] It is ordered that the respondent pay the applicant costs fixed on a partial indemnity basis in the sum of $3,525.00. This amount is to be paid within 30 days hereof.

D.A. Broad, J.

Date: February 14, 2014