“Justice Pazaratz asks in Scipione v. Scipione, 2015 ONSC 5982, “who got what they asked for”. Isn’t this the primary question in every costs decision?
Rule 24 sets out that this is the presumption. The successful party is entitled to costs.
I agree with Justice Pazaratz that it is completely unreasonable to not get what you ask for and then argue that somehow success was divided or that you were in fact successful. There are situations where there is divided success, or where in examining a comprehensive settlement it may be impossible to unravel who got what and whether it was valuable to them or not. Caution must be exercised in situations where a settlement has been presented to a court and then the court asked to assess costs. Where there are allegations of unreasonable behaviour, bad faith or where the minutes of settlement are so intricate as to be enmeshed in a global structure, this initial caution may lead to a refusal to order costs in such circumstances. There will clearly be compromises made and settlements reached, where the motivation and considerations are unknown. It may then be impossible to determine who was successful, to assess reasonableness and reach a just and equitable order of costs. It may be impossible to adequately consider the factors under Rule 24(11).
In my view in situations where a matter settles and it is clear that one side has been successful, it is entirely appropriate to assess costs and determine whether someone should pay costs to the other. If you can’t look at the matter and clearly sort out who won or who was the more substantially successful party, how can you decide costs in any direction? If you can, you should assess costs in the usual manner. You can only work with what you have. It is therefore incumbent on counsel and the parties to be clear in their settlement terms as to what has transpired. If the consent is complex and intertwined, “global” in nature it may increase the likelihood that a court will not be in a position to assess costs. That is my view of the cases and is what I find reasonable in the circumstances of this case.”
Hmoudou v. Semlali, 2020 ONSC 1330 (CanLII) at 19-22