Brar v. Brar, 2017 ONSC 6372

CITATION: Brar v. Brar, 2017 ONSC 6372

NEWMARKET COURT FILE NO.: FC-15-48499-00

DATE: 20171024

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Chitwan Brar, Applicant

and

Anupinder Singh Brar, Respondent

BEFORE: The Honourable Mr. Justice R. Kaufman

COUNSEL: J. Bhatal and E. Aiaseh, Counsel for the Applicant

D. Pomer, Counsel for the Respondent (on June 29, 2016 and March 22, 2017)

J. Schuman, Counsel for the Respondent (May 10, 2017)

HEARD: June 29, 2016; March 22 and May 10, 2017

Ruling on costs

[1] This Ruling applies to the motions heard on June 29, 2016 by Justice Bennett and on March 22, 2017 and then May 10, 2017 by this court.

June 29, 2016

[2] The Endorsement of the court indicates a scheduling problem. The court commended counsel for arriving at a temporary resolution which was embodied in the terms of a Consent with the matter being adjourned to a new long motion date which was subsequently scheduled for March 22, 2017. The Consent Order provided for considerable outstanding disclosure while acknowledging disclosure had been received on January 27, 2016, February 8/9, 2016, February 16, 2016, March 17, 2016, March 21, 2016, March 28, 2016 and April 4, 2016. 25 substantive items of personal disclosure were allegedly outstanding as well as disclosure pertaining to the three corporate entities that held the Subway franchises controlled by the respondent and information pertaining to a loan relating to one of the franchise locations.

[3] The Consent Order also provided for the respondent to execute numerous Authorizations relating to release of bank accounts, loans and credit cards with financial institutions, his Equifax Credit Report, information from Canada Revenue Agency and information with respect to the Beauty Supply Outlet and its rented premises.

[4] Of note, the Consent Order also provided an acknowledgement that the respondent, through various corporate entities, held title in the three Subway franchises and the Beauty Supply Outlet franchise in trust for both himself and the applicant, each to a one half beneficial interest. The Order also provided for the sale of the four franchises, the matrimonial home and the condominium property. The Order also provided for the continuation of the preservation and non-dissipation Order granted by Justice Douglas on January 15, 2016 except that either party was able to use their share of the matrimonial home proceeds to acquire a new residence in their name. Costs of the motions were reserved to the judge hearing the motion.

March 22, 2017

[5] On March 22, 2017 the parties appeared before me to argue the Notice of Motion filed by the applicant in which she sought 14 orders including the striking of the respondent’s pleadings, relying upon eight alleged breaches of the Orders of Justices Douglas and Bennett. The applicant also sought spousal support and costs of $11,000 for reimbursement of legal costs incurred by her to compel the respondent to comply with three court Orders for disclosure and her costs to pursue the same directly from financial institutions including disbursements, further costs of $10,460 with respect to the motion of June 29, 2016 and Orders requiring the matrimonial home and condominium property to be listed for sale.

[6] On the return of the motion the parties entered into a further Consent concerning the sale of the matrimonial home and allowing the respondent to utilize his share of the proceeds of sale from the matrimonial home to purchase a new residence for himself. The Consent also contained an acknowledgement that the parties were deemed to be equal owners of the condominium property. The Consent also provided for the delivery of outstanding disclosure by the respondent by May 31, 2017 while acknowledging partial compliance with prior Orders regarding disclosure. The motion was further adjourned to May 10, 2017 to argue the issue of spousal support, the respondent’s cross-motion and to monitor the status of the franchises.

May 10, 2017

[7] On the return of the motion, the court split off the claim for divorce from the other issues and the parties again entered into a Consent Order which provided for the following relief:

(a) from the respondent’s share of the proceeds of sale of the matrimonial home, he was to pay to the applicant the sum of $2,105.50 respecting reimbursement of tenant receipts and contribution to the home expenses as ordered by Justice Douglas on January 15, 2016;

(b) from the respondent’s share of the proceeds of sale of the matrimonial home, he was to pay the sum of $4,000 into a specific account to replace funds removed by him from this account contrary to the Order of Justice Bennett of June 29, 2016. In allowing for this payment, both parties acknowledged that there remained outstanding an accounting by each of them related to car-related expenses owing at the date of separation and incurred by them after this date;

(c) from the respondent’s share of the proceeds of sale of the matrimonial home, he was to pay the sum of $2,250 to the applicant to satisfy arrears owing for the months of February to April, 2017 with respect to the $1,500 per month that Justice Douglas ordered the respondent to contribute to the matrimonial home until it sale;

(d) on a without prejudice basis to the position of both parties, commencing May 1, 2017 the respondent was to pay child support to the applicant in the amount of $2,301 per month based on an imputed income of $110,000 per annum;

(e) on a without prejudice basis, the parties were to share equally all section 7 expenses to which they provided advance written consent;

(f) the Hydro bill owing as of the date of sale of the matrimonial home in the amount of $1,356 was to be paid equally by the parties;

(g) the sum of $33,000 was to be paid to an alleged creditor without prejudice to the position of the parties with respect to the debt and the total amount owing;

(h) the respondent was to obtain the payroll and HST statements from the CRA for the three corporate entities owning the Subway restaurants within 14 days which were then to be provided to the applicant’s solicitor;

(i) upon a binding agreement for the sale of the Steeles Subway, the respondent was to terminate all the employees, provide Records of Employment to the employees and then file all outstanding and up-to-date payroll and HST returns for that corporation within 30 days of closing of the sale;

(j) the applicant’s lawyer was to maintain the proceeds of sale of the Steeles Subway in an interest-bearing account;

(k) the parties consented to a variation of a provision of Justice Bennett’s Order of June 29, 2016 to permit for termination pay and settlement of other claims with respect to employees of any business that is sold to be paid out of the proceeds of sale that were being held by the applicant’s lawyers;

(l) the parties consented to retaining specified law firms to act as a lawyer for the sale of the Steeles Subway franchise and for the sale of the condominium property;

(m) on the sale of a condominium property, each party was to receive the sum of $50,000 with the remainder of the sales proceeds to be held in trust pursuant to the Order of Justice Bennett;

(n) in the event of unresolved issues with respect to the sales of any of the businesses, the parties agreed to arbitrate the matter with specified individuals (with prior mediation if time allows);

(o) the parties agreed to jointly retain an accounting firm to re-create the Financial Statements of all of the businesses for a specified time frames and stipulated that the accountants would consider the position of the parties with respect to certain alleged debts although such determination was not binding upon the parties;

(p) on a without prejudice basis to the position of the parties on all of the financial issues, $10,000 from the respondent’s share of the proceeds of the matrimonial home was to be released to the applicant with such amount to be credited towards any amounts owed by the respondent to the applicant in relation to the issues in these proceedings; and

(q) the costs of March 22, 2017 and this date were to be determined by this court.

Costs Submissions of the Applicant

[8] The applicant seeks costs on a full indemnity basis related to the above events as follows:

(a) $10,460.08 for the costs of the long motion before Justice Bennett on June 29, 2016;

(b) $12,400 for the applicant’s costs of obtaining disclosure on behalf of the respondent; and

(c) $52,517 for costs of the long motions heard on March 22, 2017 and May 10, 2017 before this court.

[9] In support of her claims, the applicant submits the following:

(a) she was the successful party on all long motions;

(b) her Offers to Settle almost mirrored the Orders granted by the court;

(c) she made early, regular and consistent settlement offers which were very close to the terms of the final settlement;

(d) the only major difference is that the applicant did not receive spousal support because child support took priority over her claim;

(e) the respondent agreed to an imputed level of income in the amount of $110,000 contrary to his material and income tax filings wherein he claimed an income of $30,000;

(f) the applicant made formal and comprehensive Offers to Settle with respect to each motion whereas the respondent failed to make an offer on the 2016 long motion and served his Offer for the 2017 motion the evening before the motion was scheduled to be heard;

(g) the respondent ultimately agreed to the relief sought by the applicant but only after the applicant delivered lengthy motion materials;

(h) in so doing, the respondent displayed unreasonable behaviour and caused undue delay in settling the support and property issues;

(i) the respondent failed to provide proper disclosure concerning his income from the three Subway franchises under his control (contrary to Rule 13);

(j) the respondent breached the timelines of Justice Bennett’s Order for disclosure by providing piecemeal and incomplete disclosure over a span of one year which delayed the possibility of an early resolution;

(k) the respondent’s sworn evidence was inconsistent and unreliable;

(l) the above litigation conduct constitutes bad faith;

(m) the respondent breached court Orders of Justices Charney (September 30, 2015), Douglas (January 15, 2016) and Bennett (June 29, 2016) by failing to make complete or even sufficient financial disclosure;

(n) the applicant followed a judicial recommendation in not pursuing her request to strike the respondent’s pleadings notwithstanding her ability to meet the legal test;

(o) given the extent of the respondent’s unreasonable behaviour and bad faith conduct, it is appropriate to award costs to the applicant on a full indemnity basis;

(p) the respondent delayed in providing Authorizations to the applicant to enable her to obtain his disclosure on his behalf until just shortly prior the scheduled motion in 2016 (the obligation to provide such Authorizations was also embodied in the Order of Justice Bennett). As a result the applicant incurred legal fees and disbursements of $12,400 after the respondent failed to comply with the Order of Justice Bennett and his obligations thereunder; and

(q) the respondent failed to respond to the applicant’s attempts to resolve the issue of costs thereby requiring the applicant to incur added expense.

Costs Submissions of the Respondent

[10] The respondent seeks an order that each party bear their costs of the motions returnable before Justice Bennett and this court and of the disclosure issue raised by the applicant.

[11] In support of his claim, the respondent submits the following:

(a) the applicant’ claims are excessive, disproportionate and not reflective of the reality that success was divided between the parties;

(b) the applicant did not achieve the results that she was seeking in her motion material;

(c) she did not meet or beat any of her Offers;

(d) her litigation behaviour was unreasonable;

(e) in essence, the applicant brought one motion that was resolved over three dates;

(f) she did not obtain the primary relief sought, namely striking the respondent’s pleadings or being awarded spousal support;

(g) any relief obtained by the applicant was on consent and much of it was negotiated;

(h) the applicant did not try to negotiate prior to proceeding to court;

(i) the applicant served two non-severable Offers and failed to beat all of the terms of her Offers. The respondent served one severable Offer and met or did better than numerous terms of his Offer. The end result were Consent Orders that presented a compromise between both parties’ positions;

(j) the applicant acted unreasonably both in terms of litigation behaviour and in terms of costs sought. After bringing her initial motion in June, 2016, she brought a civil proceeding seeking essentially the same relief as in this case;

(k) the costs being sought are excessive and disproportionate including spending hundreds of hours for preparation and in excess of $10,000 for obtaining disclosure “on behalf of the respondent”;

(l) in her March 22, 2017 motion the main relief the applicant sought was the striking of the respondent’s pleadings and an order for spousal support in the monthly amount of $6,650 retroactive to May 1, 2015 together the variance of a number of provisions from the Order of Justice Bennett. The respondent submits that the applicant was not granted the relief sought at this event as pleadings were not struck, some matters resolved on consent and the support issue was adjourned to May 10, 2017;

(m) on May 10, 2017 the motion was resolved informally and no spousal support was awarded. In addition, it is alleged that through the efforts of the respondent, relief was achieved beyond the scope of the applicant’s motion by the parties agreeing to a comprehensive Consent including a specific procedure for the sale of the matrimonial home and the businesses and a distribution of the proceeds which was relief not sought by the applicant;

(n) in addition, the Consent provided for payment of debts owing to a non-party and the joint appointment of an accounting firm to recreate the Financial Statements of the businesses which was further relief not requested by the applicant in her motion;

(o) more so, the respondent voluntarily agreed to pay child support based on an income well below the level of income the applicant sought to impute despite the fact that this relief was not sought in the applicant’s motion;

(p) the pending civil proceedings are essentially duplicitous with the pending family law litigation; in the former, the application seeks damages for alleged misappropriation of funds from the businesses and in the family law litigation, she seeks in unequal division of net family property. Two courts will have to opine on one set of issues creating the potential for conflicting judgments and orders;

(q) the respondent submits that there has been no finding of breaches of court orders or that the respondent has not complied with his obligations. Further, the applicant has failed to submit a Bill of Costs outlining the expenditure of time claimed which is excessive and not recoverable;

(r) the financial issues are complex and document-heavy and the associated disclosure is voluminous and complicated;

(s) the amounts claimed are excessive. Regarding the May, 2016 event, the applicant claims almost 17 hours in preparation of an affidavit and motion, 15 hours in preparation of disclosure lists and 8.5 hours in relation to the preparation of Minutes of Settlement. Regarding the May 2017 motion, the applicant claims 100 hours in preparation at a cost of $42,000 and 17 hours for court attendances; and

(t) by contrast, the respondent directed his efforts at creating a path to resolution while defeating the applicant’s most important objectives.

Reply Submissions

[12] The applicant submits that the respondent, in his submissions, misstates the law and misrepresents the facts. She maintains that the focus in determining success must be on the comparison between the final order/settlement-not the relief sought-and the Offer to Settle made by each party. In other words, ignore the prayer for relief that initiates the proceeding and focus on the Offer that, if accepted, could have precluded the motion from being heard.

[13] The applicant states that she was the only party to make an Offer in advance of the May 2016 motion before Justice Bennett and that she obtained almost all of the relief she sought and referenced in her motion and Offer to Settle and, in fact, she exceeded her requests by obtaining beneficial ownership in all four businesses.

[14] The applicant submits, quite correctly, that the court did not receive evidence with respect to the merits of her civil claim which arose after the respondent conceded the applicant’s equal beneficial ownership of the four businesses and which claim is premised on the alleged misappropriation of cash revenue by the respondent both before and after separation.

[15] The applicant maintains that it is the respondent who has acted unreasonably in increasing the costs of the litigation by concealing financial information (requiring three disclosure Orders from the court) and misled the court by swearing deliberately false evidence. The applicant further alleges that the respondent has now taken the position that the Consent Order to jointly retain accountants to recreate financial records of the four businesses is no longer required thereby again placing himself in breach of a court order. In that regard, the court has heard no evidence and is unable to consider these fresh allegations.

Analysis

[16] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395, [2009] O.J. 1905 confirmed that modern costs rules are designed to foster three fundamental purposes, namely to partially indemnify successful litigants for the cost of litigation, to encourage settlement and to discourage and sanction inappropriate behaviour by litigants bearing in mind that the awards should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party.

[17] Modern costs rules are designed to foster, amongst other things change in litigation behaviour. Rules have detailed specific and clear requirements for disclosure in family law cases – financial disclosure is a cornerstone. When a party deliberately does not disclose and forces the other side to run up costs then full recovery of costs may well be appropriate.

[18] Sub-rule 24(1) of the Family Law Rules (the Rules) creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. Sims-Howarth v. Bilcliffe 2000 CanLII 22584 (ON SC), [2000] O.J. No. 330 (SCJ- Family Court). To determine whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made. Lawson v. Lawson 2008 CanLII 23496 (ON SC), [2008] O.J. No. 1978 (SCJ).

[19] Sub-rule 18(14) of the Rules addresses the costs consequences of failing to accept “an” offer. I find from that wording that I am to consider the complete offer unless it is clear that the distinct individual provisions within it are severable. I agree with Justice Wildman in Paranavitana v. Nanayakkara, 2010 ONSC 2257, [2010] O.J. No. 1566 (S.C.J.) where she comments that discrete offers for each issue in play are an underused tool that can confer considerable settlement and cost advantages, and where she found at para. 14:

… as the offer was not severable, the wife would have to do as well or better than all the terms of the offer, in order to take advantage of the full recovery cost provisions of Rule 18(14).

[20] The court has a discretion to take into account any written Offer to Settle, the date it was made and its terms, even if sub-rule 18(14) does not apply, when exercising its discretion over costs (sub-rule 18(16)). Further, in deciding whether a party has acted reasonably or unreasonably in a case, the court shall examine the reasonableness of any offer the party made (Clause 24(5) (b) of the Rules). By contrast, a party’s failure to serve an Offer to Settle may be viewed as an adverse factor in determining the issue of costs: M. (J.V.) v. P. (F.D.), 2011 CarswellOnt 13510 (Ont. C.J.).

[21] To commence an analysis of the respective Offers I first examine the Offer of the respondent dated March 21, 2017 and apparently served the evening prior to the motion. Without having to make a determination if this document qualifies as an Offer because of the apparent lateness of its delivery, I cannot ignore that paragraph 1 states that the respondent shall deliver the disclosure as set out in the Order of Justice Bennett dated June 29, 2016 on or before May 30, 2017. Paragraph 8 of the same Offer states that the respondent shall pay no costs for the June 29, 2016 motion. To the credit of the respondent, paragraph 17 of the Offer allows for the Offer to be accepted in whole or in part. How can the respondent suggest that he has acted reasonably in his litigation conduct when he offers to provide disclosure that was ordered, on consent, 11 months earlier?

[22] In Kochar v. Kochar, 2015 ONSC 6650, Justice Aston described the proportionality principle at paragraph 4:

… The proportionality principle was already enshrined in the Family Law Rules by Rule 2. Rule 2 encourages courts to downsize the procedure in any given case so long as the court is still able to justly deal with the issues raised. Comprehensive or exhaustive oral examinations or production of documents may make access to justice unnecessarily expensive or protracted. Merely proving the relevance of a document may be insufficient to warrant production. To order production the court must be satisfied that it would be “unfair” to the party seeking production to go on with the case without the document or information. In essence the document must be found to be important to a party’s case, especially in relation to the amount at stake.

[23] In assessing reasonableness of behaviour I am unable to ignore that there are no less than four Orders of this court wherein disclosure, on consent, was ordered and not produced by the respondent on a timely basis. As stated by Justice Czutrin in English v Dixon, 2013 ONSC 1542, unresolved issues of disclosure is one of the key factors in delay, unproductive court attendances and getting to a point of serious settlement discussions or, if necessary, in the very few cases that need to go or in fact end up in trial.

[24] Rule 13 of the Rules sets out in detail the financial disclosure obligations of parties involved in a matrimonial dispute. There are Rules which set out the sanctions a party can face for failure to comply with their financial disclosure obligations. In Roberts v. Roberts, 2015 ONCA 450, 2015 CarswellOnt 9247 (Ont. C.A.), the court dealt with the importance of financial disclosure in family litigation. At paras. 11 and 12 the court held:

The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing. Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts on the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled.

[25] Upon reviewing the various Offers submitted by the applicant I am unable to find that the applicant is entitled to full recovery of her costs under Rule 18(14) as spousal support was not granted by the court. Had her Offer been severable, it would have benefitted her in pursuit of her claim for full recovery. However it cannot be overlooked that considerable portions of her Offer to Settle pertained to compliance with prior court Orders. Further, although the parties should be commended for resolving numerous issues on consent, including relief not specifically requested in the motions before the court, nevertheless, it cannot be ignored that the applicant was required to schedule and prepare for the very motions without which, it appears to this court, unlikely that the respondent would have responded without further delay. Under Rule 18(16) I am entitled to take into consideration the Offers and terms even if Rule 18(14) does not apply.

[26] The failure to make an Offer to Settle much earlier by either party is unreasonable behaviour. Sub-rule 2(4) imposes a duty on parties and their lawyers to promote the primary objective of the Rules to deal with cases justly (Rule 2(2)). This includes taking appropriate steps to save time and expense (Rule 2(3)). Offers to Settle play an important role in saving time and expense by promoting settlements, focusing parties and often narrowing issues in dispute. See: Laing v. Mahmoud, 2011 ONSC 6737. I take note that the respondent’s Offer was made at a comparatively late stage of the proceedings. Based on what was ultimately achieved by consent, I am unable to understand the rationale in his behaviour in that regard.

[27] It is observed that the applicant did not achieve success on the spousal support issue but that lack of success can also be attributed to the benefits bestowed upon the applicant by virtue of the court Orders that not only enforced prior court Orders but provided added benefits such as the resolution of the corporate interests and the beneficial entitlement to share in same gained by the applicant. The applicant did not pursue the striking of pleadings. Frequently when pleadings are struck, the moving party can be at a disadvantage because of a paucity of information and documentation on which to pursue an uncontested trial. I do not view the absence of an order striking pleadings as a deterrent to the applicant being found to be the more successful party and entitled to costs.

[28] Sub-rule 24(5) provides criteria for determining the reasonableness of a party’s behaviour in a case (a factor in clause 24(11) (b) above). It reads as follows:

DECISION ON REASONABLENESS

(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept.

Family law litigants are responsible for and accountable for the positions they take in the litigation: Heuss v. Surkos, 2004 CarswellOnt 3317, 2004 ONCJ 141.

[29] Rule 24(11) sets out the factors to be considered by the court in assessing costs. I do not consider disclosure to be a difficult or complex issue especially when the litigants have obtained Consent Orders with respect to this issue. Whereas it may be time-consuming especially when involving corporate entities, nevertheless timely disclosure is a necessary component to achieving an earlier outcome of the litigation short of trial (or perhaps even a motion). Clearly, this is an issue of importance to the parties for all of these reasons. In terms of reasonableness, I have some difficulty with the applicant’s position regarding relief that is requested not being as important as what is contained in the Offer. Pleadings and claims for relief set the tone of the litigation. If a pleading claims relief that is not actively being pursued then perhaps such relief should be removed from the equation to lessen the obstacles to resolution. Apart from that, as a motions judge I am unable to find that the applicant has acted unreasonably. On the other hand, the respondent has simply not complied with court Orders. The fact that he came to the negotiating table on the return of the motions reflects well but he is missing the point when he argues that he has not been found in breach of court Orders. The Consents involving compliance by the respondent with prior Orders of the court speak for themselves. He gains nothing from the fact that the applicant’s litigation strategy was to not pursue the respondent’s pleadings being struck.

[30] With respect to the remaining factors of Rule 24(11), I have no difficulty with the rates of the lawyers. It would have been helpful if the respondent had provided proof of his legal fee expenditures with both prior and current counsel so as to assist the court in ascertaining what his expectations might have been in correlation to what he has paid out to his own counsels. Responding cost submissions should include a Bill of Costs setting out the costs which that party would have claimed on a full, substantial, and partial indemnity basis. If a party opposing a cost request fails to file its own Bill of Costs, a court can take that failure into account as one factor when considering the objections made by the party to the costs sought by any other party. As Winkler J., as he then was, observed in Risorto v. State Farm Mutual Automobile Insurance Co., 2003 CanLII 43566 (ON SC), 2003 CarswellOnt 934, an attack on the quantum of costs where the court did not have before it the Bill of Costs of the unsuccessful party “is no more than an attack in the air.”

[31] I do have difficulty with the quantum of the applicant’s claims related to the costs of obtaining disclosure. It is work that could largely have been done by a law clerk and not a junior lawyer. Relying on the applicant’s affidavit to justify the amount claimed does not assist the court in assessing the costs of this issue. Further, the Acknowledgements requested and received by the applicant to request this non-party information contained a provision that the costs requested by the non-parties be the responsibility of the applicant. I also agree with the respondent’s arguments that the time expended in preparation for various events seems disproportionate.

[32] As an aside, with respect to the issues placed before the court in the motion material, although there has been some divided success, the extent of the respondent’s success was obtained on Consent Orders, a result that could and should have been achieved without requiring considerable expenditure of judicial resources. I do not equate success with not having pleadings struck in circumstances that may well have merited such an order. In the case of Johanns v. Fulford 2010 ONCJ at para. 13 Justice Murray held that, for the purpose of Rule 24(1), “success” is assessed by comparing the terms of an Order against the relief originally requested in the pleadings and against the terms of any Offers to Settle.

[33] I have also considered both Boucher et al. v. Public Accountants Council for the Province of Ontario 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (Ont. C.A.) and Delellis v. Delellis and Delellis 2005 CanLII 36447 (ON SC), [2005] O.J. No. 4345. Both of these cases point out that when assessing costs it is “not simply a mechanical exercise.” In Delellis, Aston J. wrote at paragraph 9:

However, recent cases under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended have begun to de-emphasize the traditional reliance upon “hours spent times hourly rates” when fixing costs....Costs must be proportional to the amount in issue and the outcome. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant.

[34] As stated by Campbell, J. in Livingston v. Livingston, 2014 ONSC 3987:

The case law encourages me to view a costs decision in a summary, flexible and balanced manner, recognizing the wide discretion afforded by Rule 24 of the Rules: see Ostapchuk v. Ostapchuk, 2003 CanLII 57399 (ON CA), 2003 CarswellOnt 1661, [2003] O.J. No. 1733 (C. A.). A costs award must as well represent a fair and reasonable amount, rather than any exact measure of actual costs incurred to achieve the result: see Zestra Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), [2002] O.J. No. 4495 (C.A.). The costs decision must as well reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created: see Pagnotta v. Brown, 2002 CarswellOnt 2666 (Sup. Ct.) and Gale v. Gale, (2006) CarswellOnt 6328.

[35] After examining the factors set out in Rule 24(11) and applying them to the circumstances, positions and offers of this proceeding and applying the principles set out in the caselaw I have referenced, I find that a reasonable, balanced and fair costs Order to recognize the applicant’s success is the sum of $7,500 for the long motion of June 29, 2016 and the sum of $29,500 for the two motions before me on March 22 and May 10, 2017. These amounts are inclusive of disbursements and HST. In addition I award the applicant an additional sum of $6,200 (inclusive of HST and disbursements) for the added costs incurred to track down the applicant’s disclosure, a task which, after all, belonged to the respondent. To not award the applicant this amount would reward the respondent for not complying with the rules requiring disclosure to be made on a timely basis.

[36] In total, the applicant is awarded costs of $43,200 which shall be paid to the applicant from the respondent’s funds being held in trust by the applicant’s counsel.

Justice R. Kaufman

Date: October 24, 2017