Court File and Parties
COURT FILE NO.: 105/16 DATE: 2018-03-08
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jeff Cosentino, Applicant AND: Jennifer Cosentino, Respondent
BEFORE: The Honourable Mr. Justice A. Pazaratz
COUNSEL: Mr. S. Heeley, Counsel, for the Applicant Mr. R. Startek, Counsel, for the Respondent
HEARD: March 8, 2018
Endorsement
Background
1Today was set for argument of a Summary Judgment Motion brought by the Applicant father.
2The primary subject matter of this case has been parenting issues in relation to five year old Christian.
3The essence of the father’s Summary Judgment Motion was that the parties had basically settled all issues by way of “Minutes of Understanding” on January 24, 2017.
a. The Applicant stated that since that date the Respondent has basically been inattentive to finalizing this matter, with the result that the matter ended up being placed on the trial sittings of June 11, 2018.
b. The Applicant stated that the parties have been abiding by all of the terms of the settlement document (with a minor mutually agreed to adjustment) and that there’s really no need to have a trial.
c. The purpose of the Summary Judgment Motion was basically to secure a final order (since the issues appear resolved) and avoid having to prepare for and attend the June trial.
d. The Applicant proceeded under Rule 16 because his position was that there is no genuine issue requiring a trial.
4The Applicant prepared and filed a notice of motion, a detailed affidavit, a factum, and a book of authorities, all in support of the request for Summary Judgment.
5Despite the Rule 16 requirement that the Respondent file a responding affidavit if she disagrees with the request for Summary Judgment, the Respondent filed no affidavit materials; no factum; and no book of authorities.
The Costs Dispute
6When the matter was called at 10:00 a.m. this morning, both counsel advised me that the parties are settled on all substantive terms, and that they were having discussions on the issue of costs.
7They subsequently returned to present a draft order dealing with all substantive terms on a final basis. In the draft order submitted, paragraph 17 (relating to costs) was scratched out.
8Counsel initially suggested that they file written submissions in relation to costs. I offered to hear costs submissions today, to streamline the process and help bring this matter to a conclusion. Counsel agreed and stood down briefly to prepare.
9When they returned, Mr. Heeley presented a Bill of Costs and made submissions in support of his position that the Applicant should be entitled to costs in the sum of $7,375.41. That calculation included “partial indemnity costs” up to August 16, 2017 – when the Applicant filed a Rule 18 Offer to Settle – and then “substantial indemnity costs” thereafter.
10Mr. Startek then made responding submissions, during which he raised an interesting threshold issue.
11Mr. Startek submitted that paragraphs 1 to 16 of the Applicant’s Offer set out the substantive parenting terms and that paragraph 17 of the Applicant’s Offer stated “There shall be no order as to costs.” He submitted that the Offer was a package deal and had never been withdrawn. Accordingly, he took the position that paragraph 17 of the Applicant’s offer precludes that Applicant from now seeking any costs.
12I agree with Mr. Heeley’s response to this:
13Today’s “settlement” was not created by the formal acceptance of the Applicant’s Rule 18 offer. Rule 18 sets out the process by which an offer is accepted, and the August 16, 2017 offer was never formally accepted (even though there had been no time limitation in the offer, so the Respondent could have accepted it any time up to the commencement of today’s hearing).
14Today’s “settlement” was created by the submission of both counsel that they were presenting to me a draft consent order. Paragraphs 1 to 16 of the draft are basically identical to paragraphs 1 to 16 of the Applicant’s offer. But when counsel presented the draft, they specified that the settlement they were presenting did not include a settlement of the costs issue. They very specifically advised me that the issue of costs was still alive. That’s why they initially proposed dealing with it by written submissions. That’s why we stood down to allow counsel to prepare for submissions this morning.
15Accordingly, I reject Mr. Startek’s submission that the issue of costs is no longer “alive” because of paragraph 17 of the Applicant’s offer. If the Respondent had wanted to take advantage of the “no order as to costs” paragraph, all she had to do was sign the part at the bottom of the offer, signifying acceptance.
16Mr. Startek submitted that if any costs are to be ordered, it should be closer to perhaps $1,500.00.
Analysis
17I have considered all of the submissions.
18The Applicant was substantially successful in relation to all of the relief sought in his Application. The Respondent did not achieve the results she sought in her Answer.
19The Applicant served a valid and appropriate offer to settle, quite some time ago. It is to his credit that he gave the Respondent the open-ended option of accepting on a “no costs” basis.
20I am satisfied that the Applicant acted reasonably throughout and diligently in attempting to secure a resolution of this matter.
21I am not satisfied that the Respondent acted reasonably or diligently with respect to resolving the matter. She did not attend for two Settlement Conferences and a Trial Management Conference. Mr. Heeley is not seeking costs in relation to any step at which costs were previously dealt with (or should have been dealt with). But her lack of participation in court dates intended to promote resolution constitutes unreasonable behaviour.
22The Applicant acted reasonably in bringing a Summary Judgment Motion to try to bring this matter to a conclusion in an efficient manner, rather than wasting the parties’ resources and the court’s resources with a multi-day trial scheduled for June 2018. As soon as the Respondent was served with the Summary Judgment Motion she should have responded and cooperated in settling this matter. Notably, she still had the option of accepting that August 16, 2017 offer which included “no costs” in paragraph 17.
23I have considered the “full indemnity” consequences of Rule 18, and the various factors set out in Rule 24.
a. The Applicant was successful.
b. He obtained a result consistent with his Offer.
c. He behaved reasonably. The Respondent did not.
d. The parenting issues were important, and should have commanded serious attention by both parents.
e. The Applicant was put to unnecessary expense bringing this Summary Judgment Motion to get the Respondent’s attention.
f. The time spent and lawyer’s rates are reasonable.
24Modern costs rules are designed to foster three fundamental purposes:
to partially indemnify successful litigants for the cost of litigation;
to encourage settlement; and
to discourage and sanction inappropriate behaviour by litigants: Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905 (Ont. C.A).
25Particularly where children’s issues are involved, parties have an obligation to promote a fair resolution in a reasonable and cost-effective manner.
26I am satisfied that the Applicant complied with that responsibility, and that the Respondent did not. As a result, I find that the Applicant is entitled to compensation for costs.
Disposition
27Final order per draft submitted except delete paragraph 14 and add to paragraph 16: “Annual disclosure to include copies of tax returns and notices of assessment to be provided by June 30.”
28The matter is removed from the June 11, 2018 trial sittings.
29The Respondent shall pay to the Applicant costs fixed in the sum of $7,000.00 inclusive of HST and disbursements.
Pazaratz, J.
Date: March 8, 2018