Cost Awards (Civil Contempt)

R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE

COSTS OF ENFORCEMENT

60.19 (1) A party who is entitled to enforce an order is entitled to the costs of the following steps on a partial indemnity scale, unless the court on motion orders otherwise:

1. An examination in aid of execution.

2. The issuing, service, filing, enforcement and renewal of a writ of execution and notice of garnishment.

3. Any other procedure authorized by these rules for enforcing the order. O. Reg. 206/02, s. 12 (1).

(1.1) For greater certainty, subrule (1) includes costs associated with the electronic filing or issuance under these rules of a writ of seizure and sale or any documents relating to the issuance or enforcement of a writ of seizure and sale. O. Reg. 43/14, s. 18.

(2) A party entitled to costs under subrule (1) may include in or collect under a writ of execution or notice of garnishment,

(a) $50 for the preparation of documents in connection with issuing, renewing and filing with the sheriff the writ of execution or notice of garnishment;

(b) disbursements paid to a sheriff, registrar, official examiner, authorized court transcriptionist or other public officer and to which the party is entitled under subrule (1), on filing with the sheriff or registrar a copy of a receipt for each disbursement;

(c) an amount determined in accordance with Tariff A for conducting an examination in aid of execution, on filing with the sheriff or registrar an affidavit stating that the examination was conducted; and

(d) any other costs to which the party is entitled under subrule (1), on filing with the sheriff or registrar a certificate of assessment of the costs. R.R.O. 1990, Reg. 194, r. 60.19 (2); O. Reg. 206/02, s. 12 (2, 3); O. Reg. 168/05, s. 2 (1); O. Reg. 260/05, s. 13; O. Reg. 170/14, s. 19.

(3) A sheriff or registrar may fix costs under clause (2) (c),

(a) if all the parties consent; or

(b) if the lawyer’s fee does not exceed $2,000, exclusive of harmonized sales tax (HST). O. Reg. 168/05, s. 2 (2); O. Reg. 55/12, s. 7.

(4) Under clause (3) (b), the sheriff or registrar shall fix costs of $750 plus disbursements. O. Reg. 168/05, s. 2 (2).

(5) When costs are to be fixed by the sheriff or registrar under subrule (3), the party who is entitled to costs shall file a bill of costs with the sheriff or registrar. O. Reg. 168/05, s. 2 (2).

Royal Bank of Canada v. Yates Holdings Inc., 2007 CanLII 23601 (ON SC)

[5] The Reasons for Decision in respect of the motion for contempt were released April 2, 2007. The reasons for Decision were sent by mail on that date to Mr. and Ms. Yates. As stated above, a date of April 18, 2007 was set for sentencing.

[6] Mr. Yates claims in his affidavit of May 1, 2007 that he did not attend at the post office and receive the April 2, 2007 Reasons for Decision until April 19, 2007. Hence, he says, he did not know of the April 18, 2007 hearing until after the event. He claims (para. 10 of his affidavit) that he expected to receive the Reasons for Decision by e-mail. There is added confusion on this point by an incorrect reference to delivery by e-mail made by counsel for the Bank in her e-mail to Mr. Yates April 20, 2007. There is further confusion caused by the Order dated April 18, 2007 (drafted by counsel for the Bank) ordering that the sentencing hearing be adjourned to May 2, 2007 and ordering that the Bank send certain materials to Mr. and Ms. Yates electronically.

[7] Mr. and Ms. Yates were not sent the Reasons for Decision of April 2, 2007 by e-mail but rather, by regular mail. I have no recollection whatsoever of any arrangement to have the Reasons for Decision to be transmitted to the Yates by e-mail. Counsel for the Bank states that no such arrangement was given. (The only arrangement as to communication by e-mail was between counsel for the Bank and Mr. and Ms. Yates in respect of their communications.). No transcript was available at the hearing May 2, 2007.

[8] Given these unfortunate circumstances it was appropriate and fair to allow Mr. and Ms. Yates, through their counsel, to make submissions on the merits of the costs award April 18, 2007and to consider the disposition of costs anew, but without setting aside the costs award pending such reconsideration.

[9] The inference reasonably made from the entirety of the evidentiary record in the proceedings at hand is that Mr. and Ms. Yates have attempted to avoid the Bank’s realization as a creditor of Mr. Yates by shifting assets into the name of Ms. Yates and hiding assets.

[10] Because the contempt proceeding is against both Mr. and Ms. Yates it is apparent that the assets of Ms. Yates are subject to any judgment in respect of costs

[11] The Bill of Costs submitted by the Bank on a full indemnity basis totals $91,620.92. Mr. and Ms. Yates submit that costs in the magnitude of $10,000.00 to $15,000.00 would be appropriate. The quantity of costs awarded is the main issue raised by counsel for Mr. and Ms. Yates May 2, 2007, in respect of the Bank’s motion for costs. Their counsel does not dispute that a costs judgment should be on a basis of joint and several liability in respect of Mr. and Ms. Yates.

[12] In my view, and I so find, the Bill of Costs for $91,620.92 is fair and reasonable considering all the circumstances. A great deal of work was required of the Bank’s counsel in the course of bringing the motion for contempt and the hearing thereof.

[13] It was made known to Mr. and Ms. Yates throughout the hearing October 11, November 28 and December 11, 2006 that the Bank would be seeking costs if ultimately successful.

[14] The Bank has been billed for, and paid, the amount in question to its counsel. It is appropriate and fair that the Bank be awarded costs on a ‘full indemnity’ basis. The Bank should not be out-of-pocket for legal costs incurred and necessitated because of the contempt of Mr. and Ms. Yates in respect of the July Order.

[15] Costs should normally follow the event, and in the circumstances of the matter at hand, on a full indemnity basis. Given the finding of contempt, the award of costs on a full indemnity basis is an appropriate and logical consequential result.

[16] In my view, and I so find, costs are properly awarded to the Bank in the claimed amount of $91,620.92. I confirm the costs award of April 18, 2007 in this amount. The judgment for costs, confirmed hereby, is applicable nunc pro tunc and the Costs Judgment of April 18, 2007 entered in this Court remains in full force and effect.

Aurora (Town) v. Lepp, 2020 ONCA 528 (CanLII)

[22] In his written reasons, the application judge encouraged the parties to resolve the issues of costs given “what some might perceive as a measure of divided success.” The parties could not agree, and they filed submissions.

[23] After reviewing the costs submissions, the application judge subsequently released a very brief endorsement. In that endorsement, the application judge reiterated that success was divided, and he awarded no costs to either party.

[24] With respect, the application judge erred in denying Aurora costs on the basis that success was divided. Although Mr. Lepp’s action was permitted to proceed and he was not declared a vexatious litigant, the application judge disregarded Aurora’s “overall success”: see Wesbell Networks Inc. v. Bell Canada, 2015 ONCA 33, at para. 21. The practical effect of the application judge’s decision is that Mr. Lepp’s claim has been trimmed down considerably and there is a condition that restricts him from initiating any further motion, action, or proceeding against Aurora, its elected officials, employees, former employees, or legal counsel, without first obtaining leave of this court. Although it did not obtain the designation it sought under s. 140(1), Aurora was, nevertheless, the more successful party because it obtained aggressive case management of a pared-down claim as well as an order restricting further litigation. Therefore, Aurora was entitled to its costs of the application.

[25] We will now consider the appropriate scale of costs. In its costs submissions, Aurora had requested full indemnity costs in the amount of $30,668.07. Aurora argued that Mr. Lepp’s conduct was so reprehensible and outrageous that it justified a departure from the general rule that partial indemnity costs are awarded to the successful party. We disagree. We see no basis to depart from the general rule. Although Aurora had greater success given the orders obtained, we note that the application judge did not ultimately grant the s. 140(1) designation or the r. 2.1.01 motion in its entirety.

[26] Having reviewed the costs outlines and the factors set out in r. 57 of the Rules, we fix the costs below at $15,000, inclusive of fees, disbursements, and applicable taxes.

Walchuk v. Houghton, 2016 ONCA 839 (CanLII)

[1] For the reasons reported at 2016 ONCA 643, this court allowed the appeal by the defendant from a procedural ruling by Harper J. , with reasons reported at 2015 ONSC 1291, regarding a contempt motion brought by the plaintiff, Walchuk. This court ruled the defendant’s failure to bring documents ordered by the motion judge to be brought to the examination could not support a finding of contempt, because an examination in aid of execution was a proceeding intended to be stayed by operation of s. 69.3 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3. This court ordered $11,500 to the appellant which, as a result of previous costs orders, netted to the amount of $10,000, all-inclusive to be paid by the respondent to the appellant.

[2] However, the parties neglected to address the court on the costs of the proceeding before the motion judge. The appellant asks the court to deal with those, even though the motion judge has not yet made a costs award. The usual, though not invariable, practice in this court is to reverse the costs order in the court whose decision was successfully appealed.

[3] The appellant seeks costs in the amount of $20,000 all-inclusive against a full indemnity bill including taxes and disbursements totalling about $28,000, all related to post-bankruptcy litigation. The appellant also states that in June, 2016, he offered to settle all costs below at $35,000 but the respondent did not accept the offer.

[4] We do not agree with the respondent that the motion judge should be requested to set costs, since this would only add time and expense. The respondent argues that the appellant should not receive any costs, but if costs are awarded in relation to the contempt motion, “then it should certainly be a lot less than the $10,000 he has already been awarded in costs for the entire appeal proceeding.”

[5] There is no reason that costs should not follow the event, as in the normal course. Given the comparative reasonable time requirements of the original motion and the appeal, we set costs of the motion before Harper J. at $15,000 all-inclusive, payable by the respondent to the appellant.