Carfagnini v. White, 2012 ONSC 3878
ACTION NUMBER: 182/12
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
IN THE ESTATE OF ENRICO CARFAGNINI, deceased
BETWEEN:
Rosemary Carfagnini and Raymond Carfagnini
Applicants/Moving Parties
- and -
Lionel White, deceased and Ida Carfagnini, in their capacities as Trustees, Carmela Palermo, Theresa Antonacci, Loretta Palermo, Christopher Palermo, Danielle Palermo, Carolyn Carfagnini, Enrico Carfagnini, Chantelle Cosentiono, Katey Carfagnini, Ross Antonacci, Donny Sagarese, Michael Sagarese, Melissa Sagarese-Bomben, and the Office of the Public Guardian and Trustee for and on behalf of Ida Carfagnini and the Office of the Children’s Lawyer for and on behalf of the minors, unborn, and unascertained
Respondents/Responding Parties
Ameena Sultan, for the Applicants
Richard J. Worsold, for the Respondents
HEARD: June 19, 2012 at Toronto
PERELL J.
REASONS FOR DECISION
1In this estates matter, the Applicants Rosemary Carfagnini and Raymond Carfagnini seek leave to appeal the Costs order of Justice Grace dated March 30, 2012. For the reasons that follow, I dismiss the motion for leave with costs payable to the Respondents Carmela Palermo, Theresa Antonacci, and Rose Marie Sagarese in the amount of $6,000, all inclusive from the Estate of Enrico Carfagnini, deceased. Rosemary Carfagnini and Raymond Carfagnini should receive no costs.
2Enrico Carfagnini died on January 28, 1976. Under his will, his widow, Ida Carfagnini, was to receive the income from the estate during her lifetime. Upon her death, the residue of the estate was to be divided between his children Carmela Palermo, Theresa Antonacci, Rose Sagarese, and Anthony Carfagnini, now deceased. The late Anthony Carfagnini’s children are the Applicants Rosemary Carfagnini and Raymond Carfagnini. They share their late father’s share of the estate.
3Ida Carfagnini and Lionel White were the estate trustees. Mr. White passed away in November 2011, and Ida, who is now 93 years old, was certified as incapable in January 2011.
4On December 21, 2011, Rosemary and Raymond Carfagnini brought an application to have Howard Carr appointed as estate trustee. Their explanation for the application was that although Ida had been incompetent since January 2011, her attorneys of property did not take any steps to have a succeeding estate trustee appointed. Rosemary and Raymond discovered that the estate was de facto being administered by Carmela Palermo, Theresa Antonacci and Rose Marie Sagarese, and in November 2011, through their lawyer Kimberley Whaley, Rosemary and Raymond Carfagnini took the initiative to see that the administration of the estate was regularized.
5Ms. Whaley suggested that Howard Carr, a highly regarded estates lawyer, be appointed, but Theresa Antonacci, Rose Sagarese, and Anthony Carfagnini, who represented 75% of residual beneficiaries, wished for a less expensive alternative. Each side accused the other of being unreasonable and obstinate. Theresa, Rose, and Anthony commenced their own application on January 26, 2012 and the result was an application and cross-application being made for the appointment of a new estate trustee and ancillary and other relief, including the passing of accounts.
6The application and cross-application came on for a scheduling appointment on March 1, 2012. Rosemary and Raymond Carfagnini insisted the matter was urgent. Theresa Antonacci, Rose Sagarese, and Anthony Carfagnini disagreed and wanted an adjournment.
7At scheduling court, after hours of discussions, the parties agreed to settle the matter. Theresa Antonacci, Rose Sagarese, and Anthony Carfagnini say they did so as a matter of expediency because Rosemary Carfagnini and Raymond Carfagnini were now promoting the appointment of an institutional trustee, which would be the most expensive way to administer the estate. Rather than place this burden on the estate, they agreed that Mr. Carr be appointed estate trustee. Rosemary and Raymond Carfagnini submit that Rosemary Carfagnini and Raymond Carfagnini capitulated to their meritorious application.
8In any event, at the scheduling appointment, the parties advised the court that the matter had been resolved on consent. Justice Grace did not rule on the merits. The parties, however, could not agree about costs. Rather, they agreed to have them fixed by the court. Paragraph 16 of the Justice Grace’s order dated March 1, 2012, provided as follows:
- THIS COURT ORDERS that the costs and associated disbursements inclusive of HST relating to the Parties shall be and hereby are to be paid out of the estate by the Succeeding Estate Trustee as follows:
i. That each party shall receive their reasonable costs of these proceedings to be determined by the Court upon receiving written submissions within 20 days from each of the Parties not to exceed five pages in length, exclusive or any supporting dockets and any authorities.
9Notwithstanding the directive in the order of March 1, 2012, that submissions not exceed five pages, on March 21, 2012, Rosemary and Raymond Carfagnini submitted ten single-spaced pages of costs submissions, exclusive of dockets and case authorities. They claimed $62,419.46 in costs for a full indemnity.
10Also on March 21, 2012, Carmela Palermo, Theresa Antonacci and Rose Marie Sagarese submitted seven double-spaced pages of costs submissions, exclusive of dockets and case authorities. They claimed $15,000 for costs.
11On March 26, 2012, past the deadline, Carmela Palermo, Theresa Antonacci and Rose Marie Sagarese wrote a letter to Justice Grace with further costs submissions.
12Also on March 26, 2012, in a letter copied to Justice Grace, Rosemary and Raymond Carfagnini objected to the delivery of the late arriving submissions.
13Justice Grace released an endorsement on March 30, 2012. The endorsement states:
Heard: In writing pursuant to Paragraph 16 of a Consent Order dated March 1, 2012 (the “Consent Order”)
I have reviewed the costs submissions of the parties dated March 21 and 26, 2012 in the case of Raymond and Rosemary Carfagnini, and March 21 (two submissions) of Carmela Palermo, Theresa Antonacci and Rose Marie Sagarese.
Paragraph 16 of the Consent order provided in part that “each Party shall receive their reasonable costs of these proceedings” out of the estate.
The task of determining a reasonable sum is not an easy one. The Application of Raymond and Rosemary and Cross-Application of Carmelo, Theresa, and Rose Marie were on my March 1, 2012 docket for purposes of scheduling. I did not review the materials in the same fashion I would have had the matter been scheduled for argument, importantly, the matters were never argued.
The costs submissions of Raymond and Rosemary say that time was expended in the quantity it was because, essentially, Carmela, Theresa and Rose Marie unreasonably opposed the appointment of Howard Carr and then, eventually, capitulated.
Reliance is placed on the Affidavits and Exhibits I no longer have. In any event, I am being asked to adjudicate based on arguments that became academic when the parties consented to an order. I will not speculate on why that occurred but I decline to find that a settlement means that all the hours spent by the lawyers for Rosemary and Raymond are properly claimable.
I note the following:
a. Very limited steps were taken. There were no-cross-examinations and facta were not prepared;
b. Having reviewed the dockets of Rosemary and Raymond it strikes me that many of the steps related to issues arising in respect of the estate other that the appointment of a substituted trustee;
c. I do not accept that Rosemary and Raymond should be treated as if they were the de facto estate trustees based on the materials I have read;
d. I find the amount of time said to be attributable to the application and cross-application unfathomable and certainly unreasonable.
e. I should not determine quantum based on a finding one set of beneficiaries one and the others lost. There was a genuine and understandable reason why the parties took the position they did;
f. The consent order spoke of the reasonable costs of “these proceedings.” I am not satisfied all of the costs claimed or steps taken by the solicitors for Rosemary and Raymond or are necessarily incidental to these proceedings.
- In all of the circumstances, the amount to which Rosemary and Raymond are entitled from the estate on account of the “reasonable” costs of these proceedings is $20,000 and those of Carmela, Theresa and Rose Marie $15,000.
14Justice Grace’s order was as follows:
Order
THIS APPLICATION brought by the Applicants Rosemary Carfagnini and Raymond Carfagnini for the appointment of a Succeeding Estate Trustee was heard this day at the Courthouse at 330 University Avenue, Toronto, Ontario.
UPON READING the written costs submissions ordered to be filed, including the submissions of the Applicants Rosemary Carfagnini and Raymond Carfagnini dated March 21, 2012 and March 26, 2012, and the two submissions of Carmela Palermo, Theresa Antonacci and Rose Marie Sagarese dated March 21, 2012,
THIS COURT ORDERS that Rosemary Carfagnini and Raymond Carfagnini shall receive their costs in the amount of $20,000 from the Estate of Enrico Carfagnini deceased.
THIS COURT ORDERS that Carmela Palermo, Theresa Antonacci and Rose Marie Sagarese shall receive their costs in the amount of $15,000 from the Estate of Enrico Carfagnini, deceased.
15On April 11, 2012, Rosemary Carfagnini and Raymond Carfagnini brought a motion to appeal Justice Grace’s costs order to the Divisional Court.
16The test for leave to appeal from the interlocutory orders of a motions judge to the Divisional Court is set out in rule 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which reads:
62.02(4) Leave to appeal shall not be granted unless,
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
17In order for leave to be granted under Rule 62.02 (4)(a), the moving party must show both: (a) a conflicting decision; and also (b) the desirability of leave to appeal being granted. A conflicting decision is one in which different legal principles are chosen to decide a comparable legal problem or to guide the exercise of the court’s discretion: Benincasa v. Agostino, [2008] O.J. No. 4172 (S.C.J.) at para. 12; Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 7405 (ON SC), 7 O.R. (3d) 542 (Div. Ct.). If leave to appeal is to be granted on the grounds of conflicting decisions, the court must be satisfied not only that there is a conflicting decision, but also that it is desirable that leave to appeal should be granted having regard to such factors as what is at stake in the order being challenged, the likelihood of the appeal being successful, the sufficiency of the record for the purposes of deciding the issues on the appeal, and the problems of expense and delay: Minnema v. Archer Daniels Midland Co., [2000] O.J. No. 1685 (S.C.J.) at paras 34-42.
18In order for leave to be granted under Rule 62.02 (4)(b), the moving party must show both: (a) good reason to doubt the correctness of the order; and also (b) a matter of general importance. In order to show that that there is good reason to doubt the correctness of the order, the moving party need not show that the order is wrong or probably wrong, but rather, that the soundness of the order is open to very serious debate: Ash v. Lloyd's Corp. (1992), 1992 7652 (ON SC), 8 O.R. (3d) 282 (Gen. Div.) at pp. 284-5; Oberlander v. Canada (Attorney General), [2004] O.J. No. 1574 (S.C.J.) at paras. 8-9; Brownhall v. Canada (Ministry of Defence) (2006), 2006 7505 (ON SC), 80 O.R. (3d) 91 (S.C.J.) at para. 30; and Walker v. Woodstock District Chamber of Commerce, [2000] O.J. No. 1994 (S.C.J.).
19In order to show that a matter is of general importance, the moving party must show that the matter is of importance to the public or to the development of the law or to the administration of justice and that the importance of the order transcends the importance of the matter to the particular parties: Greslik v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110 (Div. Ct.) at p. 112; Rankin v. McLeod, Young, Weir Ltd. et al. (1986), 1986 2749 (ON SC), 57 O.R. (2d) 569 (H.C.J.) at p. 575; and Brownhall v. Canada (Ministry of Defence) (2006), 2006 7505 (ON SC), 80 O.R. (3d) 91 (S.C.J.) at para. 29.
20Leave to appeal a costs order requires strong grounds upon which an appellate court can find that the judge erred in the exercise of his or her discretion: Smith Estate v. Rotstein 2011 ONCA 491 (C.A.) at para.45; Brad-Jay Investments Ltd. v. Szijjarto, 2006 42636 (ON CA), [2006] O.J. No. 5078 (C.A.) at para. 21, leave to appeal to the S.C.C. ref’d [2007] S.C.C.A. No. 92. (S.C.C.); and Gentra Canada Investments Inc. v. Lipson, 2011 ONCA 331 (C.A.).
21A costs award is discretionary and an appellate court will set aside or vary a costs award only if the judgment making the order made an error in principle or the costs award is clearly wrong: Berry v. Scotia Capital Inc. 2010 ONSC 5489 (Div. Ct.) at para. 16; Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303 (S.C.C.) at para. 27.
22Rosemary Carfagnini and Raymond Carfagnini make a plethora of arguments that their case satisfies the criteria for leave to appeal. None of these arguments have any merit for the simple reason that Justice Grace cannot be faulted for how he exercised his discretion with respect to costs. There is no good reason to doubt the correctness of his decision. In my opinion, his decision is correct. In any event, notwithstanding the arguments of Rosemary Carfagnini and Raymond Carfagnini, there are no issues that warrant appellate scrutiny and no issues beyond the immediate interests or concerns of the parties.
23Rosemary Carfagnini and Raymond Carfagnini submit that Sarne v. Joslin-Sarne (2007), 30 E.T.R. (3d) 217 (Ont. S.C.J.); In the Estate of Edward Levi Norman, (unreported, July 24, 2007, Court File No. 090-07) and Marziliano Estate v. Ebrekdjian, 2012 ONSC 1488 (S.C.J.), are all conflicting decisions to the case at bar and it would be desirable that leave be granted to appeal.
24These decisions are cases where there were good reasons for a judge to order a party to receive substantial or full indemnity costs. In the case at bar, however, the parties stipulated by their own consent order that, “each party shall receive their reasonable costs of these proceedings.” Justice Grace fixed costs in accordance with the consent order of the parties.
25Rosemary and Raymond Carfagnini submit Justice Grace did not understand the scope of the application, which went beyond the appointment of a new estate trustee, and therefore, he erred by not making it clear that the rest of the costs were yet to be determined.
26I disagree. In his endorsement, Justice Grace notes that “having reviewed the dockets of Rosemary and Raymond it strikes me that many of the steps related to issues arising in respect of the estate other than the appointment of a substituted trustee.” In my opinion, Justice Grace did not fix the costs for legal work, if any, not connected to the appointment of a substituted trustee. Justice Grace was not fixing the costs for legal work, if any, that was preparatory for the matters that remain to be determined in the application or cross-application. The application and cross-application are not done, and there might be costs that remain to be fixed or assessed.
27Rosemary Carfagnini and Raymond Carfagnini submit that the case at bar conflicts with the well-known and leading case of Cohen v. Kealey & Blaney (1986), 26 C.P.C. (2d) 211 (C.A.), which sets out the criteria for assessing costs, which criteria have been incorporated into Rule 58.06. They submit that Justice Grace could not have considered the relevant criteria because he noted in his endorsement that “reliance is placed on the Affidavits and Exhibits I no longer have.”
28Justice Grace’s comment, however, refers to Rosemary and Raymond Carfagnini relying on the absent affidavits to prove that Carmela, Theresa, and Rose Marie had unreasonably opposed the appointment of Howard Carr, which is a point that they make in their written costs submissions.
29Justice Grace states in his endorsement that he reviewed all the costs submissions. From my own review of the costs submissions, I can say that they provided Justice Grace with ample information about the parties’ positions and about what and why they had taken the step they had in the litigation. It was not necessary for Justice Grace to retrieve the court file from storage.
30The extensive costs submissions of both sides that he reviewed discussed the standard criteria and informed him about the necessity, or not, of steps taken.
31He obviously also reviewed the copious dockets provided by Rosemary and Raymond. He also said that he had reviewed the file material, although not in the same fashion had he been preparing for full argument and, in any event, a judge in fixing costs cannot be expected to make or have made a comprehensive or exhaustive review of the court file. It is unreasonable to expect that a judge fixing costs will review the court file as if preparing for argument and then expressly review each of the criterion set out in Rule 58.06. Justice Grace cannot be faulted for how he approached the task of fixing costs.
32Rosemary Carfagnini and Raymond Carfagnini submit that it is desirable for leave to be granted because the case addresses the issue of the role of innocent beneficiaries who take the initiative to ensure that an estate is lawfully administered and that it raises access to justice concerns if innocent beneficiaries are not able to continue with costly litigation despite the fact that they are acting for the benefit and to protect the estate.
33The problem with that argument is that the case at bar, i.e. the fixing of costs as reasonable pursuant to a consent order, does not address any such issues. By their costs order, the parties agreed that each party would recover reasonable costs. And, indeed, the self-labelled innocent beneficiaries, Rosemary and Raymond Carfagnini, were awarded their reasonable costs. They just did not receive a carte blanche, rubber-stamped award of costs. Justice Grace was not asked to make any policy decisions about costs in estate matters, nor should his assessment of reasonable costs be taken as making any policy decisions.
34Finally, Rosemary and Raymond Carfagnini submit that Justice Grace erred by considering the late arriving costs submissions of Carmela Palermo, Theresa Antonacci and Rose Marie Sagarese. This is a due process argument, but Rosemary and Raymond were not denied due process, and had more than an ample opportunity to make their submissions to the Court.
35For the above reasons, I dismiss Rosemary and Raymond Carfagnini’s motion.
36Carmela Palermo, Theresa Antonacci and Rose Marie Sagarese were successful in resisting the motion for leave to appeal. Having considered the parties’ draft bills of costs, I award Carmela Palermo, Theresa Antonacci and Rose Marie Sagarese costs on a partial indemnity basis in the amount of $6,000, all inclusive, and no costs to Rosemary and Raymond Carfagnini.
Perell, J.
Released: June 29, 2012
CITATION: Carfagnini v. White, 2012 ONSC 3878
COURT FILE NO.: 2357/76
ACTION NUMBER: 182/12
DATE: 20120629
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
IN THE ESTATE OF ENRICO CARFAGNINI, deceased
BETWEEN:
Rosemary Carfagnini and Raymond Carfagnini
Applicants/Moving Parties
‑ and ‑
Lionel White, deceased and Ida Carfagnini, in their capacities as Trustees, Carmela Palermo, Theresa Antonacci, Loretta Palermo, Christopher Palermo, Danielle Palermo, Carolyn Carfagnini, Enrico Carfagnini, Chantelle Cosentiono, Katey Carfagnini, Ross Antonacci, Donny Sagarese, Michael Sagarese, Melissa Sagarese-Bomben, and the Office of the Public Guardian and Trustee for and on behalf of Ida Carfagnini and the Office of the Children’s Lawyer for and on behalf of the minors, unborn, and unascertained
Respondents/Responding Parties
REASONS FOR DECISION
Perell, J.
Released: June 29, 2012.