COURT FILE NO.: FS-19-0115
DATE: 2021 05 13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SANA KHAN
Baqa Rashdi, counsel for the Applicant
Applicant
- and -
STEVE SOARES
Haiyun Wang, counsel for the Respondent
Respondent
HEARD: Written Submissions
COSTS RULING
Justice Thomas A. Bielby
[1] My ruling in this matter was released on April 9, 2021, following a trial in February 2021, that lasted a little over two days.
[2] The major issue was the parties’ respective interests in a residential property. The Applicant claimed a 99% interest in the property and the Respondent, a 50% interest by way of a constructive trust.
[3] I ruled in favour of the Respondent and ordered trust monies resulting from the sale of the property to be paid out in equal shares, subject to a number of adjustments.
[4] As a result, the Applicant received $117,287.46 and the Respondent, $94,450.33.
[5] The Respondent was the successful party and is presumptively entitled to costs. The presumption has not been rebutted.
[6] However, the Applicant submits that the costs claimed are excessive and that throughout the proceedings the Respondent acted in bad faith and intentionally delayed the matter.
[7] Further, the Respondent refused to consent to a sale of the property, and the Applicant was forced to take steps to obtain a court order for a sale. The order was made by Ricchetti J. who left costs of the matter before him to the trial judge but made reference to the Respondent’s conduct in delaying the sale of the matter and allowing expenses on the home to go into arrears.
[8] The Respondent seeks costs on a full indemnity basis from December 2, 2020 when he made an Offer of Settlement which would pay the Applicant over $120,000.00, an amount which exceeded her recovery by a few thousand dollars.
[9] For the period prior to December 2, 2020, the Respondent seeks costs on a substantial indemnity basis.
[10] The Applicant submits that on or about March 20, 2019, the Applicant offered the Respondent a chance to buy out her interest in the property for $100,000.00, an amount less than she received as a result of my ruling.
[11] The Applicant submits that the Respondent, based upon his conduct, should only be entitled to two days of trial costs on a partial indemnity basis, in the amount of $4,949.40. Set off against this amount is the claim for costs of the motion before Ricchetti J. which the Applicant submits are $4,757.15, leaving a net amount for costs payable to the Respondent, of $192.25.
[12] I concur with the submissions of counsel for the Respondent that the two paramount factors to be considered in awarding costs, are success and reasonableness.
[13] I have dealt with success and will now consider reasonableness in regard to the scale and quantum of costs and the parties’ conduct at trial.
[14] I accept the suggestion of Ricchetti J. that the Respondent was guilty of delay in regard to the sale of the house and with respect to allowing expenses on the house to go into arrears. However, I also believe the Applicant’s position at trial that she owned 99% of the property, can also be said to be unreasonable.
[15] While the Applicant ultimately was awarded an amount in excess of her offer to be bought out for $100,000.00, she did not accept the Respondent’s subsequent Offer of Settlement, dated December 2, 2020 ($120,000.00), and her recovery failed to meet or exceed the offer.
[16] While the trial issues were relatively uncomplicated and the trial was completed, via Zoom, in just over two days, the Respondent is certainly entitled to more than $4,949.40, in costs, as suggested by counsel for the Applicant.
[17] The Respondent is entitled to costs at the partial indemnity rate to December 2, 2020, and at the full recovery rate thereafter, as per Family Law Rule 18(14). I have reviewed the Respondent’s cost outline and have adjusted downward the amount of costs sought from December 2,2020, forward. I found the amount claimed for that period to be somewhat excessive and the award set out below I believe to be reasonable and proportionate.
[18] The Respondent is entitled to costs calculated as follows:
Former Counsel, inclusive of HST $3,203.57
Current Counsel to December 1, 2020, inclusive of HST $5,059.58
December 2, 2020 to April 16, 2021, inclusive of HST $16,950.00
Disbursements, inclusive of HST $1,064.61
Subtotal $26,277.76
Less motion costs $4,757.15
Total $21,520.61
[19] The Respondent is awarded costs of $21,520.61, all inclusive, payable by the Applicant.
Bielby J.
Released: May 13, 2021
COURT FILE NO.: FS-19-0115
DATE: 2021 05 13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SANA KHAN
Applicant
– and –
STEVE SOARES
Respondent
COSTS RULING
Bielby J.
Released: May 13, 2021