Rowbotham, O'FerralL and Greckol JJA

14.88: Cost awards

Case Summary

The Respondent, “Ms. Lotoski”, was successful in the underlying Appeal and sought solicitor-client Costs in the amount of $25,268.72 or, in the alternative, enhanced Costs based on Column 5 of Schedule C of the Rules or, in the further alternative, specified Costs in the amount of $20,000.00. Ms. Lotoski also requested that the $20,000.00 posted by the Appellant, “Mr. Lotoski”, as Security for Costs for the Appeal be released as payment for the Costs of the Appeal and his outstanding Court Costs (the “Security”). Mr. Lotoski submitted that each party should bear their own Costs or, alternatively, that he pay Costs in accordance with Column 1 or Column 2.

The Court noted that by default, the successful party is entitled to the Costs of the Appeal in accordance with Rule 14.88(1). The Court found that, per Rule 14.88(3), unless otherwise ordered, it is presumed that the scale of Costs in an Appeal shall be the same as the scale that applies to the Order or Judgment appealed from. The Court emphasized that this presumption, however, can be displaced when warranted by the circumstances.

Ms. Lotoski submitted that Mr. Lotoski engaged in blameworthy conduct by bringing all manner of Applications, failing to provide financial disclosures, ignoring Court Orders, commencing Appeals which did not proceed, and attempting to avoid his child support obligations throughout the proceedings. She contended that despite Mr. Lotoski’s obligation to pay child support, he forced Ms. Lotoski to engage in unrelenting litigation for more than six years to recover these payments. Accordingly, she submitted that Mr. Lotoski’s failure to pay child support constituted reprehensible behaviour, which should attract an award of solicitor-client Costs.

The Court found that, though these circumstances did not merit the sanction of solicitor-client Costs (which are virtually unheard of except when provided for by contract), they did justify an award of enhanced Costs. Accordingly, the Court increased the Costs of the Appeal to Column 3 of Schedule C and directed that the amount posted for Security first be paid out to Ms. Lotoski for the Costs of the Appeal, the underlying Application, and any outstanding Costs before the balance be returned to Mr. Lotoski.

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