Court File and Parties

COURT FILE NO.: Carey v. Carey 2019 ONSC 7214 COURT FILE NO.: 3483/14 DATE: 2019-12-12

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ROBERT CAREY, LYDIA CAREY-PATEL, DAVID AELLO Applicants

– and –

DOUGLAS CAREY, ARTHUR CAREY, JENNIE CAREY and THE OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE Respondents

Counsel: Richard K. Watson, for the Applicants Matthew R. Harris and Yonatan Lipetz for the Respondents, Douglas Carey and Arthur Carey Michael Freeman for the Respondent, Jennie Carey

HEARD: March 8, 9, May 17, 18, June 8, November 16, 2018, January 28 and 29, March 28 and 29 and April 17, 2019

FINAL COSTS ENDORSEMENT

kurz j.

Introduction

1. I granted three substantive orders during the course this proceeding under the Substitute Decisions Act, 1992, S.O. 1992, c. 30, regarding guardianship of 91 year-old Jennie Carey (“Jennie”). My orders of July 26, 2018 and January 29, 2019 were interlocutory. My order of April 26, 2019 was final. These are my reasons for the costs of this proceeding.

Background

2. The parties are adult children and a brother (David Aello) of Jennie. On July 26, 2017, after five days of trial, I made an interim order that divided guardianship of Jennie between Robert Carey, one of the Applicants (“Robert”); his brother, Arthur Carey (“Arthur”), one of the Respondents; and another brother, Edward Carey (“Edward”). Edward is a former Applicant who, at his request, was removed as a party at the commencement of trial. My July 26, 2017 order contained the following terms of interim guardianship for Jennie:

3. Robert, Arthur and Edward were appointed Jennie’s guardians for property.

4. Edward, who lives in the United States, was required to provide a $2,500 bond to Mr. Harris, counsel of record for the Respondents.

5. I directed Robert and Arthur to work together to prepare a plan for Jennie’s personal care, including contact with the Applicants. They were to present it to the Office of the Public Guardian and Trustee (“OPGT”) and if they are unable to agree, the court for determination.

6. I directed the three property guardians to work out a budget for Jennie’s upkeep and the preservation of her home sale proceeds. They were to present the budget to the OPGT and if unable to agree on it, to me.

7. The balance of the trial, including costs, was adjourned in order to allow the guardians to work together on their plans for Jennie’s personal care and property. I reserved the right to make a final decision if they were unable to agree.

8. I had hoped that those terms would assist the parties to resolve this proceeding but that did not occur. Nonetheless, on January 29, 2019, the parties agreed to my further interim order dealing with financial disclosure to Robert and Edward as well as joint administration of Jennie’s bank accounts. They also agreed on an updated capacity assessment and a monthly budget for Jennie, that would be paid to Arthur. Again, those terms did not resolve the issues and the matter returned for the completion of the trial and a final order.

9. Recognizing that the parties could not work together, that Jennie was best left in Arthur’s care, but that Arthur should not have control of Jennie’s finances, I made my final order of April 26, 2019. In that order, I terminated Arthur and Edward as Jennie’s interim guardians of property, leaving Robert as Jennie’s final, sole guardian of property. I also removed Robert as one of Jennie’s guardians of personal care and replaced him with Edward. That left Arthur and Edward as the final sole guardians of Jennie’s personal care. I gave instructions for both guardianships.

10. In my endorsement of April 26, 2019 (2019 ONSC 2616), I called for the parties to make their costs submissions in writing. They did so. However, as the Respondents pointed out, the Applicants were seeking costs of motions:

• whose costs had already been determined;

• whose costs were adjourned to the hearing of a motion that was ultimately decided in their favour by Gibson J. (who struck the Respondent’s pleadings on December 21, 2017) but whose order was later consensually set aside; and

• in the Divisional Court for leave to appeal and stay the December 21, 2017 Gibson J. order that was ultimately set aside on consent.

6. Following my review of the parties’ first set of written costs submissions, I asked the Applicants to respond to the Respondents’ concerns and for the Respondents to reply. They did so.

7. Having reviewed those supplementary submissions, I issued my second preliminary costs endorsement. In that endorsement, I pointed out that there appeared to be some merit to each of the Respondent’s concerns. But I was unable to fully determine the issues on the materials before me. I required the parties to appear before me to deal with those issues. I also directed Mr. Watson to prepare an updated bill of costs/costs outline for the Applicants, excluding the costs of the motions in question.

8. Counsel have now appeared before me. Mr. Watson has provided me with a revised costs outline. In that document, he reduces his original full indemnity costs claim of $266,098.35 to $112,075.31. However, in his oral submissions, Mr. Watson informed me that he does not wish to me rely on his revised costs outline. He only supplies it because I required its preparation in my second preliminary costs endorsement. He relies only on his first costs outline, which he orally amended as set out below.

9. Although the Applicants’ costs outlines each call for full indemnity costs, Mr. Watson argues for what he described as “solicitor and client costs”. That scale of costs is now referred to as substantial indemnity costs, which is lower than full indemnity costs (formerly solicitor and his/her own client costs). Yet both of Mr. Watson’s costs outlines referred to a claim for full indemnity costs (while also providing figures for substantial and partial indemnity costs).

10. Mr. Watson’s argument is that his client is entitled to that enhanced scale of costs of the entire proceeding because of the Respondents’ misconduct, both before and during the course of this proceeding. As a result, he argues for the “solicitor and client” costs of the entire proceeding. The Applicants also seek a “top up” of the already determined costs of previous motions that only granted them partial indemnity costs. This would allow the Applicants to obtain the full benefit of an enhanced costs award for the entirety of the proceeding (see Polish National Union of Canada Inc. v. Palais Royale Ltd (1998), 1998 CanLII 7132 (ON CA), 163 D.L.R. (4th) 56 (Ont. C.A.), at para. 15). Mr. Watson conceded that the “top up” is only available if I grant his clients “solicitor and client costs” of this entire proceeding. Without such an order, I cannot disturb the previously determined costs awards.

11. The Applicants argue that prior to the commencement of this proceeding, the Respondents acted improperly by preventing them from visiting Jennie. The Respondents also controlled her assets in a manner that led to her funds disappearing and a new mortgage appearing on her home. This behaviour required the Applicants to commence this proceeding.

12. The Applicants further argue that the misconduct continued during this proceeding. The Respondents resisted granting the Applicants access to visit Jennie or making full financial disclosure. The non-disclosure led to the December 21, 2017 order of Gibson J., striking the Respondents’ pleadings. Those pleadings were later restored on consent after the Respondents moved for leave to appeal and obtained a stay of the Gibson J. order. The consent order (which I granted) set aside the December 21, 2017 order of Gibson J. That allowed the contested trial to proceed before me.

13. The Applicants also seek a “top up” of the already determined costs of previous motions that did not grant them full or substantial indemnity costs. This would allow them to obtain the full benefit of a substantial indemnity award for the entirety of the proceeding (see Polish National Union of Canada, at para. 15). Mr. Watson conceded that the “top up” is only available if I grant his clients “solicitor and client costs” of this entire proceeding. Without such and order, I cannot disturb the previously determined costs awards.

14. But because they obtained Gibson J.’s order to strike based on the Respondent’s failure to make full disclosure, the Applicants argue that they should now be entitled to the costs of that motion. They further argue that they are entitled to the costs of the motion(s) and attendances before Gibson J. of June 16, 2016 and Gray J. of November 10, 2016 that ultimately led to the December 21, 2017 order to strike. It is not clear whether the three attendances were all on the same motion or whether there were three separate motions. As there is little difference between the two for my purposes, I will treat them as if they were three separate motions. The presiding judge in each of those two prior attendances adjourned the motion before him upon terms to the hearing of the long motion and reserved costs to the judge hearing the ultimate long motion.

15. In the June 16, 2017 attendance, Gibson J. granted the adjournment request of Jennie’s counsel. As a consent term of the adjournment, Gibson J. directed Arthur and Douglas to provide an accounting of how they dealt with Jennie’s property. He also allowed Jennie’s counsel to prepare and file her own motion materials. Gibson J. refused the Applicant’s request for a capacity assessment, deferring the issue to another day.

16. On November 10, 2016, Gray J. heard part of the motion, deferring the remainder to a long motion date. Gray J. ordered some but far from all of the financial disclosure that the Applicants had sought and a capacity assessment of Jennie. He also granted all of the Applicants at the time but David Aello (i.e. Robert, Edward, David and Lynn Carey as well as Lydia Carey-Patel) some limited access to Jennie. Those Applicants had not seen her in about two years.

17. While Gray J. gave no written reasons for his decision (and I have been provided with no oral ones), he amended the Applicants’ draft order and incorporated it into his endorsement. In doing so, he crossed out many sub-paragraphs of the Applicants’ draft order and hand wrote a number of additions or substitutions to its original terms. I have received no submissions from either party that would tell me any more about the arguments raised or the relative success of that motion. That being said, it appears that success in the motion was somewhat divided although not necessarily equally so. The Applicants obtained some disclosure and their first access to Jennie. However I have heard no submissions on the level of success that the Applicants enjoyed on that motion or any offers to settle that preceded it.

18. Gray J. reserved the costs of the hearing before him to the judge hearing of the long motion. As set out above, that long motion was heard by Gibson J. on December 21, 2017. He struck the Respondent’s pleadings because of their failure to comply with previous disclosure orders and reserved his costs decision. But before Gibson J. could deal with costs, the Respondents moved in the Divisional Court for leave to appeal that order.

19. On February 15, 2018, the Respondents brought a motion before Myers J., sitting in the Divisional Court, to stay the hearing of this application. Without such a stay, and with the Respondents’ pleadings struck, this application would have proceeded on an uncontested basis. Rather than stay the hearing, Myers J. stayed the order of Gibson J. until the motion for leave was heard. He left the issue of how the application would proceed in the face of the stay to the parties and this court.

20. On February 16, 2018 the parties agreed, and I granted a consent order, setting aside Gibson J.’s December 21, 2017 order to strike. They also agreed that the Respondents would withdraw their motion for leave to appeal Gibson J.’s order. The consent order contained no reference to the costs of any of the three motion attendances in question. As I pointed out in my second preliminary costs endorsement, it was open to them to agree that the costs of those proceeding be dealt with in some particular manner, including by the trial judge. But they did not do so. Thus, there is no extant order reserving the costs of any of the three motion attendances to trial.

21. The Applicants argue that I should nonetheless grant them the costs of the three motions. They cite three cases, to which I will refer below, in which the moving party received costs of un-argued motions settled in their favour.

22. During the course of the argument of this motion, Mr. Watson withdrew two claims for costs set out in his first costs outline. First, he withdrew his original claim for the costs of the Divisional Court motions. He had claimed 55.7 hours or $27,850 in full indemnity costs for those motions. Mr. Watson also withdrew a claim for 22.4 hours or $11,200 in full indemnity costs of preparation for an April 27, 2017 motion in which costs were ordered against his client. He made no reference to the one hour attendance he was claiming for that motion.

Issues

23. The Applicants’ request for costs raises the following issues:

24. Are the Applicants entitled to their costs of this proceeding?

25. If so, on what scale should those costs be awarded?

26. Is the Applicant entitled to the costs of any of the motions that preceded the trial?

27. What if anything is the amount of costs to which the Applicant is entitled?

Issue No 1: Are the Applicants entitled to their costs of this proceeding?

24. The jurisdiction to grant costs of a proceeding arises from s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which reads as follows:

Costs

131 (1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

25. The factors that a court determining costs must consider are set out in Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which reads as follows:

Factors in Discretion

57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs.

26. Costs may be awarded against a successful party in any step or proceeding (R. 57.01(2)).

27. In Corsi Sr. v. Fogler, Rubinoff LLP, 2011 ONSC 993, Himel J. offers a helpful summary of the principles that apply to the determination of costs. She writes:

9 Generally, costs follow the event and the successful party is entitled to its costs incurred in bringing or defending the action: see Bell Canada v. Olympia and York Developments Ltd. (1994), 1994 CanLII 239 (ON CA), 17 O.R. (3d) 135 (C.A.). The fixing of costs is not a mechanical exercise based solely upon a calculation of hours and rates. It involves a consideration of a number of factors set out in Rule 57.01 to determine what is appropriate in the circumstances. The objective is to fix costs in an amount that the court considers as fair and reasonable for the unsuccessful party to pay in a particular proceeding rather than what the actual costs were of the successful litigant: see Boucher v. Public Accountants Council for the Province of Ontario (2004) 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.); Zesta Engineering v. Cloutier (2002), 2002 CanLII 45084 (ON CA), 164 O.A.C. 234 (C.A.); Moon v. Sher, (2004), 2004 CanLII 39005 (ON CA), 246 D.L.R. (4th) 440 (C.A.).

28. In the unreported case of T.B. v. Halton Regional Police Service, Milton S.C.J. file No. 1730/15, December 2, 2019, Fitzpatrick J. summarizes the relevant criteria for the determination of costs as follows:

[2] It is well established that in performing its costs analysis, the Court should consider an hours and fees based calculation in accordance with the costs grid but should then consider whether, in all the circumstances, the result is fair and reasonable, including the expectations of the parties concerning the quantum of costs: see Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (C.A.) and City of Toronto v. First Ontario Realty Corporation (2002), 2002 CanLII 49482 (ON SC), 59 O.R. (3d) 568 at 574 (S.C.).

[3] In other words, the mechanical mathematics of multiplying rates by hours is not sufficient. Reasonableness must be the overriding directive and inform all costs awards. Reasonableness must consider proportionality and, of course, must be assessed in the context of the nature of the proceeding, the character and magnitude of the dispute, the complexity of the factual and legal issues and any other fundamental factors the Court may be directed to when performing a meaningful costs analysis.

29. Here, the Applicants argue that they were substantially successful in this proceeding in that Robert is final sole guardian of Jennie’s property and they have access to their mother. Thus, they should presumptively be entitled to costs of the proceeding. The Respondents counter that success is divided and accordingly that no costs should be ordered. They point out that I referred to the notion of divided success in my final endorsement, stating that the results of the trial “…appear at first blush to be at least mixed …”

30. They add that they were successful in both allowing Jennie to remain living with Arthur, a position that the Applicants opposed throughout this proceeding. They add that Arthur, along with Edward (with whom Robert refused to work), is appointed a guardian of Jennie’s personal care, to the exclusion of Robert. Further they stated that they did not oppose the Applicant’s contact with Jennie at any point during this trial.

31. The principle that divided success may lead to no order as to costs is supported by the decision of the Court of Appeal for Ontario in Lowndes v. Summit Ford Sales Ltd., 2006 CanLII 11654 (ON CA), [2006] O.J. No. 1438 (C.A.). There, the court stated “… the general rule that where success on appeal is substantially divided, as in this case, an award of costs of the appeal will not be made.”

32. In my interim decision, I attempted to arrange for both sets of parties to work together as co-guardians. That did not work. I ultimately found it necessary to divide the guardianship responsibilities between the parties. To that extent, success is divided. However, I recognize that this determination ignores the fact that this application had to be brought in order to shine a light on Jennie’s situation by allowing contact with her other children and ensuring that there was transparency in her finances. To that extent, the Applicants were more successful than the Respondents. In sum, there was divided but not equally divided success. The Applicants are entitled to some costs of this proceeding.

Issue No. 2: On what scale should those costs be awarded?

33. The Applicants argue for enhanced (“solicitor and client”) costs throughout this proceeding. They request full indemnity or in the alternative substantial indemnity costs. They point to the behaviour of the Respondents in withholding Jennie from contact with the Applicants, and the Respondents’ questionable financial dealings with Jennie’s finances. The Applicants’ claim for enhanced costs has another component: if successful, they can claim a “top up” for all previously determined motions.

34. The Respondents point to a number of factors that should militate against an award of enhanced costs. They argue that the remedy is a rare one, to be invoked in only the most exceptional circumstances. Here, those circumstances do not apply, as my final order is an equivocal one, dividing guardianship duties between the two sides in this litigation. The Respondents further argue that the Applicants made unproven allegation of “elder abuse” including “abuses of the person of Jennie”, fraud, and forging of documents.

35. The Respondents argue that the Applicants should be sanctioned by dismissing or reducing their claim to costs for making such unproven claims. They also point to conduct by the Applicants and their counsel which caused the unnecessary expenditure of costs, including tardiness during the trial, missed time lines and what they characterize as an unnecessary mid-trial motion for the disclosure of Jennie’s will.

36. In Corsi Sr. v. Fogler Rubinoff LLP, Himel J. offered a helpful summary of the principles that apply to the determination of the appropriate scale of costs. She wrote:

The appropriate scale of costs:

10 In determining the appropriate scale of costs to be awarded, the partial indemnity scale is intended to provide indemnification for costs reasonably incurred in the course of the action. In the usual circumstances, an award of costs on a partial indemnity basis is the appropriate award to impose on the unsuccessful party: see Foulis v. Robinson (1978), 1978 CanLII 1307 (ON CA), 21 O.R. (2d) 769 (C.A.); Mortimer v. Cameron (1994), 1994 CanLII 10998 (ON CA), 17 O.R. (3d) 1 (C.A.). In Wasserman, Arsenault Ltd. v. Sone (2002), 2002 CanLII 45099 (ON CA), 164 O.A.C. 195 (C.A.) at para. 4, the court wrote that "partial indemnity means just that -- indemnification for only a part, or a proportion, of the expense of the litigation."

11 Costs on a substantial indemnity scale are usually reserved for those "rare and exceptional" cases, where the conduct of the party against whom costs is ordered may be considered reprehensible or where there are other special circumstances such as an offer to settle within the meaning of Rule 49.10 that justify costs on the higher scale. An award of costs on a substantial indemnity scale is reserved for special and rare circumstances: see McBride Metal Fabricating Corp. v. H & W Sales Co. (2002), 2002 CanLII 41899 (ON CA), 59 O.R. (3d) 97 (C.A.).

37. In Davies v. Clarington, 2009 ONCA 722, Epstein J.A., writing for the Court of Appeal for Ontario, confirmed at para. 28 the principle “…that elevated costs are warranted in only two circumstances. The first involves the operation of an offer to settle under rule 49.10, where substantial indemnity costs are explicitly authorized. The second is where the losing party has engaged in behaviour worthy of sanction.” The conduct that the court referred to was “reprehensible” or amounting to an abuse of process.

38. In McBride Metal, cited above, Abella J.A., as she then was, clarified on behalf of the Court of Appeal for Ontario that egregious behaviour, whether causing the litigation and/or during the course of litigation, can be the foundation of an order of substantial indemnity costs.

39. Despite the conduct of the Respondents that preceded this application, and their failure to provide the disclosure that led to Gibson J.’s order of December 21, 2017, I do not find that the Applicants are entitled to solicitor and client costs throughout this proceeding. I say that because:

40. They were unable to prove two of their main contentions: that Jennie was physically mistreated by the Respondents and that she should not live in the Respondents’ care.

41. They did not ameliorate their contention that Jennie must be moved, even after they had the opportunity to observe her during their visits and even after they had the opportunity to visit her at Arthur’s home.

42. With one exception, the Applicants’ plans for Jennie’s power of attorney or guardianship for personal care were not in her best interests. The sole exception was in the increase in her access to the Applicants, which the Respondents ultimately did not oppose.

43. I have already found that Robert was less than fully cooperative with his interim co-guardians after my interim decision of July 26, 2017. It is unfortunate, although perhaps not surprising, that the personal animus between the main litigants in this proceeding, Robert and Arthur, did not abate at any time during this proceeding. That animosity applied as well to Robert’s unwillingness to work with Edward after Edward chose to support the Respondents. While the ill-feeling was mutual, particularly between Robert and Arthur, it is one of the reasons that this litigation was as protracted as it was. The Applicants must take a share of the responsibility for that state of affairs.

44. The Applicants never made an offer to settle this matter, while the Respondents at least made an effort (even though their offer is not sufficient for me to award them costs).

45. Accordingly, I do not find that the Applicants are entitled to enhanced full or substantial indemnity costs of this proceeding.

Issue No. 3: Is the Applicant entitled to the costs of any of the motions that preceded the trial?

“Top up” Costs

41. Dealing first with the claim for “top up” costs: the Applicants have conceded that their only entitlement to such additional costs arises if I grant them some form of enhanced costs. I have not done so. Accordingly, as they concede, they are not entitled to “top up” costs of motions where costs were already decided.

Costs of the 3 Interlocutory Motions or Attendances

42. Regarding the three interlocutory motions or attendances in which costs were first reserved to a long motion and then the order in that long motion was consensually set aside, the Applicants make two arguments. First, they argue for my jurisdiction to make the order following trial even though the issue of costs was not put over to trial. Second, they argue, in a submission first made during the course of oral argument, that I should ignore their first costs outline. That document sets out the costs that they claim for the three motions. Instead they assert that I should treat 90% of the costs of the motions as costs of the proceeding itself.

43. In support of their argument for my jurisdiction as a trial judge to grant the costs of a motion that were not reserved to me, the Applicants refer to three cases. In each of those cases, the parties settled a motion before it was argued and without having dealt with the issue of costs of the motion. The ratio of the three cases is encapsulated in the following comment of Akbarali J. in Menzel v. Makagon, 2017 ONSC 6180: “…it is fair to award costs of a consent motion where it was reasonable to bring the motion, and for costs incurred in preparing, serving and filing the motion.”

44. In Rothman v. Kaba Ilco Corp., 2012 ONSC 6412, Perell J. granted the moving parties, collectively described as Kaba, the costs of four un-argued motions. He wrote at para. 19 that “Kaba has been put to wasted expense because the manner in which the Plaintiffs have prosecuted this action, and Kaba, practically speaking, was the successful party for having brought or resisted the un-argued or abandoned motions.” Perell J. relied on no particular rule or authority in making his decision to award costs. Rather, he assumed his jurisdiction to do so in the circumstances.

45. In Corsi Sr. v. Fogler, Rubinoff LLP, cited above, Himel J. granted the moving party the costs of a settled but un-argued summary judgment motion. As the moving party was successful in the settlement, which gave the moving party a consent summary judgment order, Himel J. granted it the costs of the motion. She found that the settlement came after the materials were prepared and filed. Like Perell J. in Rothman, Himel J. referred to no specific rule or authority that dealt explicitly with the situation she faced.

46. The circumstances here are significantly different than those of the successful moving parties in the Applicants’ three cases. Those cases do not stand for the authority that, as the trial judge, I have the jurisdiction to determine of costs of interlocutory motions when those costs have not been reserved to me. I say this for the following reasons:

47. As set out above, nothing in any of the endorsements on the three motions or the order setting aside the December 17, 2017 order reserves any costs to the trial judge. I have been presented with no authority for the proposition that, as the trial judge, I have the jurisdiction to determine the costs of a motion that was never before me or reserved to me as the trial judge.

48. In the Applicant’s three cases, the costs decision was made by the judge scheduled to hear the motion, had it not settled. Here, I was not the motion judge for any of those motions.

49. There is no settled, un-argued motion here that simply requires a costs order. All three motions in question were argued to some extent (even as terms of an adjournment) and orders were made, although no order granting costs to either party was made.

50. There is no evidence before me nor am I in a position to say who was the more successful party in the first two motions or what offers were communicated in advance of the motions.

51. The court has no jurisdiction to award costs for a prior contested event for which costs were decided (see Stilwell v. World Kitchens Inc., 2013 ONSC 5360, at para. 80). In the first two motion attendances for which costs are now sought, the decision was that costs were reserved to the judge hearing the long motion. Presumably the costs of those motions depended on the Applicants’ success in the ultimate long motion.

52. In his December 21, 2017 endorsement, Gibson J. reserved on the issue of costs. However, Gibson J.’s order was set aside on consent. That left the status of the motion as if it had not been argued, let alone won by the Applicants. Accordingly, it is as though Gibson J., the judge on the long motion, had ordered no costs with respect to the motion (see: Delrina Corp (cob Carolian Systems) v. Triolet Systems Inc, (2002) 2002 CanLII 45083 (ON CA), 165 O.A.C. 160 (C.A.), at para. 36). As Leitch J. stated at para. 82 of Stilwell v. World Kitchens Inc.:

… where motions have resulted in an order making no express provision for costs or relating to costs, the law is clear that no costs shall be awarded or assessed for steps taken in relation to such motions. See: Orkin, The Law of Costs, (2nd ed.), at paragraph 402; Delrina Corp. v. Triolet Systems Inc. (2002), 2002 CanLII 45083 (ON CA), 165 O.A.C. 160 (C.A.); and Radvar v. Canada (Attorney General) (2006), 145 A.C.W.S. (3d) 208 (Ont. S.C.J.).

7. If anything, the ultimate terms of the settlement resulted in success for the Respondents. With their settlement of the motion, they succeeded in avoiding the striking of their pleadings and an uncontested trial.

8. The jurisdictional concerns that I raise above could have been avoided had the parties and their counsel turned their minds to the issue when they consented to an order setting aside Gibson J.’s order. But they failed to do so. That being the case, it is not open to me at this stage to determine the costs of the motion(s) and attendances.

9. If I am incorrect in finding that I lack jurisdiction to order the costs of the three motions/attendances, I would nonetheless exercise my discretion not to grant costs for the preparation and attendance on those motion(s). To the extent that the two previous motions judges did not make findings regarding costs, the Applicant’s entitlement to costs of those two motions depended on their success in the long motion. Being ultimately unsuccessful in that long motion, I would not order the costs of any of the three attendances or preparation for them.

Argument that 90% of the Motions Costs are Really Costs of the Proceeding

49. I deal next with the argument that 90% of the costs of the three motions are, despite the clear wording of the Applicant’s original costs outline, really costs of the proceeding. In offering this extemporaneous argument during the course of his oral submissions, Mr. Watson was unable to explain how he came up with that 90% figure. Why not 89% or 91 % or any other figure? He was unable to articulate an answer.

50. The greatest challenge to this argument is the fact that Mr. Watson represented in his original costs outline that the costs he claimed were incurred in preparing for and attending on those motions. In that regard, he was explicit.

51. For the June 16, 2016 motion before Gibson J., Mr. Watson claimed that he incurred 42.6 hours to:

Prepare Motion heard June 16, 2016 – meetings and communications with clients and counsel of responding parties; legal research; prepare Affidavits and all Motion materials; preparation for hearing.

52. For that same motion, Mr. Watson also claimed 3.7 hours of lawyer, Paul Robson’s time, for “legal research and preparation of motion materials”. He also claimed 4 hours of lawyer, Joy Casey’s time, for “Preparation of Motion materials”. All of those preparation hours totalled 50.3 hours. Added to that was 1.0 hour for the actual attendance on June 16, 2016, to speak to the adjournment.

53. For the November 10, 2016 attendance before Gray J., Mr. Watson claims 19.9 hours of his time to “Prepare Motion heard November 10, 2016”. He adds 1.5 hours for the actual attendance.

54. For the December 21, 2017 attendance, Mr. Watson claims 10.2 hours of his time for:

Preparation for December 21, 2017 Hearing (on Motion of November 29, 2017) Legal research; review, compile and list all defaults by Respondents in compliance with undertakings and court orders; prepare all Motion materials; preparation for hearing.

55. Mr. Watson adds another 2.9 hours of his time for further preparation for that motion and only 1.0 hour for his attendance at court.

56. After removing the costs of all of the motions he had claimed in his first costs outline (which included the costs of motions in which he was seeking a “top up”), Mr. Watson claims the following in his supplementary costs outline:

• $82,650 for “full indemnity costs”,

• $74,385 for substantial indemnity and

• $61,987.50 for partial indemnity costs of the proceeding.

These amounts are based on 165.3 hours of lawyers’ time.

“Balance of Costs” of Sproat J. Motion of October 2, 2015

57. In addition, Mr. Watson claims the “Balance of Costs” reserved by Sproat J. on October 2, 2015. At that time, Sproat J. granted the Applicants the sum of $2,000 against the Respondents and a further $1,000 against Jennie, “if demanded”. Sproat J. described these figures as 25% of the $14,065 costs claimed. He stated that the remaining 75% of those costs represented costs of the proceeding rather than the motion. Those costs were reserved as costs of the proceeding. In other words, they were actually reserved to the trial judge. The Respondents do not question that proposition. Unfortunately, nothing in either of the Applicant’s two costs outlines tells me the basis of the claim; i.e. the work performed, or the hours incurred to perform it.

58. In sum, I believe that the only costs available for me to consider are those of the proceeding, including those explicitly reserved to the trial judge by Sproat J. Those costs are set out in the Applicant’s Revised Costs Outline.

Issue No. 4: What if anything is the amount of costs to which the Applicant is entitled?

59. In considering the factors in R. 57.01(1) and the comments of the Court of Appeal for Ontario in Boucher and Zesta Engineering, it is clear that my task is to determine an amount of costs that is fair, reasonable and proportional for the unsuccessful party to pay in the proceeding. It is not, as the court stated in Zesta Engineering, “an exact measure of the actual costs of the successful litigant.” In Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519, Nordheimer J.A., speaking for the court, stated that "proportionality and reasonableness are touchstone considerations to be applied in fixing the amount of costs." While that statement was made in the context of the unique Family Law Rules, the emphasis on proportionality and reasonableness are equally apposite to the determination of costs in civil matters.

60. Here, I have determined that the Applicants are entitled to costs on a partial indemnity basis. The Applicant’s claim for such costs in the Revised Costs Outline is $68,316 in fees, $8,881.08 in HST and $6,760.72 in disbursements, for a total of $83,957.80. However, as stated above, I am not bound by a simple calculation of hours worked or rates charged.

61. Of the amount claimed for partial indemnity costs in the Revised Costs Outline, I grant the Applicants $50,000 plus disbursements of $6,760.72, for a total of $56,760.72. I do so because:

62. As stated above, success was divided, although the Applicants were ultimately more successful than the Respondents. That divided success reduces the Applicant’s claim to costs;

63. The Applicants’ insistence on continuing to offer plans for Jennie’s care that were clearly not in her best interests, even after it became clear that she was well treated and happy where she was, unduly lengthened this proceeding.

64. Both parties are responsible for the failure to work together as guardians, as I originally ordered on an interim basis. That state of affairs required the trial to return for a final determination. That factor unduly lengthened these proceedings.

65. It should not have been necessary for the costs portion of this proceeding to require two sets of written submissions plus a half day of oral submissions. The fault for that state of affairs can be squarely laid at the feet of the Applicants for reasons set out in my two preliminary costs endorsements. The Respondents justly submit their own bill of costs for just the costs portion of the proceeding. They seek costs of $9,283.80 for substantial indemnity costs and $7,316.24 for partial indemnity costs. While the amounts claimed for each scale of costs seems excessive, and I see the submissions as being symbolic or pointing to a set-off rather than a realistic claim for costs, the point is made.

66. To the extent not stated above, I also rely on the factors set out above for not granting costs at an enhanced scale.

Conclusion

62. I order that the Respondents pay costs of this proceeding, fixed at $56,760.72 to the Applicants. This amount is payable within 90 days.

Kurz J.

Date: December 12, 2019