Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jessie Miller, Applicant
AND:
Sarah Machan, Respondent
BEFORE: Justice J.R. Sproat
COUNSEL: Robert E. Scriven, for the Applicant Carol A. Allen, for the Respondent
COSTS ENDORSEMENT
[1]
Introduction
I have reviewed the written submissions by the parties.
[2]
Background
This two-day trial dealt only with the value of the matrimonial home. Each side called one expert witness. Mr. Miller’s expert opined that the value was $260,000. Ms. Machan’s expert opined that the value was $414,000. I determined the value to be $392,000.
[3]
Analysis
Ms. Allen’s Cost Submissions indicated that she spent 54.3 hours on this matter and that her full indemnity rate is $365 per hour. The costs claim includes a number of dockets not related to the value of the matrimonial home. I would reduce the hours claimed to 45 hours for that reason. Mr. Scriven spent 49 hours on this matter, so I find that the 45 hours spent by Ms. Allen is reasonable.
4Mr. Scriven submits that Mr. Miller “beat” two offers to settle and that he should be entitled to costs. I do not agree. Ms. Machan’s February 7, 2019 offer was that Mr. Miller make an equalization payment of $100,000. I do not know if this only related to the value of the matrimonial home. The March 17, 2021 offer by Ms. Machan specifically requested $57,000 calculated on the basis that the value of the matrimonial home was $414,000.
5Mr. Scriven suggests that the March offer “indicates a complete inflexibility and unwillingness to compromise”. Mr. Miller’s position would be a lot stronger if he had made an offer that approached $414.000. There is no indication that he made any offer. As such, he went to trial contending the home was worth only $260,000, whereas I found it to be worth $392,000. Ms. Machan was clearly the successful party.
6Mr. Scriven also submitted that Mr. Miller had some success at trial because the home was valued at $22,000 less than Ms. Allen contended. I do not agree. Success at trial is primarily a function of whether a party obtained a favourable result compared to offers made by the other side.
7Ms. Machan did not better her March 17, 2021 offer. Mr. Miller did not engage in any egregious conduct that would merit full indemnity costs.
[8]
Disposition
I conclude that it is reasonable that Mr. Miller pay 75 percent of the fees incurred by Ms. Machan for trial. As such, I award her costs as follows:
Fees $12,319 (45 x $365 = $16,425 x 75% = $12,319)
HST $1,601
Disbursements $743.40
HST on Disbursements $18.85
Total $14,682.25
SPROAT J.
Date: May 21, 2021