Court File and Parties

Court File No.: 16-156 Date: 2018-08-22

Superior Court of Justice – Ontario

Re: Lindsay Nicole Day - Applicant And: Ryan Jeffrey Dwyer - Respondent

Counsel: Phadera Klodner - Counsel for the Applicant Anna L. Towlson - Counsel for the Respondent

Before: James W. Sloan

Endorsement

[1] The parties, with the help of their lawyers, the OCL and court attendances for conferences and motions, resolved this matter without having to proceed to a trial.

[2] Although I did not hear a trial, because there was not a trial, the respondent requested that I make an order with respect to costs. The respondent requests his costs on a partial indemnity scale of between $27,752.85 and $35,924.87.

[3] The respondent has filed a brief approximately 1 inch thick which includes emails and court endorsements going back approximately 2 ½ years.

[4] The applicant submits that since this was a negotiated settlement, the court should not make any order with respect to costs because it has no or limited ability to do so. The applicant does however submit, that her costs from March 1, 2017 to date, should be assessed in the amount of $23,324.67, if the court is disposed to deal with the issue of costs.

[5] In support of her proposition that no costs should be awarded, the applicant relies on the case of Ball v. Ball 2014 ONSC 5754. At paragraph 12 the court stated:

[12] I accept the following summary statement from Orkin, The Law of Costs, 2nd Ed. (2014 Looseleaf) at paragraph 403: “Costs are generally not appropriate for a consent order on the reasoning that the order was not made as a result of adjudication on the merits of the application.” Without adjudication it can be very difficult to know who has had success. As noted in Barber vs. McGee, [2013] O.J. No. 4657 (O.C.J.) at paragraph 23:

Consideration of success is the starting point in determining costs. However, any attempt to determine a “winner” or “loser” in a settlement, is in most cases, complex if not impossible. … Unless there are compelling reasons to do so, costs in the circumstances of the settlement between parties ought not to be awarded by the court. See: Page vs. Desabrais, [2012] O.J. No. ….

Similarly, the court’s ability to determine whether there has been inappropriate behaviour by a litigant based only on submissions, when the court has not adjudicated the merits or received sworn evidence in keeping with the rules of procedural fairness, is also very limited.

[6] The rules with respect to costs were amended some years ago, and the emphasis was placed squarely on the Judge hearing a motion or conference to deal with costs at that time, because he or she was in the best position to do so.

[7] As usual, the parties here do not agree on the facts and both parties’ submissions are essentially diametrically opposed.

[8] Based on the material filed I could spend several hours trying to determine which parties rendition of the facts is correct and it is doubtful from my first reading of the material filed that I would be able to do so.

[9] Therefore based on the reasoning in the Ball case, I decline to make any order with respect to costs.

For future reference, the font used in the respondent’s submissions is so small that it is difficult to read.

Justice James W. Sloan Date: August 22, 2018