COURT FILE NO.: 03-003/08

DIV. COURT FILE NO. 635-08

DATE: 20090512

SUPERIOR COURT OF JUSTICE – ONTARIO

(DIVISIONAL COURT)

RE: Stephen Abrams v. Ida Abrams, Judith Abrams, Philip Abrams and the Public Guardian and Trustee

BEFORE: Justice Low

COUNSEL: Murray Teitel, for the Applicant/Appellant Brian A. Schnurr, for the Respondent Ida Abram Justin W. de Vries, for the Respondent Judith Abrams Archie J. Rabinowitz and Eric N. Hoffstein, for the Respondent Philip Abrams

E N D O R S E M E N T A S T O C O S T S

1Following release of reasons on March 25, 2009 dismissing the appellant's motion heard March 13, 2009 for leave to appeal the order of Strathy J. dated December 19, 2008, submissions in writing have been received from all parties concerning costs.

2Each of the respondents seeks costs of the motion for leave to appeal on a substantial indemnity basis.

3The appellant's position is that there should be no costs of the motion, alternatively that the respondent Judith Abrams should not be entitled to costs, and that if costs are awarded, they should be on the partial indemnity scale and in an amount in the $3,500 to $5,000 range.

4Costs, inclusive of disbursements, sought by the various respondents are as follows:

For Ida Abrams substantial indemnity $29,032.21 partial indemnity $23,285.04

For Judith Abrams substantial indemnity $17,792.49 partial indemnity $$12,041.11

For Philip Abrams substantial indemnity $22,571.57 partial indemnity $15,775.44

5The motion for leave to appeal occupied a full day of hearing time. A factum of some 90 pages was served by the appellant and was filed with the permission of the court a short time prior to the hearing date. Much of the hearing day was occupied by submissions by counsel on behalf of the appellant.

6The usual costs disposition on an unsuccessful motion for leave to appeal is that costs follow the event, and are awarded on a partial indemnity basis.

7The appellant argues that the court should depart from the usual disposition on grounds that the result of the motion was a decision that constitutes a change in the law or a novel approach to the law.

8I am not persuaded that that is the case. The motion required that the appellant satisfy one or the other of the two two-pronged tests that must be met on a leave to appeal application. The appellant did not show a conflicting authority and did not show that there was good reason to doubt the correctness of the motions judge's decision.

9While the appellant urged upon the court that s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 is an alternative route to an order for a capacity examination, there was no authority in support of the appellant's position, and rejection of it is not a novel departure from the prior state of the jurisprudence.

10In my view, there was nothing either novel or remarkable in the outcome of the motion and costs should not be denied on that basis. There is no compelling reason to hold in these circumstances that costs should not follow the event.

11The respondents argue for costs on the higher scale on the basis that the motion was unmeritorious and on the basis of the 90 page factum filed on behalf of the appellant which caused significant additional effort to be expended by solicitors for the respondents and which was excessively cautious or unnecessary and tended to unduly lengthen the proceeding.

12The fact that the motion was unsuccessful and therefore found to be unmeritorious is not in itself a sufficient ground for awarding costs on a substantial indemnity scale. If it were so, costs on that scale would be the rule and not the exception.

13The question then is whether the service and filing of the 90 page factum is sufficient to tip the scale. I would make these observations: first, that much of the content of the factum goes to the merits of the underlying application – whether Ida Abrams had capacity; second, that much of the material in the factum goes to challenging the motion judge's assessment of evidence; third, that much, if not most of the material in the factum was not addressed by the respondents in their factums as it was unnecessary to do so; and fourth, that most of the content of the appellant's factum was not required to be addressed by respondents in oral argument as it was unnecessary to do so.

14Therefore while the sheer volume of the appellant's factum required some additional expenditure of time to read and to consider, the additional time required as revealed by the dockets was not very significant. Responding counsel had to make a judgment call whether to engage with counsel for the appellant by addressing each of the issues in the appellant's factum, and thus engaging in what would be a war of facta over many matters that did not impact on the disposition of the motion, or whether to focus only on the issues that arise under rule 62.02 on the leave application notwithstanding that doing so was not in strict compliance with the rule governing the contents of responding facta. It is evident from the facta and oral argument that counsel for the respondents opted (here prudently) for the latter.

15Substantial indemnity costs are exceptional and are awarded to sanction a party's vexatious, contumelious or oppressive conduct of the whole litigation or a step in it. That the appellant's 90 page factum contains a great deal of material that is unnecessary may be a factor militating denial of some part of costs to the appellant had he been successful, but I am not persuaded that the serving and filing of the factum created a significant additional burden on the respondents. I therefore decline to award substantial indemnity costs.

16The appellant argues that no costs should be awarded to Judith Abrams. The appellant argues that Judith's participation on the motion was unnecessary and that there was no evidence that the result was of any importance to her. The appellant argues that paragraph 5 of the factum filed on behalf of Judith containing the statement that the appellant and his sister "have made countless malicious and disingenuous allegations against the respondent parties for their own gain" and that "Stephen is not interested in the best interest of Ida" constitutes the manufacture, by counsel for Judith, of his own evidence in the guise of written argument because no evidence had been filed by Judith on the underlying application. The appellant argues that this is oppressive and vexatious conduct that disentitles Judith to costs.

17Judith Abrams, having been joined as a party – and a necessary party given the issues raised on the underlying application – had a right to make submissions on the motion. She had no obligation to file material on the motion and was entitled to rely on the evidence in the record. As she had a right to take part, she is not disentitled to costs simply on the basis that she did not file an affidavit deposing that the result was of importance to her. I agree, however, that the extent to which her participation was necessary and warranted would tend to diminish the quantum of costs properly awarded to her.

18If there are allegations of fact in the factum filed on behalf of Judith that are unsupported by evidence, that is a matter that could and should have been brought to the attention of the court on the hearing of the motion. The allegations in question were irrelevant in any case to the issues to be decided, a comment that applies equally to much of the appellant's factum, and did not impact either on the argument of the motion or in the decision.

19There is regrettably no dearth of allegations of oblique motive in this litigation but allegations are no more than that until tested in the proper forum at the proper time. In context and in light of the allegations of serious misconduct and oblique motive made against Judith by the appellant in his materials, I am not persuaded that the sentences quoted from the factum filed on behalf of Judith constitutes vexatious or oppressive conduct. I would therefore not deny her costs of the motion on that basis.

20As to quantum, the appellant has referred to a number of costs awards made to successful respondents on rule 62.02 motions. It is said that the range is from $3,500 to $5,000.

21There is no general agreement concerning the complexity and the importance of the issues. In my view, the complexity of the issues was moderate. The issue of whether s. 105 of the Courts of Justice Act entitled the appellant to the relief sought was an attempt to push the envelope in respect of that provision and may have enhanced the level of risk to the respondents.

22I accept that the outcome was of significant importance to Ida and Philip Abrams. They are elderly individuals and the nature of the order sought against them is intrusive. Given the high degree of importance that they attach to the outcome, it is reasonable that their lawyers would exercise great diligence in preparing for all contingencies that might arise on the hearing of the motion. Although the tests under rule 62.02 are stringent and although the order from which leave to appeal was sought involved the exercise of a discretion such that the central focus on the leave motion was whether there had been error in law or an error in the underlying principle supporting the discretion, the appellant's focus and argument was centred on challenging the motion judge's assessment of the evidence and on challenging the findings of the assessor who had conducted prior assessments. In light of the plethora of factual material raised and sought to be challenged on the motion, I do no think that the appellant may now legitimately say that the respondents ought to have prepared less.

23The hearing of the motion occupied a full day, which is significantly longer than motions of this kind generally take. It was lengthened by the introduction by the appellant of arguments that go to the merits of the underlying application rather than to the tests to be met on the motion. As alluded to above, there is also the fact that the appellant filed a voluminous non-conforming factum which caused some additional expense to the respondents. For these reasons, I am of the view that costs outside the normal range are warranted.

24The costs claimed even on a partial indemnity basis are, however, in my view too high. Philip Abrams did not have any significant risk in respect of the motion for an examination into his capacity. His interests are consonant with those of Ida, and while it is proper that he is separately represented, it is also reasonable to expect that his lawyers and Ida's will cooperate reasonably to achieve efficiencies to benefit their own clients and, as a by-product, to lessen the costs burden to the unsuccessful party. I am not satisfied in any case that the hearing of the motion warranted two counsel on behalf of any of the respondents. As well, a review of the dockets indicates that time is included in the costs claimed that is not clearly attributable to the motion for leave to appeal but rather to the conduct of the underlying application, including matters relating to the order for directions. I would allow costs to Philip and to Ida in the amount of $8,000 each, inclusive of disbursements and GST.

25Judith's interests were not directly impacted by the result of the motion but she was entitled to respond and did so. Having regard to the principle of proportionality as well as the importance of the issues to the party and the amount of effort reasonably expended in the circumstances, I would fix Judith's costs at $5,000 inclusive.

Low J.