Rawlins v. Rawlins, 2015 ONSC 110

CITATION: Rawlins v. Rawlins, 2015 ONSC 110

COURT FILE NO.: 7890/13

DATE: 2015/01/06

B E T W E E N:

Michael William Charles Rawlins in his capacity as Estate Trustee of Lorna Patricia Rawlins

Jeremy A. Forrest, for the Applicant

Applicant

and -

Robert Duncan Rawlins in his capacity as Estate Trustee of Lorna Patricia Rawlins

Paul R. Heath, for the Respondent

Respondent

The Honourable Justice T. Maddalena

COSTS ENDORSEMENT

1I heard this application at Welland on September 5, 2014. I released my decision October 3, 2014.

2I invited the parties to make written submissions as to costs.

3I received the written submissions of the applicant on October 17, 2014.

4I received the written submissions of the respondent on December 12, 2014.

The Position of the Applicant

5The applicant was fully successful on the hearing of the application.

6The applicant therefore claims, on a partial indemnity basis, costs of the application as well as costs incurred by the applicant as a result of the respondent’s refusal to abide by the terms of the minutes of settlement.

7These costs are particularized by the applicant as follows:

The application costs are $15,334.10, plus disbursements of $2,662.62, inclusive of HST, for a total of $17,996.72.
The costs incurred as a result of the failure of the respondent to abide by the minutes of settlement are also claimed on a partial indemnity basis, in the amount of $6,670.96 together with disbursements of $145.56, inclusive of HST, for a total of $6,816.52.

8The applicant therefore seeks costs on a partial indemnity basis fixed in the amount of $24,813.24 inclusive of HST.

The Position of the Respondent

9The respondent proposes that the court make no order as to costs or alternatively make an award of reduced costs.

10The respondent submits the application proceeded in a straightforward manner and there were no cross-examinations on affidavits.

11The respondent submits that at all times he was acting in his capacity as estate trustee and he proceeded in a manner that he thought, at all times, was in the best interest of the estate as was his obligation under law.

12The respondent objects to the quantum of time claimed by the applicant considering all the issues involved.

13The respondent further objects to costs claimed by the applicant’s counsel prior to the commencement of the application, as well as the amount of $667.50 in disbursements for mileage for the applicant.

Law and Analysis

14Rule 57 of the Rules of Civil Procedure set out the factors to be considered by the court in exercising its discretion under s.131 of the Courts of Justice Act.

15The applicant was successful on the hearing of the application and, thus, should be awarded costs.

16Rule 57.01(3) and (3.1) directs the court to fix costs, unless the matters are exceptional or unusual and should be referred to an assessment. That is not the case here and costs should be fixed by the court.

17Rule 57.01 lists those factors that the court may consider in an award of costs.

18In addition, case law has established that the “overriding principle” in fixing costs is what is a “fair and reasonable” amount to be paid by the unsuccessful respondent to the successful applicant.

19Case law has further held that factors relevant to what is “fair and reasonable” include, but is not limited to, such factors as the amount the respondent would expect to pay, the time required to reasonably prepare and present the case, the amount at stake, and to balance indemnity with access to justice objectives.

20Furthermore, additional factors to be considered include the actual time spent by counsel and the lawyers’ experience and hourly rates charged.

21I find the hourly rates charged appropriate given the years of experience of counsel.

22In the case of Zesta Engineering Ltd. v. Cloutier, (2002) 2002 CanLII 25577 (ON CA), 21 C.C.E.L. (3d) 161, the Court of Appeal noted:

“The costs award should reflect more what the court views as fair and reasonable for the unsuccessful party to pay rather than any exact measure of the actual costs of the successful litigant.”

23Having considered all the factors I am persuaded that the respondent should pay costs fixed in the amount of $15,000.00 all inclusive to the applicant.

Orders Made

24The following order is made:

The respondent shall pay costs to the applicant fixed in the amount of $15,000.00 all inclusive.

Maddalena J.

Released: January 6, 2015