Court File and Parties
Court File No.: CV-15-074 Date: 2017-06-28 Ontario Superior Court of Justice
Between: Karen Jean Weaver and William Bryce Weaver, Applicants – and – Gordon Robert Anderson, Respondent/Cross-Applicant
Counsel: D. Wyjad, for the Applicants A. Mae, for the Respondent/Cross-Applicant
Heard: (In writing)
Decision on Costs
Wilcox, J.
[1] The decision in this matter invited written costs submissions within given timelines. The Cross-Applicant Gordon Robert Anderson filed his. Nothing has been received on behalf of the Applicants, the Weavers.
[2] The Cross-Applicant’s Bill of Costs included fees of $61,258.00, after a voluntary discount of $24,187.00, plus HST $7,963.54 and disbursements of $17,706.80 inclusive of HST where applicable, for a total of fees and disbursements of $86,928.34. There is no explanation given for the voluntary discount, so I have not taken it into consideration in exercising my discretion in setting the costs.
[3] Section 131 of the Courts of Justice Act leaves the costs of a proceeding to the discretion of the court. Rule 1.04(1) of the Rules of Civil Procedure requires the court to make orders and give directions that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding. Rule 57 of the Rules of Civil Procedure sets out the factors to be considered by the court, in addition to the result in the proceeding and any offer to settle, in exercising this discretion. Rule 49.10(1) of the Rules of Civil Procedure provides:
49.10 (1) Where an offer to settle, (a) is made by a plaintiff at least seven days before the commencement of the hearing; (b) is not withdrawn and does not expire before the commencement of the hearing; and (c) is not accepted by the defendant, and the plaintiff obtains a judgment as favourable as or more favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer to settle was served and substantial indemnity costs from that date, unless the court orders otherwise.
[4] “Modern costs rules are designed to foster three fundamental purposes:
- To indemnify successful litigants for the cost of litigation;
- To encourage settlements; and
- To discourage and sanction inappropriate behaviour by litigants.” [1]
[5] “The costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.” [2]
[6] In the present case, the Cross-Applicant was successful in obtaining the parcel of land that was in dispute. Furthermore, he had made an offer dated May 10, 2016 for that relief, which offer would trigger Rule 49.10(1). Therefore the Cross-Applicant would be entitled to partial indemnity costs to the date of the offer, and substantial indemnity costs thereafter. I calculated the partial indemnity costs to the date of the offer, at 60% of the full fees recorded for that period, to be $12,955.80. I further calculated the substantial indemnity fees following the offer at 90% of the full fees recorded for that period, to be $35,698.50. That produces a total for fees alone of $48,654.30.
[7] Looking at the Rule 57.01(1) factors, I do not take serious issue with the Cross-Applicant’s submissions on the principal of indemnity, on the amounts claimed and recovered, on the complexity of the proceeding, and on the importance of the issues. There was no issue of apportionment of liability in the sense of finding fault. The reasons for the decision noted that there was a legitimate dispute that arose out of the uncertainty created by the surveying of the line between the parties’ respective properties.
[8] The obtaining of an expert’s report of high quality by the Cross-Applicant, and the use made of that report during the proceedings, including by the Applicants’ counsel who explicitly recognised its value, probably shortened the proceedings substantially.
[9] Rule 57.01(1)(0.b) is perhaps the most difficult factor to analyse, as there is no direct information as to the Applicants’ subjective expectations as to what the costs might be, or what the objectively reasonable expectation would be. As noted above, there is no evidence as to the monetary value of the lands in question. Despite the high value generally attributed to waterfront property in cottage country, it is not known what value the land in question would have or add to either of the parties’ respective properties. Notably, neither side offered to purchase or sell for any price, so there is no assistance from this point of view with the issue of proportionality. The dollar value of the land does not appear to represent its subjective, intangible value to either side. However, the Applicants having provided no submissions as to costs, I will assume that they knew what their own legal bill was amounting to as the case proceeded, which would give them some idea of a possible costs award. Furthermore, they would have received the Cross-Applicant’s costs submissions and had an opportunity to respond if they believed them to be out of line.
[10] Having taken the above law and factors into account, I conclude that an award of costs of $48,654.30 plus applicable taxes, and of disbursements of $17,706.80 inclusive of applicable taxes is reasonable in the circumstances, and I order the Applicants to pay that within 90 days.
Justice J. A. S. Wilcox Released: June 28, 2017
Citations
[1] Fong v. Chan, 46 O.R. (3rd) 330 [2] Boucher v. Public Accountant’s Counsel (Ontario), [2004] O.J. No. 2634