Clarke v. Hale, 2015 ONSC 4050
CITATION: Clarke v. Hale, 2015 ONSC 4050
COURT FILE NO.: CV-13-00483444
DATE: 20150623
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Gordon S. Clarke, Applicant
AND:
Mark S. Hale, Respondent
BEFORE: S.A.Q. Akhtar J.
APPEARANCE: Gordon S. Clarke, Applicant (self-represented)
Richard J. Payne, Counsel for Respondent
costs endorsement
[1] On May 15, 2015, this matter appeared before me as a motion for contempt brought by the applicant, Gordon S. Clarke. The parties, on that date, settled the motion by agreeing a number of terms including the implementation of a previous order made by O’Connell J. on August 1, 2014.
[2] The applicant now seeks costs of the motion on a full indemnity basis in the amount of $42,994.75 which includes an amount of $1,187.25 for disbursements. His claim is based on the fact that the respondent deliberately ignored a court order thereby forcing him to bring a new motion arguing an allegation of contempt.
[3] Both parties agree that the fixing of costs is a discretionary decision under s.131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c)). Overall, the court is required to consider what is "fair and reasonable" in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario), 2004 14579 (ON CA), (2004), 71 O.R. (3d) 291, at paras 26, 37.
[4] Whilst I am sympathetic to the applicant’s submissions regarding the respondent’s deliberate flouting of a pre-existing court order, I balance his frustration against the respondent’s current predicament in which he faces a number of existing costs orders which arise out of the current litigation including a $25,000 order made by Matlow J. on January 5, 2015. To order anything close to the amount requested by the applicant would impose a crushing burden on the respondent. I am also cognisant of the fact that the respondent chose to settle this matter, albeit on the morning of the hearing, rather than proceeding with the motion.
[5] I conclude therefore that the fair and reasonable amount of costs in the circumstances of this case is $15,000 inclusive of disbursements and HST. This amount is to be paid within 60 days.
S.A.Q. Akhtar J.
Date: June 23, 2015