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).

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.