ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE GUARDIANSHIP OF PROPERTY FOR NADIA OSMULSKI, DECEASED
B E T W E E N:
JOSEPH OSMULSKI, GUARDIAN OF THE PROPERTY OF NADIA OSMULSKI, DECEASED
Michael Cupello, for the Applicant/Moving Party, Joseph Osmulski
Applicant
- and -
JULIE SZEWCZYK, TRUSTEE OF THE ESTATE OF NADIA OSMULSKI, DECEASED, RESPONDENT, OBJECTOR
Robin A Clinker, for the Respondents
Respondent
HEARD: September 24, 2014, at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Reasons on Motion
1Joseph Osmulski, Guardian of the property for Nadia Osmulski, deceased, seeks leave to extend the time to appeal the order of Pierce J. dated April 2, 2015 which dismissed his motion for leave to appeal the cost order of Fitzpatrick J. dated December 8, 2014.
2Initially, the Guardian appealed the order of Pierce J. to the Court of Appeal. The parties agree that the appeal is properly to the Divisional Court.
3The parties also agree that the four considerations that apply to this motion are:
An intention to appeal within the time for appeal;
A reasonable explanation for the delay having regard to the length of delay;
Whether there is prejudice to the respondent; and
The apparent merit of the appeal.
See Varshaska v. Varshavskiy, 2011 ONSC 1396 at para. 6.
4I am satisfied that the first three considerations have been adequately addressed. Argument was focused on the apparent merit of the appeal.
The Order under Appeal
5Pierce J. sitting as a single judge of the Divisional Court denied leave to appeal the cost decision of Fitzpatrick J.
6Costs submissions following a seven-day trial were made. One of the issues raised in costs submissions was whether the attorney should be entitled to payment of some costs based on an offer to settle he made on the first day of trial.
7Fitzpatrick J. addressed that issue as follows:
10On the morning of the first day of trial, Joe offered to settle this case by making a repayment to the estate of $60,000.00 all inclusive. A copy of the offer was provided in the objectors submissions. Joe’s written submissions indicate the offer was made on June 2, 2014. However, the actual offer is dated May 30th, 2014 with handwriting indicating two times on June 2, 2014 11:09 a.m. and 11:35 a.m. The objector indicates she received the offer at 11:35 a.m. The offer also contained a term that it expired 1 minute after the opening of trial. From my review of the transcript, I note that this trial commenced at 11:53 a.m. The objector argues this offer does not comply with Rule 49 as it was not made more than 7 days prior to trial. I agree. By its terms, the offer had also expired by 11:54 a.m. on June 2, 2014, the opening day of trial.
11Jurisprudence regarding Rule 57.01, and the factors that can be considered by the Court in fixing costs indicates that offers to settle, despite being non Rule 49 compliant, can be a factor in fixing costs (Prolink Broker Network Inc. v. Jaitley et al 2014 ONSC 4993). In my view, attempts to settle estate litigation should always be viewed favourably by the Court given the usual intimate and longstanding relationships between the parties and the high degree of stress and discomfort that arises from the unnecessary expenditure of family resources. However, offers to settle should also be given a realistic opportunity to be considered. In this case, an offer that appeared quite reasonable in light of the ultimate result, remained open for just under 20 minutes. It is not a factor that I will consider in this matter.
8On the motion for leave to appeal Pierce J. gave the following reasons:
In Petruzziello v. Albert, 2014 ONCA 393, the Court of Appeal at para 35 said:
“Leave to Appeal a costs order will not be granted save in obvious cases where the party seeking leave convinces the court that there are strong grounds upon which the appellate court could find that the trial judge had erred in the exercise of his or her discretion.”
The case law sets out that leave should be granted sparingly.
In my view, this is not an obvious case referred to in Petruzziello.
The trial judge considered an offer made on the morning of trial that expired 20 minutes later: it was within his discretion to find the offer was made too late in the day.
Rule 57.01 does not require judges to consider offers: rather the language of the rule is permissive. The judge implicitly recognizes this was not a Rule 49.10 offer, but considers it as an offer at large, as contemplated by Rule 49.03.
When interest and costs are considered, the objector was more successful than the offer delivered by the moving party.
Therefore, I do not agree that the judge erred in the exercise of his discretion. Motion for Leave to Appeal is dismissed.
Positions of the Parties
9The parties agree that, for the applicant to succeed, he must show that Pierce J. acted on the wrong principle - that she applied the wrong legal test for leave to appeal. See for example Baines v. Hehar, 2014 ONSC 3007 Div. Court at para. 2 and Universal AM-Can Ltd v. Tornoth Holdings Ltd, (2003), 47 C.P.C. (5th) 304 (0nt. Div. Ct.) at para. 3.
10The applicant argues that Pierce J. stated the correct test – "strong grounds upon which the appellate court could find that the trial judge had erred in the exercise of his or her discretion" – but applied the wrong test by stating that she did not agree that the costs judge erred in the exercise of his discretion.
11The respondent argues that Pierce J. both stated and applied the correct test. Her pronouncement that she did not agree that the cost judge erred was confirmation that she did not find that "strong grounds" existed.
Analysis
12Costs are in the discretion of the trial judge.
13The thrust of the applicant's argument is that by stating that the offer was "not a factor that I will consider in this matter" the trial judge did not consider the offer. However, Pierce J. found that the costs judge did consider the offer as an offer "at-large".
14I do not find that Pierce J. applied the wrong legal test. I agree that her pronouncement that she did not agree that the cost judge erred was confirmation that she did not find that “strong grounds” existed. Therefore, leave to extend the time to appeal is denied.
15If parties cannot agree on costs then the parties are to submit written argument limited to 2 pages plus cost outline within 21 days if the release of these reasons. If cost submissions are not received within 21 days then costs are deemed to be settled.
____“original signed by”
The Hon. Mr. Justice W.D. Newton
Released: September 29, 2015
CITATION: Osmulski Estate v. Szewczyk 2015 ONSC 6027
COURT FILE NO.: DC-15-0008
DATE: 2015-09-29
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE GUARDIANSHIP OF PROPERTY FOR NADIA OSMULSKI, DECEASED
B E T W E E N:
JOSEPH OSMULSKI, GUARDIAN OF THE PROPERTY OF NADIA OSMULSKI, DECEASED
Applicant
- and -
JULIE SZEWCZYK, TRUSTEE OF THE ESTATE OF NADIA OSMULSKI, DECEASED, RESPONDENT, OBJECTOR
Respondent
REASONS ON MOTION
Newton J.
Released: September 29, 2015
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