Bank of Nova Scotia Trust Company v. Zo, 2012 ONSC 533
CITATION: Bank of Nova Scotia Trust Company v. Zo, 2012 ONSC 533
DIVISIONAL COURT FILE NO.: 499/11
DATE: 20120120
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
THE BANK OF NOVA SCOTIA TRUST COMPANY and GORDON WILLIAM HODGINS, in their capacity as attorney for property for RUTH EDITH HODGINS
Applicants
(Appellants)
– and –
HMEIN THANG NGA ZO, also known as ROBERT ZO, REVEREND ZO, ZO HMEIN THANG NGA, ZO HMINE HANG NGE and HMINE THANG NGA ZO and TD CANADA TRUST
Respondents
Gregory Sidlofsky, for the Applicants (Appellants )
No One Appearing
HEARD at Toronto: January 20, 2012
HARVISON YOUNG J. (orally)
[1] The applicant, Wagner Sidlofsky seeks leave to appeal Swinton J.’s costs order dated October 24, 2011. The applicant law firm is counsel to the attorneys for the property of Ruth Hodgins, a 94 year old woman who had commenced proceedings against a respondent with respect of some $91,000.00 allegedly taken from her. As a result, some $68,000.00 was located in the defendant’s bank account and ultimately recovered. The litigation was resolved.
[2] The motion judge approved the settlement which provided that Ms. Hodgins would recover $74,838.14 (including a contribution from the defendant Canada Trust). The motion judge however, refused to approve legal fees in the amount of $45,656.74 as sought by Wagner Sidlofsky. The motion judge instead approved the amount of $16,000.00.
[3] The applicant seeks leave to appeal this cost order and argue that the motion judge erred in principle in the exercise of her discretion.
[4] It submits that leave to appeal this cost award should be granted because there are strong grounds upon which the Court can find that the judge erred in exercising her discretion or where the discretion was exercised upon a wrong principle.
[5] The applicant submits that the motion judge erred in two main respects. First, it submits that she erred in failing to give sufficient weight to the facts that the client, including the public trustee had approved the fees sought. Second, and relatedly, the applicant submits that the motion judge erred in making such a substantial reduction in fees without first providing for a proper process by which the applicants could have had the opportunity to justify the amounts claimed.
[6] The options, Mr. Sidlofsky submits, might have included a referral for an assessment or perhaps the opportunity to make further submissions.
[7] The motion judge’s reasons on the costs issue review the relevant considerations to be taken into account as set out in the applicant’s factum at para. 25. As the applicant recognizes the motion judge clearly considered these factors. She considered the hours spent and rates charges and the results achieved. She clearly assessed the complexity of the matter and the steps taken, albeit differently than the applicant would have. She was entitled to do so. In exercising her discretion and the costs set out in the settlement she considered and reviewed the steps taken, the hours spent and the complexity, particularly the fact that there was no cross examination, no document discovery and the matter did not proceed beyond mediation. She considered the principle of proportionality as well as the level of risk of non-payment which she concluded to be null or non-existent. She also took seriously the Court’s responsibility to ensure that legal costs incurred on behalf of vulnerable persons are necessary and reasonable and for that person’s benefit before ordering that such costs be paid from the estate or assets of that person. (See Ziskos v. Miksche, [2007] O.J. No. 4276, a decision of Spies J.).
[8] The fact that the client had approved the fees, as Mr. Sidlofsky emphasized, does not address this concern. I also note that the motion judge did consider this fact.
[9] It it may well be true that counsel in such cases are placed in difficult positions in attempting to know ahead of time the degree of scrutiny to which their costs will be subjected. This reality does not establish an error in principle on the part of the motion judge in exercising her discretion on costs. She clearly indicated her concern over the quantum of fees at the hearing and counsel had the opportunity to make submissions on the issue at that time. There is no indication that they sought an assessment or sought any need to make further submissions. At the end of the day, the applicants are taking issue, in my view, not with the principles applied, but with the conclusions she reached in the exercise of her discretion. The existence of some basis for considering that the application of the principles in this case might have led to a different conclusion with respect to the appropriate level of fees does not constitute an error in principle in the exercise of discretion.
[10] I am unable to conclude that the applicants have established strong grounds for concluding that the motion judge erred in the exercise of her discretion in fixing the fees or that she exercised her discretion upon a wrong principle. The motion for leave is therefore dismissed.
HARVISON YOUNG J.
Date of Reasons for Judgment: January 20, 2012
Date of Release: January 30, 2012
CITATION: Bank of Nova Scotia Trust Company v. Zo, 2012 ONSC 533
DIVISIONAL COURT FILE NO.: 499/11
DATE: 20120120
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HARVISON YOUNG J.
BETWEEN:
THE BANK OF NOVA SCOTIA TRUST COMPANY and GORDON WILLIAM HODGINS, in their capacity as attorney for property for RUTH EDITH HODGINS
Applicants
(Appellants)
– and –
HMEIN THANG NGA ZO, also known as ROBERT ZO, REVEREND ZO, ZO HMEIN THANG NGA, ZO HMINE HANG NGE and HMINE THANG NGA ZO and TD CANADA TRUST
Respondents
ORAL REASONS FOR JUDGMENT
HARVISON YOUNG J.
Date of Reasons for Judgment: January 20, 2012
Date of Release: January 30, 2012