Court File and Parties

COURT FILE NO.: FS-19-19713 DATE: 2020-06-16 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Christina Nicole Burrell Applicant – and – Darryl Burrell Respondent

Counsel: Mary Anne Ducharme, for the Applicant Darryl Burrell, acting in person

HEARD: Written submissions

Costs Endorsement

Bondy J.

A. OVERVIEW

[1] This is a costs endorsement following a motion by the applicant to compel the respondent to close the sale of the matrimonial home to a third party.

[2] The applicant, Christina Nicole Burrell (“Ms. Burrell”), and the respondent, Darryl Burrell (“Mr. Burrell”), owned a home at 1260 Gore Road in Harrow, Ontario. The applicant obtained an order that the house be sold. The applicant and respondent together entered into an agreement of purchase and sale to sell that property to a third party. The sale was scheduled to close May 29, 2020. There was no suggestion of the respondent having signed the offer under duress.

[3] During the week preceding the scheduled closing of the sale, the respondent made it clear that he was refusing to sign the necessary closing documents. His stated reason was fear of the COVID-19 virus. According to the lawyer with carriage of the sale transaction, the purchasers would have a cause of action against both the applicant and respondent if the transaction failed to close. As a result, the applicant brought a motion to compel the closing of the transaction in accordance with the previously agreed-upon terms.

[4] During the hearing, the respondent acknowledged Facebook posts that he had been involved in that suggested the COVID-19 crisis was a hoax. The respondent did not deny believing the COVID-19 was a hoax but rather maintained he is entitled to his beliefs. While I agreed that the respondent was entitled to believe as he sees fit, he is not entitled to misrepresent those beliefs to the court. I found that the respondent had also misrepresented other facts to the court.

[5] In the end, I concluded that the respondent’s refusal to close was designed to achieve goals in this litigation that are unrelated to his health. For example, to gain a negotiating advantage with respect to other issues between the parties, or to punish the applicant for her past failures to give in to his demands.

[6] Accordingly, the applicant was the successful party in the motion to sell the property in accordance with the terms of the agreement of purchase and sale.

B. COSTS SUBMISSIONS

1) The Applicant’s Position

[7] The applicant seeks full indemnity costs of $4,310.95 all-inclusive.

2) The Respondent’s Position

[8] The respondent submits that a costs award of $2,000 all-inclusive would be appropriate. He maintains that he only wanted fairness in the process. He argues that it does not make sense that the costs related to enforcing the original court order to sell the home would cost about double what that original order did. The respondent argues that the original order was as a result of a hearing in court while my order was the result of a hearing by conference call.

C. ANALYSIS

1) Introduction

[9] Modern costs rules are designed to advance five purposes in the administration of justice:

(1) to indemnify successful litigants for the costs of litigation, although not necessarily completely;

(2) to facilitate access to justice, including access for impecunious litigants;

(3) to discourage frivolous claims and defences;

(4) to discourage and sanction inappropriate behaviour by litigants in their conduct of the proceedings; and

(5) to encourage settlements.

See Vester v. Boston Scientific Ltd., 2017 ONSC 2498, [2017] O.J. No. 2079; Hamilton-Wentworth (Regional Municipality) v. Hamilton-Wentworth Save the Valley Committee, Inc. (1985), 51 O.R. (2d) 23 (H.C.J.); Fellowes, McNeil v. Kansa General International Insurance Co. (1997), 37 O.R. (3d) 464 (Gen. Div.); Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.); Somers v. Fournier (2002), 60 O.R. (3d) 225 (C.A.); British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371; 1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), 82 O.R. (3d) 757 (C.A.); Reynolds v. Kingston (City) Police Services Board (2007), 2007 ONCA 375, 86 O.R. (3d) 43 (C.A.).

[10] The jurisdiction to award costs is found in s. 131 of the Courts of Justice Act, R.S.O. 1990 c. C.43. The discretion granted by that section is subject to the overriding principle of reasonableness: see Davies v. Clarington (Municipality), 2009 ONCA 722, [2009] O.J. No. 4236, at para. 52. Similarly, at para. 26 of the decision in Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), Armstrong J.A. held that the fixing of costs is not to be regarded as a mere mechanical exercise. Rather, “…the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.” The failure to address the overriding principle of reasonableness can produce a result that is contrary to the fundamental objective of access to justice: see Boucher at para. 37; Delellis v. Delellis, [2005] O.J. No. 4345, at para. 9. Consistent with that observation, costs in family law matters must be proportionate to the issues and results, given that the primary objective of the rules is to enable the courts to deal with cases justly.

[11] In summary, as was observed by Nordheimer J.A., “… proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs”: see Beaver v. Hill, 2018 ONCA 840, [2018] O.J. No. 5412, at para. 12.

[12] The reasonable expectations of the parties are also a relevant factor: see Boucher, at para. 38. Those expectations can be measured by two methods. To be clear, they are not mutually exclusive. The first method is by the unsuccessful party revealing what their costs were, and the second method is by application of the principles delineated in the rules: see Hague v. Liberty Mutual Insurance Co., [2005] O.J. No. 1660, [2005] O.T.C. 290, at para. 15.

[13] As to the first method, the respondent was self represented and accordingly did not provide a bill of costs. As a result, I was unable to obtain any guidance through this method.

2) Analysis

24(1) Successful party presumptively entitled to costs

[14] The applicant was the successful party and accordingly is presumptively entitled to costs.

24(4) Successful party who has behaved unreasonably

[15] The applicant behaved reasonably and accordingly this factor does not apply.

24(5) & 24(12) The reasonableness or unreasonableness of each party’s behaviour in the case

[16] Rule 24(5) provides that 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.

[17] See my comments below related to reasonableness of the parties.

24(6) Divided success

[18] The applicant was completely successful and accordingly this factor does not apply.

24(7) Absent or unprepared party

[19] The respondent was not prepared in that he did not offer any properly supported basis in law for the position that he was taking.

24(8) Bad Faith

[20] I reiterate that I found the respondent had misrepresented his fear of the COVID-19 virus in order to achieve other, nefarious ends.

24(10) Costs to be decided at each step

[21] I was not given any reason to depart from this general rule nor can I think of any. Accordingly, I find it appropriate to decide costs regarding the motion at this time.

24(12)(a)(i) The reasonableness and proportionality of each party’s behaviour as it relates to the importance and complexity of the issues

[22] I found the applicant’s conduct reasonable and proportionate to the importance and complexity of the issues. The applicant’s motion was necessary in order to avert a lawsuit for failure to close the real estate transaction in accordance with its terms.

[23] As said above, the respondent did not offer any basis in law for the position he was taking. I found the respondent’s evidence from time to time inconsistent with the preponderance of evidence that I believed. I found that he either lacked meaningful insight into the consequences of his decisions, or in the alternative, simply did not care about those consequences. I found that by waiting until the last minute, the respondent had created an artificial emergency. Accordingly, I found his position unreasonable in the extreme.

24(12)(a)(ii) The reasonableness and proportionality of the time spent by each party as it relates to the importance and complexity of the issues

[24] I also found the time spent by the applicant reasonable and proportionate to the importance and complexity of the issues. I reiterate the respondent did not provide any basis in law for the position he was taking. It follows that the time taken by him was wasted or, said another way, unreasonable and disproportionate.

24(12)(a)(iii) The reasonableness and proportionality of any written offers to settle, including offers that do not meet the requirements of rule 18 as it relates to the importance and complexity of the issues

[25] I am not aware of any offers to settle and, accordingly, this factor does not apply.

24(12)(a)(iv) the reasonableness and proportionality of any legal fees, including the number of lawyers and their rates as it relates to the importance and complexity of the issues

[26] I reiterate the applicant seeks all-inclusive costs of $4,310.95 on a full indemnity basis. Those costs include $3,815 for legal fees, and $495.95 for HST on legal fees.

[27] In this case, applicant’s counsel, who has been at the bar for 35 years, seeks $350 per hour on a full indemnity basis. I find that hourly rate reasonable.

[28] I say that because the Costs Subcommittee of the Civil Rules Committee suggests a maximum of $350 per hour for lawyers with 20 years or more experience when fixing partial indemnity costs [emphasis mine] see: Geographic Resources Integrated Data Solutions Ltd. v. Peterson, 2013 ONSC 1041, [2013] O.J. No. 717, at para. 13. Price J. suggests that based upon the Bank of Canada Inflation Calculator the 2014 equivalent of the hourly rates in the Cost Bulletin is $409.16 for lawyers of over 20 years' experience: see J.J.A.S. Catering and Banquet Inc. v. Vesia, 2015 ONSC 1417, [2015] O.J. No. 1151, at para. 21. Applicant’s counsel's partial indemnity equivalent of the requested full indemnity fees are well below that amount.

[29] I also found the time claimed appropriate in the context of the work undertaken.

24(12)(a)(v) The reasonableness and proportionality of any expert witness fees, including the number of experts and their rates as it relates to the importance and complexity of the issues

[30] This factor does not apply.

24(12)(a)(vi) The reasonableness and proportionality any other expenses properly paid or payable as it relates to the importance and complexity of the issues

[31] See my comments below as to disbursements.

24(12)(b) Any other relevant matter

[32] The heading "other matters" includes the ability to pay costs. See, for example, Biant v. Sagoo, [2001] O.J. No. 3693, [2001] O.T.C. 695, at paras. 17 & 21; C.A.M. v. D.M. (2003), 67 O.R. (3d) 181 (C.A.), O.J. No. 3707, at para. 42.

[33] There was no suggestion that the respondent is unable to pay costs and accordingly this factor does not apply.

24(12.1) Any claim for costs respecting fees or expenses shall be supported by documentation satisfactory to the court

[34] I found the documentation provided by applicant’s counsel to be reasonable in the context of this particular motion.

3) Conclusions as to fees

[35] For all of the above reasons, I find this to be one of those very rare cases in family law where an order for full indemnity costs related to fees is appropriate. For the reasons above, I find an order for $4,310.95 all-inclusive fair and reasonable in the circumstances of this case.

4) Disbursements

[36] There were no disbursements claimed.

D. ORDER

1) Costs

[37] Costs are fixed at $4,310.95 all-inclusive payable by the respondent Darryl Burrell to the applicant Christina Nicole Burrell.

2) Time

[38] These costs are payable forthwith. If the net proceeds of the sale of 1260 Gore Road Harrow, Ontario have not yet been distributed, the costs shall be paid from the respondent’s share of those net proceeds.

3) Interest

[39] This costs order shall bear interest in accordance with the Courts of Justice Act, R.S.O. 1990 c. C.43.

Christopher M. Bondy Justice

Date: June 16, 2020