“In this case, the parties seek a decision on costs where there is no judge who has dealt with the step who could render a costs decision. I would have been the trial judge, but no trial proceeded before me. I thus come to this costs determination without any prior knowledge of the parties’ litigation, positions or evidence. I have no record of judicial fact finding on issues relevant to costs, and no evidentiary record before me on which to make findings.
The parties’ minutes of settlement expressed a preference for written submissions to deal with costs, no doubt to save expense. This is not a silly concern. As Leach J. observed in Witherspoon v. Witherspoon, 2015 ONSC 6378 at para. 42, attempts to address cost issues in a post-settlement context are unlikely to promote judicial economy. He wrote:
…application of the cost rules presupposes that the court is in a position to rely on factual or other objective findings that either support or detract from the parties’ respective submissions. However, that self-evidently will not be the case where the parties rely on matters and considerations that have never been the subject of any judicial fact finding, or corresponding judicial determination on issues or reasonableness, unreasonableness, or alleged misconduct. The parties in the case before me seem to have come to such a realization either consciously or instinctively, given their respective efforts to now revisit contentious issues and evidence, and belatedly have such matters resolved in their favour in order to justify their cost positions. However, an exercise that effectively encourages and requires the parties and the court to revisit and essentially litigate such issues, which supposedly have been resolved by a substantive settlement, seems entirely and inappropriately retrograde in nature.”