The decision for this Motion was given in August of 2021 and the following decision deals with the court’s determination of costs following the Motion. The Applicant argued he should receive costs totaling $30,000 since he was awarded more than his offer to settle, the motion was very important to the parties, he conducted himself in a reasonable manner and the Respondent did not, and his time preparing for the motion was reasonable.

The Respondent believed that she should be entitled to 50% of her legal costs because she made a reasonable offer to settle, the changes ordered were those that the Respondent did anyways, the Applicant engaged in aggressive litigation, the Applicant’s claim for costs is excessive and the Applicant acted unreasonably.

THE LAW

Under Rule 18(14), when a party receives a decision that is more favourable than their initial offer to settle, they are entitled to full recovery of costs. Under Rule 24(12) the court must consider the reasonableness and proportionality of several factors, the most important of which are (1) the parties behaviour, (2) the time spent by each party and the related legal fees, (3) offers to settle.

ANALYSIS

In assessing offers to settle, the Judge noted the Applicant’s offer was very closely related to what the Judge inevitably ordered and the Respondent’s offer was not reasonable, therefore this factor weighed in favour of the Applicant. The Judge then looked to the outcome of the case, which poses the question: which party got what they asked for? Though the Respondent claimed she was already doing the changes that were so ordered, it was the Applicant who received what he wanted. Regarding the conduct of the parties, the Respondent claimed that the Applicant made false claims and untruthful allegations, but the Judge believed the concerns that were raised by the Applicant appeared to be legitimate. Further, the Judge notes the Respondent claimed the Applicant was engaged in very litigious behaviour which he did not agree with based on many reasons, one of which as the fact that Applicant did not pursue the case until the Respondent insisted. The Judge noted the parties conduct is a significant factor in favouring an award of costs to the Applicant in this case. Finally, the Judge looked to the time and money that was spent on the litigation itself. Though the Respondent spent significantly less on her litigation, the Applicant’s legal team was required to draft materials for an urgent motion and prepared for an appearance which the Respondent adjourned, both of which add substantial legal costs to the Applicant.

The judge concluded that the Respondent should be required to pay costs to the Applicant in the amount of $25,000.

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