Court File and Parties

Court File No.: FS-19-95085 (Brampton) Date: 2021-03-04 Ontario Superior Court of Justice

Between: Roger Steven Pardy, Applicant -and- Esther Mary Kelly, Respondent

Counsel: Nida Hussein, for the Applicant Jerrod Grossman, for the Respondent

Heard: In writing

Before: Chown J.

Costs Endorsement

[1] I have received and reviewed the parties’ costs submissions delivered pursuant to my decision released February 8, 2021 (Pardy v. Kelly, 2021 ONSC 1029).

[2] The parties accuse each other of being unreasonable.

[3] The respondent brought this motion in the belief that the pension is the major asset to be divided and believing that determining its value will help inform her settlement position. This was a strategic choice. In the end I did not agree with the respondent’s position, but it was not an easy call.

[4] The applicant resisted the motion and no doubt this was also his strategic choice.

[5] I do not agree with the respondent’s submission that it was unreasonable for the applicant to require a response to an offer to settle the issue of costs within two days, or to work on the costs submissions without waiting for a response. Also, I find the dockets of applicant’s counsel to be generally reasonable and adequately detailed.

[6] To me, this motion seemed like an odd thing for either party to want to spend money fighting over. Either result would have little impact on the outcome of the equalization issue, but rather only on the parties’ strategic / settlement positions while they get to the finish line on that issue. In any event, the parties made their choices and accepted the risks of their respective strategies for this motion. While I found it odd the parties were fighting this issue out, I had difficulty deciding the outcome so I cannot say I found either party’s position unreasonable. Or rather, neither parties’ position was substantially more unreasonable than the other’s.

[7] The parties exchanged offers to resolve the motion. As the motion required a binary choice for its outcome, neither party could include a meaningful element of compromise in their offer. “These offers to settle a binary issue should not be given great weight as they do not reflect a real element of compromise”: Hogarth v. Hogarth, 2016 ONSC 5131 at para. 23. The Court of Appeal’s decision in Beaver v. Hill, 2018 ONCA 840 is also instructive on this point. In that case, the significant issue in the motion that was the subject of appeal was a constitutional question. The outcome of that question was a binary choice. In allowing an appeal from the motions judge’s costs award, Justice Nordheimer said at para. 15:

The case here was not a situation where the issues could have been settled in any practical way. Either the appellant was going to be able to proceed with his constitutional claim or he was not. There was no way of compromising on that central issue. Consequently, this was not a case where the presence or absence of offers to settle should have played any material role in determining the appropriate quantum of costs.

[8] Here, the applicant achieved a result that was as favourable as or more favourable than his offer to settle, but based on Hogarth and the cases it cites, and based Beaver, I will not order full indemnity costs from the date of the offer.

[9] The claimed rates appear reasonable. The case did not involve a matter of significant importance or complexity. The range of costs claimed is within what the losing side ought reasonably to have contemplated. The respondent’s costs outline suggests she would have claimed $3,323.80 on a full indemnity basis – considerably less than the applicant’s full indemnity claim of $4,895.16 – but the costs outline is dated February 24, 2021 so was prepared after the motion, with the benefit of hindsight, and no doubt with an element of advocacy.

[10] In terms of proportionality, both sides treated the motion similarly so should not find the other side’s position to be disproportionate.

[11] A fair and reasonable amount of costs for the unsuccessful party to pay is $3,250 all-inclusive. The respondent shall pay this amount to the applicant within 30 days.

“Justice R. Chown” Released: March 4, 2021