Court File and Parties
COURT FILE NO.: FS-16-0256-00 DATE: 2018 08 30 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: GORDON TOZER, Applicant AND: RITA TASSONE, Respondent
BEFORE: Justice Irving André
COUNSEL: J.K. Hannford, for the Applicant T. Roll, for the Respondent
Costs Endorsement
[1] Mr. Gordon Tozer brought an application to set aside a Separation Agreement (“the Agreement”) dated October 30, 2012, based on the allegation that there was significant non-disclosure by Ms. Maria Rita Tassone at the time of the Agreement. Ms. Tassone brought a motion for summary judgment while Mr. Tozer brought a cross-motion to consolidate the civil actions. I heard Ms. Tassone’s motion on March 14, 2018 and subsequently ruled in her favour. Ms. Tassone now seeks costs of $40,203.68 on a full indemnity basis.
Analysis
[2] In determining what quantum of costs can be considered fair and reasonable in this matter, I have considered Rule 24 of the Family Law Rules (“FLR”) O. Reg. 114/99 which sets out the relevant factors, Rule 18 of the FLR which deals with the applicable principles relating to Offers to Settle and the applicable jurisprudence. The paramount principle in the assessment of costs, as the Court of Appeal noted in Hastings v. Hastings, 2017 ONSC 4802, at para. 21, is one of reasonableness. See also Durking v. Cunningham, 2015 ONSC 1741, at para. 15. Applying these principles to this matter, I note the following:
(1) Ms. Tassone is entitled to the costs of the motion given that she was substantially successful.
(2) In my endorsement, I concluded at para. 64 that Mr. Tozer’s application to set aside the Agreement was an attempt to engage Ms. Tassone “in a protracted and expensive litigation to punish her for an aggrieved wrong”. I therefore concluded that Mr. Tozer had acted in bad faith. Rule 24(8) provides that if a party has acted in bad faith, “the court shall decide costs on a full recovery basis and shall order the party to pay them immediately”.
(3) This matter was of moderate complexity and dealt with an important issue concerning the circumstances in which non-disclosure of financial information can invalidate an Agreement.
(4) I have already concluded that Mr. Tozer acted in bad faith when he sought to set aside the Separation Agreement given that he also failed to disclose some of his financial information and he also failed to ask the proper questions after he received Ms. Tassone’s financial disclosure prior to the signing of the Agreement.
(5) Rule 18(14) of the FLR provides that a party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date if certain conditions are met. Two of the relevant conditions are:
a) if the offer relates to a motion, it is made at least one day before the motion date; and,
b) the party who made the offer obtains an order that is as favourable as or more favourable than the offer.
On November 1, 2017, Ms. Tassone made an Offer to Settle to Mr. Tozer which included the following terms:
(i) Mr. Tozer’s application shall be dismissed pursuant to rule 16 of the Family Law Rules;
(ii) The applicant shall pay costs to Ms. Tassone in the amount of $10,000 plus HST.
Rule 18(14) provides that Ms. Tassone is entitled to costs to the date the offer was served and full recovery of costs from November 1, 2017.
(6) Rule 24(11)(d) provides that another factor to be considered in a determination of costs is “the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation of signature of the order”.
[3] Applying Rule 24(11)(d) of the FLR to this matter, I find that the costs claimed by Ms. Tassone’s counsel are excessive and unreasonable for the following reasons:
- It is difficult to ascertain which costs were incurred before or after Ms. Tassone’s November 1, 2017 Offer to Settle.
- Many items of costs claimed are undated, thereby making it difficult to assess the validity or reasonableness of the costs claimed.
- Ms. Tassone’s Bill of Costs fails to particularize which lawyer performed the work for which costs are claimed, thereby making it impossible to assess the reasonableness of the costs.
- Ms. Tassone’s claim of $1,800 court costs for her civil counsel to be present when the court heard her motion for Summary Judgment is excessive given that counsel did make any submissions during the hearing.
- Ms. Tassone’s claim of $9,746.25 for “Civil Counsel fees and disbursements consolidation motion” appears excessive given that there is no breakdown or details concerning these fees. Similarly, there is no breakdown of the over twenty-four hours claimed for “meetings with client, correspondence, memos and telephone conversations”.
[4] In my view, costs in the amount of $20,000 inclusive are fair and reasonable, based on the above-noted factors.
Order
[5] Mr. Gordon Tozer will pay costs fixed in the amount of $20,000 inclusive, to Ms. Maria Rita Tassone, within fifteen (15) days of today’s date.
André J.