NEWMARKET COURT FILE NO.: FC-09-032923-01
DATE: 20140602
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Frances Magri, Applicant
AND:
Ennio Cellupica, Respondent
BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN
COUNSEL:
K. Larsen, Counsel for the Applicant
J. Lo Faso, Counsel for the Respondent
HEARD: By written submissions
COSTS ENDORSEMENT
[1] The applicant was successful in her motion to set aside the contempt order of Justice C.A. Gilmore. The parties cannot agree on costs and both have filed written submissions.
[2] The applicant mother, as the successful party, seeks costs in the amount of $12,959.66. The costs sought are on a full recovery basis, based on a discounted rate available to her.
[3] The respondent father submits that there should be no order as to costs for either side. The respondent submits that because the issue was a contempt order, the respondent was unable to consent to such relief and his attendance in court was required for the assistance of the court. In the alternative, the respondent submits that the applicant’s bill is inflated and out of proportion to the issues. As to the issue of consent, the respondent stated in para. 18 of its submissions:
The order to set aside contempt cannot be made on consent because the Rules specifically state that a change in the order can only be made if a party gives a reason that is satisfactory to the court. This was not up to the respondent party to decide, but was up to the court to decide.
[4] The respondent did not submit his own Bill of Costs for comparison purposes.
[5] I accept the applicant’s submissions that costs previously awarded to the respondent by Gilmore J. are not thrown away. They can be revisited should the respondent return to Justice Gilmore with respect to the contempt issue.
[6] The applicant was completely successful at the motion. Her material filed indicated that her failure to attend before Gilmore J. at the contempt hearing was caused by lack of communication from her former counsel. Simply put, her former counsel told her she did not need to attend the hearing. She relied on that advice. She has now filed a complaint with the Law Society of Upper Canada.
[7] The respondent was not in any way at fault for the failure of the applicant’s former counsel to appear at the contempt hearing. However, in view of the materials served on him for this motion, I am satisfied that he could have consented to the relief sought and avoided the hearing. In the alternative, if he felt that he could not consent to setting aside of an order of contempt, he could have taken the position that he did not oppose the relief sought if costs were not sought, leaving the contempt issue to be determined by the motions judge. He did not choose that route. Instead, he vigorously opposed the motion to set aside the contempt hearing.
[8] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905, confirmed that modern costs rules are designed to foster three fundamental purposes, namely, to partly indemnify successful litigants for the cost of litigation, to encourage settlement, and to discourage and sanction inappropriate behaviour by litigants. Awards should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party.
[9] Although the respondent opposed the relief sought, I am not satisfied that this conduct rose to the level of bad faith warranting full indemnity costs.
[10] I have also considered the principles in Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (ONCA).
[11] I also acknowledge the importance to the applicant of setting aside a finding of contempt against her.
[12] Having considered the submissions of the applicant and respondent, and the applicable principles with respect to costs, I find that an award of costs of $5,500, all inclusive, is fair and reasonable under the circumstances.
[13] Costs are payable by the respondent to the applicant in the amount of $5,500, all inclusive, forthwith.
MULLIGAN J.
Date: June 2, 2014