Jon David Giacomelli

This supplementary costs endorsement clarifies a previous Costs Order dated December 5, 2018.

The defendants requested clarification, while the plaintiffs argued the court was functus officio.

The court rejected the functus officio argument, affirming its jurisdiction to amend the order to correct an omission in expressing its manifest intention.

The clarification specifically addresses the apportionment of costs, confirming that one defendant is to pay 25% of the balance of the plaintiffs' costs, after a third party pays their 25%.

Augusta Tiberi, acting as Attorney for Property for her deceased father, Giustino Ricci, misappropriated estate funds, incurred debt for personal benefit, and improperly transferred the family home into joint tenancy and then solely into her name, subsequently mortgaging it for personal use.

Following Mr. Ricci's death, his other children initiated litigation to ensure proper estate administration.

The parties settled all substantive claims, leaving only the issue of costs.

The court found that Ms. Tiberi's counsel, Dorothy Hagel, pursued an untenable defense, misled the court, and facilitated her client's breaches of court orders, significantly increasing litigation costs.

The court awarded full indemnity costs to the plaintiffs, reduced for proportionality, and held Ms. Hagel jointly and severally liable for these costs, personally responsible for 25% due to her misconduct.

This motion sought to correct the plaintiff's name to include a litigation guardian, Valerie Lummack by her litigation guardian Keith Lummack, due to Valerie's alleged mental incapacity.

The court reviewed conflicting expert evidence regarding Valerie's capacity to instruct counsel, noting discrepancies and the lack of accommodation for her communication deficits in the assessments.

The court emphasized the expert's duty to assist the court and directed the plaintiff's expert to conduct a further clinical interview with Valerie, specifically utilizing accommodations for her communication deficits, or provide reasons why such accommodations are unnecessary, within 30 days.

The defendants were granted leave to file a responding report.

The court reviewed lengthy costs submissions following an earlier endorsement that converted an application into an action, necessitating a trial due to serious allegations and contentious evidence.

The court determined that the costs of the two attendances before it ought to be reserved to the trial judge, as a proper adjudication of the merits and credibility assessment required a full trial.

The court converted an application into a trial due to serious allegations of misappropriation of estate funds and credibility issues that could not be resolved on affidavit evidence.

The respondent Estate Trustee was ordered to pay $400,000 into court and restricted from taking further steps as Estate Trustee without consent or court order, pending the trial.

The defendants moved to transfer a civil proceeding from Hamilton to Toronto.

Applying Rule 13.1.02 of the Rules of Civil Procedure, the court held the moving party failed to establish that Toronto was a significantly better venue or that transfer was desirable in the interests of justice.

The court emphasized the shorter trial and motions lists in Hamilton, the prior procedural history already conducted there, and the absence of evidence of significant added inconvenience to parties or witnesses.

The motion was dismissed and costs were awarded to the plaintiff.

Following a prior motion decision, the parties were unable to agree on costs and sought a determination from the court.

The defendants sought substantial indemnity costs, arguing the motion was vexatious and unnecessary, while the plaintiff sought partial indemnity costs and argued the motion was required to secure payment of outstanding costs awards and attendance for an examination in aid of execution.

The court held that success on a motion must be assessed by comparing the circumstances before and after the motion and whether the motion induced compliance.

The court found the motion was necessary to obtain payment of outstanding costs awards and to secure attendance for examination.

Partial indemnity costs were awarded to the plaintiff, reduced to reflect lack of success on one issue.