Court File and Parties

COURT FILE NO.: FC-20-189

DATE: 20210609

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Paul Matthew Michael Barth, Applicant

AND:

Tara Anne Taylor, Respondent

BEFORE: Justice D.A. Broad

COUNSEL: Barry T. Paquette, for the Applicant

Brent Balmer, for the Respondent

costs ENDORSEMENT

[1] The parties have been unable to settle the question of costs and have each delivered written submissions respecting the costs of the respondent’s motion to set aside the order of Justice Gordon, obtained on default, dated December 11, 2020.

Positions of the Parties

[2] The applicant seeks costs of the motion, even though the respondent succeeded on having the order of Justice Gordon set aside, on a partial indemnity basis in the sum of $3,911.28, comprised of fees in the sum of $3,457.50, HST on fees in the sum of $449.48 and disbursements inclusive of HST in the sum of $4.30.

[3] The respondent does not seek costs of the motion but submits that, although it is appropriate that she pay the applicant’s costs thrown away as provided in the Endorsement, no costs should be awarded in respect of the motion. In the alternative, she submits that the applicant’s costs of the motion should be fixed and paid “in the cause” as the ultimate result of a determination of the respondent’s claims on the merits will have bearing on the question of whether the applicant should have opposed the motion.

Statutory framework

[4] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that

“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.”

[5] Sub-rule 24(2) of the Family Law Rules provides that, despite the presumption in sub-rule (1) that a successful party is entitled to the costs of the motion, a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs and be ordered to pay all or part of the unsuccessful party’s costs.

Discussion

[6] In the case of Bouzari v. Bahramani, 2013 ONSC 6007 (S.C.J.) Low, J. observed at para. 3 and 4 that “it is usual for a plaintiff to be awarded both the costs of a motion to set aside a default judgment as well as costs thrown away” and “to the extent that a motion to set aside a default judgment has been occasioned by the failure of the defendant to defend although served with originating process, such an award of costs is usual.”

[7] In the case of 1775323 Ontario Inc. v. AAH Gas Inc., 2012 ONSC 6735 (S.C.J.) Reid J. noted at para. 22 that, where the court’s decision to set aside a default judgment may be characterized as an indulgence to the moving party to argue the merits of her or his defence after the default judgment was signed, it is appropriate for there to be a cost of the indulgence to be borne by the moving party by an award of costs of the motion in addition to a requirement to pay the costs thrown away incurred by the responding party.

[8] The respondent cites the case of Candido-Gregorio v. Gregorio, 2019 ONSC 1549 (S.C.J.) as an example of a case where no costs were awarded following a successful motion to set aside an order obtained on default.

[9] I do not find the Candido-Gregoriocase to be helpful in determining the question of costs in the case at bar. It is evident that the applicant/responding party to the motion in that case sought only cost thrown away and not the costs of the motion. The issue was whether the respondent/moving party should be entitled to costs of the motion, having succeeded in having the default order set aside. Gilmore, J. held that para. 28 that it would be unreasonable to have the applicant pay costs in the circumstances, despite the respondent’s success on the motion.

[10] In the case at bar, I find that the applicant acted reasonably throughout. Counsel for the applicant wrote repeatedly to counsel for the respondent seeking delivery of her responding materials, and ultimately wrote to counsel for the respondent advising that if the responding materials were not received by a particular date the applicant would be proceeding without further notice. Moreover, the respondent’s draft materials, including the unsworn affidavit of the respondent, were disclosed to Justice Gordon.

[11] I also find that it was not unreasonable for the applicant to have defended the motion to set aside the default order. It was a close case in terms of whether the respondent would be able to show an arguable defence on the merits, and ultimately, the decision to set aside the default order represented an indulgence to the respondent.

[12] I am persuaded on the authority of Bouzari and Candido-Gregorio that the usual practice of awarding to the party who was not in default both its costs thrown away and its costs of the motion to set aside the default order should apply to the case at bar.

[13] The respondent does not take issue with either the hours spent by counsel for the respondent nor the hourly rate applied. I find that the amount claimed by the applicant was within the reasonable expectation of the respondent.

Disposition

[14] It is ordered that the respondent pay to the applicant costs of the motion fixed on a partial indemnity basis in the sum of $3,911.28 within 30 days hereof

D.A. Broad, J.

Date: June 9, 2021