SAWATZKY v SAWATZKY

The Application concerned conflicting positions on the appropriate Costs to be awarded following a Streamlined Trial. Both parties acknowledged that there was mixed success in the matter, but argued that they achieved greater success than the other party and as such were entitled to Costs.

The Court noted that the parties achieved mixed success, with the Plaintiff achieving clear success on several issues and mixed success occurring on the other issues. While Rule 10.29 provides that a successful party is entitled to Costs, Justice Oviatt noted that in family matters, success means ‘substantial success’ rather than ‘absolute success’, and that in determining substantial success the Court must look to the relative significance of the issues rather than the total number of issues won. In this matter, Justice Oviatt noted that the Plaintiff had achieved a greater degree of overall success on the issues when their relative importance was considered.

Rule 10.33 sets out a number of factors for the Court to consider in determining how Costs should be awarded. In addition to the degree of success, the Court also considered the conduct of the parties. The Defendant argued that the Plaintiff had engaged in litigation misconduct in causing delay in the proceedings. The Court noted that the Plaintiff had caused some delay due to a lack of preparation for a case management conference and a failure to meet filing deadlines, but that this behaviour did not rise to litigation misconduct.

The Defendant submitted that their attempts to resolve the dispute through settlement should be taken into consideration, and that they had make multiple settlement offers to the Plaintiff. However, the Court noted that the offers made were not Formal Offers pursuant to Rule 4.29 and there was no reason submitted by the Defendant to suggest that the offers should impact any decision regarding Costs.

Ultimately, the Court determined that as the substantially successful party, the Plaintiff was entitled to Costs. With respect to the quantum of Costs, the Court considered the mixed degree of success and the delays caused by the Plaintiff, and awarded Costs equal to 50% of the amounts prescribed by Schedule C.