Notice of Application (Cost Awards)

R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE, Rule 49

49.06 (1) No statement of the fact that an offer to settle has been made shall be contained in any pleading. R.R.O. 1990, Reg. 194, r. 49.06 (1).

(2) Where an offer to settle is not accepted, no communication respecting the offer shall be made to the court at the hearing of the proceeding until all questions of liability and the relief to be granted, other than costs, have been determined. R.R.O. 1990, Reg. 194, r. 49.06 (2).

(3) An offer to settle shall not be filed until all questions of liability and the relief to be granted in the proceeding, other than costs, have been determined. R.R.O. 1990, Reg. 194, r. 49.06 (3).

49.10 (1) Where an offer to settle,

(a) is made by a plaintiff at least seven days before the commencement of the hearing;

(b) is not withdrawn and does not expire before the commencement of the hearing; and

(c) is not accepted by the defendant,

and the plaintiff obtains a judgment as favourable as or more favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer to settle was served and substantial indemnity costs from that date, unless the court orders otherwise. R.R.O. 1990, Reg. 194, r. 49.10 (1); O. Reg. 284/01, s. 11 (1).

57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs. R.R.O. 1990, Reg. 194, r. 57.01 (1); O. Reg. 627/98, s. 6; O. Reg. 42/05, s. 4 (1); O. Reg. 575/07, s. 1.

MacLeod v. Rayment & Collins Ltd., 2006 CanLII 16363 (ON SC)

[6] The respondents have claimed costs in the amount of $47,469 for fees plus GST and disbursements for a grand total of $53,944.99 for both counsel, on a partial indemnity scale.

[7] In July 2005, the company redeemed the shares of the respondent, Richard Rayment and from that point forward the dispute was essentially between the applicants and Kevin Collins. Although the company and Collins have been separately named as respondents and relief has been sought against each, I see no reason for two counsel on this motion. When I raised this with counsel for the respondents they agreed that there was no conflict necessitating separate counsel and in fact Collins has throughout instructed each of them. Furthermore on the argument of the motion both counsel, not surprisingly took the same position. Although Collins may chose to have separate counsel represent him and the company, as that was not necessary it is not an expense that the applicants should bear. Accordingly I am only prepared to award costs for one firm.

[12] In considering what is reasonable to award for fees, it is usually of assistance to consider the Costs Outline of the opposing party. In the revised Cost Outline submitted by the applicants, the amount for costs claimed for this part of the motion is $44,200.97 of which $4,900.14 is disbursements. Although the disbursements claimed are considerably more than the disbursements incurred by counsel for the respondents, the fees claimed are substantially more than each set of counsel for the respondents. Part of the explanation is that Mr. Jones has claimed at the rate of $350 per hours. The rest of the difference appears to simply be that the applicants’ counsel spent many more hours on this aspect of the motion.

[13] If I did not have the benefit of the Costs Outline of the applicants I would have concluded that the time claimed by the respondents, even on the basis of a single set of counsel was somewhat high. However, as compared to the time spent by counsel for the applicants, the costs claimed are clearly reasonable. I also accept the submission of the respondents that the shifting position of the applicants added to the complexity of the hearing. I must however also take into account, as a factor, that the applicants obtained some small success on the motion.

[14] In all of the circumstances I fix the fees for one set of counsel for the respondents, in the amount of $19,000 inclusive of GST. Accordingly, the respondents are entitled to costs in the amount of $20,340.59. I will leave it to the respondents to decide how to allocate the costs awarded.

Deshevy v. Deshevy, 2018 ONSC 6851 (CanLII)

[21] Rule 38.08 of the Rules of Civil Procedure, RRO 1990, Reg. 194, states that where an application is abandoned or deemed to have been abandoned, the respondent on whom the notice of application was served is entitled to the cost of the application, unless the court orders otherwise.

[22] Rule 57.01 of the Rules sets out a number of factors that the court ought to take into account in exercising its discretion regarding awarding costs.

[23] The modern approach to fixing costs and estate litigation is to carefully scrutinize the litigation and, unless the court finds that one or more public policy considerations applies, to follow the cost rules that apply in civil litigation. Considerations may include where the litigation arose as a result of the actions of the testator or those with an interest in the residue of the estate or where the litigation was reasonably necessary to ensure the proper administration of the estate. If there were reasonable grounds upon which to question the execution of the will or the testator’s capacity in making the will, it is again in the public interest such questions be resolved without costs to those questioning the wills validity. (See Canada Trust v. Gooderham, 2005 CanLII 21091 (ON CA) paras 78-80)

[24] In an unsuccessful will challenge, a plaintiff may be ordered to pay partial indemnity costs to the estate. A plaintiff should be given reason to pause and reflect upon the consequences of unsuccessful litigation before commencing it. (See Beaurone v. Beaurone, (1997), 31 O.T.C. 236 (Gen. Div.))

TSCC No.1600 v. Owners of TSCC No. 1556, et al., 2018 ONSC 521 (CanLII)

[6] The applicant argues that Mr. Hatahet is not entitled to costs because counsel did not bring a costs outline to the hearing of the applications as required by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In the alternative, counsel argues that six hours of time is reasonable in costs and notes that Mr. Hatahet’s counsel’s bill of costs does not break down the hours allocated to various tasks, but rather lumps all the tasks together in one sum.

[7] Costs are in the discretion of the court: s. 131, Courts of Justice Act, R.S.O. 1990, c. C.43. The court is to exercise its discretion taking into account the factors enumerated in r. 57.01.

[8] In my view, Mr. Hatahet is entitled to some measure of costs notwithstanding his procedural failing in not bringing a costs outline to the hearing. Mr. Hatahet participated in successfully resisting the applicant’s application.

[9] However, costs must be fair and reasonable taking into account, among other things, the reasonable expectations of the unsuccessful party: Boucher v. Public Accountants’ Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 at paras. 24 and 38, (C.A.).

[10] In this case, the applicant’s costs outline discloses that it would have sought $7,214.70 in fees plus a $750 appearance fee. T.S.C.C.’s counsel prepared a significant application record, attended examinations, conducted research, prepared a factum and delivered significant oral argument.

[11] In my view, the costs sought by Mr. Hatahet are not fair and reasonable or in accordance with the applicant’s reasonable expectations. I accept the applicant’s argument that reimbursement for six hours of time at counsel’s partial indemnity rate is fair and reasonable.

Desmarais v Fort Erie (Town), 2016 ONSC 4623 (CanLII)

[9] In assessing costs, the court should consider those factors outlined in Rule 57.01(1) of the Rules of Civil Procedure.

[10] Neither party submitted a Rule 49 offer to settle for the court’s consideration.

[11] First, the hourly rate submitted by counsel for the respondent is fair and reasonable given the respondents’ counsel’s years of experience. However, this rate of $300 per hour does not represent the partial indemnity rate.

[12] In the case of Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), the Court held that the overall objective of fixing costs does not begin and end with the calculation of hours times rates. The Court held the overall objective is to fix an amount that is fair and reasonable, having regard to the broad range of factors in Rule 57.01 and what is fair and reasonable for the unsuccessful party to pay.

[15] From the record it is clear that the application was adjourned at least twice at the request of the applicants, that is, on June 9, 2015 and December 4, 2015. There is dispute about a proposed hearing which was scheduled September 18, 2015 and who was to notify the respondent. The respondent prepared for a hearing but was not aware of an adjournment until the scheduled day of court. The respondent submits that the applicants who knew of the adjournment had the responsibility to notify the respondent of the adjournment. The applicants submit that there was a misunderstanding with the trial co-ordinator, and the applicants understood that the trial co-ordinator was notifying the respondent of the adjournment.

[16] Nevertheless, all of the above factors are not sufficient to bring costs within a substantial indemnity scale.

[17] The Supreme Court of Canada has held that conduct warranting substantial indemnity costs must be reprehensible, scandalous or outrageous (Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3).

[18] Considering all of the aforementioned factors, costs should be awarded on a partial indemnity basis. Therefore, on a partial indemnity basis, I order the applicants to pay the costs of the respondent fixed at $18,112.80 all-inclusive and payable within 30 days.