NEWMARKET COURT FILE

COURT FILE NO.: CV-14-117882-00
DATE: 20140425

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: NATHAN EDWARD GIBBONS, Applicant

AND:

LINDSAY CAWTHRA MULOCK, Respondent

BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY

COUNSEL:
L. Wickham, for the Applicant
G. Karahotzitis, for the Respondent

HEARD: By written submissions

COSTS ENDORSEMENT

[1] This endorsement on costs follows the ruling released by this court on April 3, 2014 with respect to the respondent’s motion for an order transferring the application to the Family Court Branch of the Superior Court of Justice (Gibbons v. Mulock, 2014 ONSC 2121).

[2] The respondent’s motion was entirely successful. The application had been commenced in the wrong forum; as stated at paragraph 10 of the decision, the only court available to the applicant in the circumstances is the Family Court, as the civil branch of the Superior Court has no jurisdiction in York Region to hear the application in question.

[3] The result was one entirely dictated by what should have been non-contentious statutory interpretation. Yet the applicant’s counsel advanced arguments that were not supported by common law or statute. These same arguments were advanced during the preliminary exchange of correspondence between counsel, in which the respondent’s counsel offered at least twice to facilitate a change to the correct court. For example, the respondent’s counsel offered to co-operate in having the application discontinued without costs and without prejudice to the applicant’s right to commence an application in the Family Court, or to consent to an order transferring the proceeding to the Family Court. The applicant rejected both of these offers, even though warned that costs would be sought if a motion had to be pursued.

[4] In his costs submissions the applicant’s counsel characterizes such opposition as something to be given deference under our adversarial system, and argues that the ruling did nothing to advance or resolve the substantive issues between the parties. Such submissions entirely miss the point. Opposition that is groundless is a complete waste of time, money and resources. Further, there are procedures built into the Family Court to discourage baseless, adversarial positioning, which is one of the reasons why disputes that have their genesis in the Family Law Act, as this one does, are directed toward the Family Court. And while it is a fact that the motion did nothing to resolve the substantive issues, this only highlights the wastefulness of the resources that had to be directed toward it.

[5] The respondent seeks costs a substantial indemnity basis, fixed in the amount of $7,445.64 inclusive, and payable within 30 days.

[6] Wide discretion in fixing costs rests with the court, bearing in mind the principles enunciated in the leading Ontario cases such as Anderson v. St. Jude Medical Inc. (2006), 2006 85158 (ON SCDC), 264 D.L.R. (4th) 557 (Ont. Div. Ct.), Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), Zesta Engineering Ltd. v. Cloutier (2002), 2002 45084 (ON CA), 164 O.A.C. 234 (Ont. C.A.), and Clarington (Municipality) v. Blue Circle Canada Inc., 2009 ONCA 722, 100 O.R. (3d) 66.

[7] Rule 57.01(4)(c) confirms the authority of the court to award all or part of the costs of a proceeding, including a motion, on a substantial indemnity basis. The considerations that underscore the need for a cost award on a substantial indemnity basis are the unreasonableness of the position advanced by the applicant, the fact that the motion should have been unnecessary, and the fact that the applicant twice rejected the respondent’s offer to move the matter to the correct forum in order to avoid the costs of the motion. The opposition was vexatious and unnecessary. The respondent should not have to bear any cost for a procedural step that was taken in error.

[8] It was reasonable for the respondent to bring this motion as she has every right to avail herself of the resources and procedures of the Family Court in the face of this application.

[9] Having regard to Costs Outline provided by the respondent, I find that the fees and disbursements are reasonable and proportionate to the amount of work necessitated by the motion, and the experience of the lawyers involved. Although the applicant’s counsel suggests that his client’s reasonable expectations regarding fees are in the range of $2,200, such an amount is unreasonably low for the amount of work that done by the respondent’s counsel in preparing the motion and presenting the law and argument to assist the court.

[10] In all of the circumstances of the case, I find that a fair and reasonable amount for costs of this motion is the quantum sought by the respondent.

[11] This court orders that the applicant shall pay costs of this motion to the respondent on a substantial indemnity basis fixed in the amount of $7,446, and payable within 30 days.

HEALEY J.

Date: April 25, 2014