2013 ONSC 4722, 2013 ONSC 4722

CITATION : Ojo v. Mason, 2013 ONSC 4722 COURT FILE NO.: FS-01-985-TT DATE: 20130711 SUPERIOR COURT OF JUSTICE - ONTARIO RE: OTEGBOLA OJO Applicant/Appellant AND: JULIA MASON Respondent BEFORE: JUSTICE KRUZICK COUNSEL: Edwin A. Flak and Marysun P. Cunha for the Applicant Ross Macdonald for the Respondent COSTS ENDORSEMENT NATURE OF THE CLAIM [ 1 ] The respondent seeks costs of $73,065.80 following an appeal to set aside the final award of arbitration made by Mr. Gerald Sadvari on October 28, 2009.

The appellant, by way of application, also sought a fresh order for custody, child support and spousal support, based on the evidence at the arbitration hearing. The appeal and application were dismissed. analysis [ 2 ] The award under appeal was sustained, meaning that the respondent was entirely successful. Counsel for the respondent submits the costs sought consist of 80 per cent of the respondent’s total legal bill. Alternatively, the respondent seeks $63,932.58, being 70 per cent of the total bill.

The argument made is that this is consistent with Arbitrator’s Award to her of 70 per cent of the legal fees. [ 3 ] On behalf of the appellant, it is conceded that he failed in his appeal. He submits costs should be fixed at $50,000, and that he should be permitted time to pay over five months. [ 4 ] This appeal was meticulously argued for three days by counsel for the appellant. On the last day counsel for the respondent was brief and to the point in his argument. [ 5 ] Counsel for the respondent submits that the appellant exercised no restraint or discretion in the conduct of the appeal.

He further argues that no effort was made to limit the volume of material put before the court. I cannot help but agree. The exercise of cross referencing the source documents to which I was referred in argument took an inordinate amount of time. In the end it did not help the appellant.

Counsel for the respondent, on the other hand, exercised good judgment in his references to related material and exercised economy and good practical sense. [ 6 ] I am guided by Rule 24 of the Family Law Rules and the presumption that a successful party is entitled to costs. [ 7 ] The respondent’s position is that the appellant behaved unreasonably. I refer to rule 24(5), which guides the court on the issue of reasonableness: 24

(5) DECISION ON REASONABLENESS – In deciding whether a party has behaved reasonably or unreasonably, the court shall examine, (

a) the party’s behavior in relation to the issues from the time they arose, including whether the party made an offer to settle; (

b) the reasonableness of any offer the party made; and (

c) any offer the party withdrew or failed to accept.

[ 8 ] Even though the respondent made no offer(

s) to settle, I am not able to find that the conduct of the respondent in response to the claim here was in any way unreasonable. The appellant’s approach was however excessive. While he made a formal offer in August 2011 it was significantly less favourable than the resulting order. [ 9 ] In the exercise of my discretion in awarding costs I bear in mind the provisions of rule 24(11): 24

(11) FACTORS IN COSTS – A person setting the amount of costs shall consider, (

a) the importance, complexity or difficulty of the issues; (

b) the reasonableness or unreasonableness of each party’s behavior in the case; (

c) the lawyer’s rates; (

d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order; (

e) expenses properly paid or payable; and (

f) any other relevant matter. [ 10 ] As set out above, the respondent claims $73,065.80 in costs. In my review of the Bill of Costs, attached to the submissions the total fees and disbursements inclusive of HST total $91,332.25. [ 11 ] Counsel for the appellant argues that the amount claimed may not be factually well founded given correspondence from the respondent’s counsel of April 9, 2013, where the respondent sought to settle fees at $57,750 plus HST.

Given respondent counsel’s statement in that letter, “while a Bill of Costs is a useful tool to argue the issue of costs I would not have thought it necessary to negotiate the issue of costs between the lawyers on file”, it appears the Bill was formally (and perhaps, more precisely) prepared when counsel were not able to settle the issue of costs.

The respondent was obviously attempting to settle costs, as I encouraged them to do. [ 12 ] I am mindful of the fact that the Rules encourage three purposes: 1. to indemnify successful litigants to the extent possible; 2. to encourage settlement; and 3. to discourage inappropriate litigation. conclusion [ 13 ] After my review of the submission and the Bill of Costs, costs should be to the respondent paid by the applicant in the amount of $70,000 inclusive of HST and payable as follows: $25,000 within 30 days; $25,000 within 60 days; $20,000 within 90 days.

From the submissions I gather that over a million dollars have been spent by the parties in this litigation, thus far. This is a sad commentary on the process that has taken far too long, cost the parties well beyond its value and in the end may still not be over for these parties. KRUZICK J. Date: July 11, 2013