“In the decision of Beardsley v. Horvath, 2022 ONSC 3430 (Ont. S.C.), Summers J. sets out a comprehensive analysis of the law regarding costs of settled cases. She notes the following in paras. 10-12:
(i) The caselaw has developed since the decision in Blank v. Micallef (2009), 75 R.F.L. (6th) 308, 2009 CanLII 60668 (Ont. S.C.), where the court held that costs of a settled case should not be awarded absent compelling circumstances.
(ii) Citing the cases of Scipione v. Scipione, 2015 ONSC 5982, 68 R.F.L. (7th) 66 (Ont. S.C.), Ball v. Ball, 2014 ONSC 5754, 52 R.F.L. (7th) 244 (Ont. S.C.), and A.C. v. G.K., 2015 ONCJ 399, 64 R.F.L. (7th) 496, Summers J. identifies some general principles that have emerged:
i. It is not uncommon for the court to receive last minute settlements which resolve all issues other than costs.
ii. Parties are always encouraged to settle; even at the last moments of a motion or trial – if signing minutes of settlement will jeopardize a litigant’s ability to seek costs, it will create a disincentive for settlement.
iii. There is a presumption that a successful party is entitled to costs pursuant to r. 24(10)); a party’s behaviour may be a relevant factor. If a court can assess success and reasonableness, costs may be awarded even when there has been a settlement. This is often the case where there is an extensive record with supporting documentation.
iv. If a party brings a motion asking to change almost everything, and, at the last minute, signs a consent which changes almost nothing, it may not be difficult for a judge to determine success.
v. “Success” is assessed by comparing the terms of the order made against the relief requested in the pleadings and, where applicable, against the terms of an offer to settle.
vi. When a case is determined by a settlement rather than a judicial decision, a court often does not have the information and evidence required to assess who was “successful” or the degree of that success. Sometimes the issues are so numerous and the results so different from either party’s offer that “success”cannot be measured. For example, in Page v. Desabrais, 2012 ONSC 6875 (Ont. S.C.) at para. 42, a multi-issue case, the court compared the offers of the parties throughout the proceeding and found it “simply impossible…to declare one party more successful than the other.”
vii. Sometimes, however, a court is able to assess what represents “success” after a settlement is reached. In Kearley v. Renfro, 2012 ONSC 5391 (Ont. S.C.), the only issue before the court on a motion was the residency of three children; the mother agreed on the day scheduled for the motion and settlement conference that the children would go into their father’s care immediately. The court found that the father was substantially successful, and awarded him costs.”