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  • Costs for Arbitration

    Arbitration award was issued and I am contemplating asking for costs.

    We had already been in mediation for months and each of us made offers during this time. I then sent stbx an additional offer just prior to the start of the arbitration process.


    My lawyer has e-mailed a chart to me showing the results of success.
    • successful in 3 out of 7 items.
    • mixed success in 2 out 7 items, although result is closer to my offer.
    • unsuccessful in 2 out of 7 items.
    My lawyer also said that there are 2 types of costs, taxable costs and solicitor/client costs, and where I was awarded better than my offer, taxable costs double.

    I am trying to figure out how to calculate how much I might be awarded but don't know where to start.

    I know the amount spent on just the arbitration portion but how do I break it down into taxable costs and client/solicitor costs?

    Thanks

  • #2
    Offhand, that doesn't sound too successful...

    Comment


    • #3
      Originally posted by Janus View Post
      Offhand, that doesn't sound too successful...
      Actually that is quite good.

      5/7 is better than 2/7 if there is are offers to settle that have been made that reflect the 2 "mixed success" better than the other party.
      Last edited by Tayken; 10-25-2012, 10:18 PM.

      Comment


      • #4
        Mixed success counts as success?

        The case law I keep on reading shows judges not awarding costs when there is any level of "mixed" success, as is the case here. Obviously, this is arbitration, not a trial, but I imagine that it would be similar?

        Yes, you are probably going to ask me to cite the cases (as well you should), but I wasn't really tracking the cost ones, so I don't have a handy file of those decisions. I'll look around.

        Comment


        • #5
          Originally posted by Janus View Post
          Mixed success counts as success?

          The case law I keep on reading shows judges not awarding costs when there is any level of "mixed" success, as is the case here. Obviously, this is arbitration, not a trial, but I imagine that it would be similar?

          Yes, you are probably going to ask me to cite the cases (as well you should), but I wasn't really tracking the cost ones, so I don't have a handy file of those decisions. I'll look around.
          Janus, not to be rude, but it is clear that you do not understand how costs awards work and offers to settle.

          For costs an evaluation of the Offers to Settle after the order needs to be presented and for the arbitrator (or judge) has to analyze the "mixed" results. If the person in question made an Offer to Settle in accordance with Rule 18 of the Family Law Rules that is "similar or better" then they can seek costs and more than likely will be awarded costs.

          Costs would be awarded in favour of the person who made an Offer to Settle that is similar or better. So, if the OP has this material in hand, service was made in accordance with Rule 18 then the there is a high probability they will be awarded costs for (a) the work to create the offer to settle and (c) the time having to litigate a matter that a comprehensive offer already said it should be "similar" to.

          The purpose of costs awards is to insure that people don't go the litigated route for matters that could have been settled.

          For example:

          If the Applicant's position was Sole Custody and 80-20 access.
          The Respondent's position was joint custody and 50-50 access.

          Order reads:

          The Applicant and Respondent shall share custody of their children in the model of parallel parenting.

          The Applicant shall have access to the child 60% of the time in accordance with the schedule.

          The Respondent shall have access to the child 40% of the time in accordance with the schedule.

          If the "Respondent" had made an offer to settle that was 50-50 full joint custody there is high probability that the Respondent will be awarded costs because they are closer to the final order than "Sole custody and 80-20 access".

          Hope this helps you understand "costs awards".

          Think of it like the Price is Right. If you go over you don't win. But, some times the person who bets 1$ wins because everyone was way off base in their offer to what the actual price of the item was.

          Good Luck!
          Tayken

          Comment


          • #6
            I never claimed that I was an expert

            That said though, your example shows a single issue, where the result is in favour of one party. The OP indicated that there were 7 issues, of which only 3 were pretty much in his favour, and 2 were against. I am not sure how that makes his offer "better" in terms of awarding costs.

            What am I missing?

            Comment


            • #7
              Originally posted by frustratedwithex View Post
              I know the amount spent on just the arbitration portion but how do I break it down into taxable costs and client/solicitor costs?

              Thanks
              I am still unclear on and what Taxable costs are and solicitor/client costs? As well as how to calculate?

              Thanks

              Comment


              • #8
                Originally posted by frustratedwithex View Post
                I am still unclear on and what Taxable costs are and solicitor/client costs? As well as how to calculate?

                Thanks
                Your lawyer should be doing everything up for the costs award request. No?

                Comment


                • #9
                  Originally posted by Janus View Post
                  I never claimed that I was an expert

                  That said though, your example shows a single issue, where the result is in favour of one party. The OP indicated that there were 7 issues, of which only 3 were pretty much in his favour, and 2 were against. I am not sure how that makes his offer "better" in terms of awarding costs.

                  What am I missing?
                  3 issues with success - costs would be awarded.
                  2 mixed issues could all very well be awarded if the offers to settle were more reasonable and in-line with what was ordered than the other party.
                  2 issues were against.

                  3+2=5

                  5/7 = 71% (considering that the 2 mixed issues he gets success on)

                  Cost of 100,000. Other party could end up paying 71% of 100,000 of legals or 71,000.

                  Now this is a VERY simplified view of costs. Your best to look for "legal aid gives you wings" on CanLII to see a really complex costs order.

                  Good Luck!
                  Tayken

                  Comment


                  • #10
                    Before going to the expense of submitting costs directly to the arbitrator, my lawyer suggested to send a letter to ex.s lawyer and ask for less than what the arbitrator might award.

                    Exs. lawyer responded that he does not agree with the level of success and is instructed to offer the sum of $1.00.

                    I sent an offer to ex. prior to the start of the arbitration process. My lawyer refers to this offer as a Calderbank offer. This is what I based my success on.

                    Based on this offer I believe I was successful as follows:

                    Originally posted by frustratedwithex View Post
                    • successful in 3 out of 7 items.
                    • mixed success in 2 out 7 items, although result is closer to my offer.
                    • unsuccessful in 2 out of 7 items.
                    My ex. has not referred to this offer. He has based his success on both of our positions in arbitration.

                    Now I need to decide if I want to submit an application for costs to the arbitrator.

                    I estimate the cost to submit this application will be about $3,000.

                    I may be awarded about $10,000. Both of these numbers are conservative.

                    My lawyer has told me that I will not be awarded solicitor-client costs, but a % of the schedule 'C' taxable costs.

                    Ex has asked for a hearing to address costs and my lawyer has suggested to submit in writing.

                    Question
                    What is the likely success of any costs being awarded, if ex is not acknowledging the Calderbank offer and wants to base success on our arbitration positions?

                    Comment


                    • #11
                      I continue to be mystified as to how this case could be expected to attract costs. Using Tayken's formula of "mixed success = success", which as far as I can tell has little to no basis in case law, then I have the score as the following

                      You: 5/7 wins
                      Enemy: 4/7 wins

                      So, you can claim about 1/7th of your costs, assuming costs are similar.

                      Comment


                      • #12
                        Originally posted by frustratedwithex View Post
                        Before going to the expense of submitting costs directly to the arbitrator, my lawyer suggested to send a letter to ex.s lawyer and ask for less than what the arbitrator might award.

                        Exs. lawyer responded that he does not agree with the level of success and is instructed to offer the sum of $1.00.

                        I sent an offer to ex. prior to the start of the arbitration process. My lawyer refers to this offer as a Calderbank offer. This is what I based my success on.

                        Based on this offer I believe I was successful as follows:

                        My lawyer has e-mailed a chart to me showing the results of success.
                        • successful in 3 out of 7 items.
                        • mixed success in 2 out 7 items, although result is closer to my offer.
                        • unsuccessful in 2 out of 7 items.
                        My ex. has not referred to this offer. He has based his success on both of our positions in arbitration.

                        Now I need to decide if I want to submit an application for costs to the arbitrator.

                        I estimate the cost to submit this application will be about $3,000.

                        I may be awarded about $10,000. Both of these numbers are conservative.

                        My lawyer has told me that I will not be awarded solicitor-client costs, but a % of the schedule 'C' taxable costs.
                        I had another phone call with my lawyer. It is unclear why my ex did not refer to this Calderbank offer, (it was sent With Prejudice), and it was very clear that I was basing my success on this offer, not on my arbitration position.

                        In my exs correspondence he identifies 7 different issues, and believes he is mostly successful based on these issues.

                        In the introduction of the arbitrators award she determines that there are 2 issues, child support and spousal support and they can be broken down into a few issues including a), b), c), d) and e). Based on this breakdown, I am still mostly successful.

                        If I do proceed with an application for costs, I understand it will be the arbitrator who decides how many and what the issues are. So I can't really determine if I will be able to recoup any costs.

                        Anyways, now I am confused and undecided if I should proceed with a cost application.

                        Comment


                        • #13
                          There has been further communication with exs lawyer. From what I understand, exs lawyer is arguing that a Calderbank offer will only be considered after the award for costs is made.

                          My lawyer has stated that that is the case with a formal offer, but not with a Calderbank offer. He has said that this offer is presented to the decision maker after the judgement/award, but not subsequent to the award of costs.

                          This is why stbx doesn't want to discuss the issue of costs without a formal hearing with the arbitrator.

                          Although part of me wants to see this through to its conclusion, I'm tired.

                          The application and hearing for costs will cost me about $3,000 and I don't know what the outcome will be.

                          Stbx did not always follow the arbitrators rules, he did not use his lawyer for this process, did his own submissions, but I think he would only be considered as difficult to deal with.

                          In my opinion, the arbitrator didn't really favour either one of our positions. My success is based only on this Calderbank offer made prior to the Arbitration.

                          Does anybody have experience with a Calderbank offer? or costs being awarded with an arbitration? Any advice?

                          Comment


                          • #14
                            Originally posted by frustratedwithex View Post
                            Arbitration award was issued and I am contemplating asking for costs.

                            We had already been in mediation for months and each of us made offers during this time. I then sent stbx an additional offer just prior to the start of the arbitration process.


                            My lawyer has e-mailed a chart to me showing the results of success.
                            • successful in 3 out of 7 items.
                            • mixed success in 2 out 7 items, although result is closer to my offer.
                            • unsuccessful in 2 out of 7 items.

                            My lawyer also said that there are 2 types of costs, taxable costs and solicitor/client costs, and where I was awarded better than my offer, taxable costs double.

                            I am trying to figure out how to calculate how much I might be awarded but don't know where to start.

                            I know the amount spent on just the arbitration portion but how do I break it down into taxable costs and client/solicitor costs?

                            Thanks
                            Curious, how do you measure "mixed success"? Specifically in my situation there were no offers to settle and the motion was on custody and access, the access schedule set by the judge was neither what i was looking for, nor was it what the other side was asking for exactly. - Is that mixes success?

                            In the other matters discussed, ie baby sitting schedule, i got some of what i was asking. Example: I asked that our daughter remain within me half days instead of the baby sitter during the week, the other side opposed that, the judge gave me 3 half days a week on week one and 2 half days on week two, is that mixed success or success?

                            Just looking for some opinions.
                            Thanks.

                            Comment

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