Court File and Parties

COURT FILE NO.: CV-16-2290-00 DATE: 2022 02 22

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

THE ESTATE OF DIANE TSIALTAS, MICHAEL JONES, TARALYNN JONES, LUCAS HALLET, LIAM HALLET, MASON ERNEWEIN, by their Litigation Guardian, Taralynn Jones, BRIANNA JONES, MADISON JONES, RILEY JONES and AIDEN JONES, by their Litigation Guardian, Michael Jones

Sloan H. Mandel, for the Plaintiffs

Plaintiffs

- and -

RICHARD JUNIOR MUNROE, ONE TOUCH HAULAGE INC., 1405759 ONTARIO INC. operating as TORONTO TRUCK REPAIR and YELLOW TIRE CENTRE INC.

Lauren Bloom, for the Defendants, Munroe and One Touch Haulage David S. Young, for the Defendant, Yellow Tire Centre

Defendants

HEARD: December 3, 2021, via videoconference

REASONS FOR DECISION ON COSTS OF SETTLED ACTION

P.A. DALEY J.

INTRODUCTION:

[1] This matter came before the court for the sole purpose of determining the quantum of fair and reasonable cost to be paid to the plaintiffs following the settlement of this action.

[2] Litigation costs continue to represent a very significant component of the civil justice system in Ontario.

[3] The “loser pays” or fee shifting costs regime, as it has been referred to, was adopted in Ontario and across Canada many decades ago following the British model. The American model continues to leave each party responsible for its own legal costs.

[4] As is the case with a large portion of the civil cases before this Court, this action arises from a tort claim related to a motor vehicle accident. The defendants who participated in the settlement of the plaintiffs’ claims were represented by experienced counsel retained by their insurers. As will be considered in more detail below, insurers, as institutional litigants regularly enter into fee arrangements or block billing arrangements with legal counsel at billing rates significantly below general market rates, in exchange for a stream of guaranteed legal work.

[5] Rule 57.01 (1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sets out the critical considerations to be taken into account by the court when fixing fair and reasonable costs. In this case, while all the relevant considerations were addressed by counsel and considered by me; two factors were expressly relied upon by the defendants in opposing the costs sought by the plaintiffs. Those factors relate to the question of what costs the defendants could reasonably have expected to pay in the event they were unsuccessful in the defence of this action and secondly whether the costs claimed on behalf of the plaintiffs were proportionate within the context of rule 1.04 (1.1).

BACKGROUND:

[6] After protracted litigation and the plaintiffs’ acceptance of the defence’s joint offer to settle, this matter came before me to determine the only remaining issue: The plaintiffs’ entitlement to costs of this action.

[7] No evidence was adduced on the hearing related to the plaintiffs’ entitlement to costs, however substantial material was submitted by all parties in what could simply be described as an an informational record. In general terms, there was little conflict on most of the underlying facts that would be relevant to the determination of the issue of costs.

[8] The parties to this action were clearly in the best position to determine the issue of costs upon settlement. Notably, it has been held that the court should be very slow to make an award of costs against a party upon the settlement of an action, unless there are compelling reasons to do so: Anishinaabe Child and Family Services Inc. v. CBC (1997), 117 Man. R. (2d) 215.

[9] Although all parties to this action are represented by very experienced counsel, they have been unable to resolve the issue of costs. The settling defendants acknowledge that the plaintiffs are entitled to their costs of this action on a partial indemnity basis and on the hearing of this matter the plaintiffs also agreed that that is the level of costs to which they are entitled.

[10] Thus, while there are not necessarily compelling reasons for the court to involve itself in the determination of the plaintiffs’ costs entitlement, the basic agreements reached by these parties following the settlement of this action, as to the plaintiffs’ entitlement and the scale of costs, do significantly simplify my role in determining a fair, reasonable, and proportionate costs award.

[11] This action arises from a motor vehicle accident which occurred on September 15, 2014. At that time, Diane Tsialtas was walking on a sidewalk in Mississauga, Ontario, when she was struck by wheels which came loose from a truck operated and owned by the defendants Richard Junior Monroe and One Touch Haulage Inc. which had been serviced by the defendant Yellow Tire Centre. On September 19, 2015, Diane Tsialtas died of the injuries she sustained in the motor vehicle accident.

[12] It was also alleged in this action that the defendant, 1405759 Ontario Inc. operating as Toronto Truck Repair (“Toronto Truck Repair”), had been negligent in servicing the truck in issue.

[13] This action was brought by the deceased’s daughter and son and on behalf of her grandchildren pursuant to the Family Law Act, R.S.O. 1990, c. F.3.

[14] The claims of the deceased’s grandchildren were settled, and the settlement of those claims was approved by Justice Dennison, as set out in her endorsement of March 19, 2021.

[15] The insurers for the defendants, other than Toronto Truck Repair, funded that settlement.

[16] At some point during this litigation, well prior to the settlement of any of the claims, all counsel learned that the defendant Toronto Truck Repair did not have liability insurance coverage for its business operations, and it was determined that this defendant was also bankrupt.

[17] Following the settlement of the grandchildren’s’ claims, the parties engaged in further negotiations as to settling the deceased’s children’s’ claims, and they appeared to have concluded a settlement, however, a dispute then arose among counsel as to the exact terms of that settlement.

[18] For the purposes of these reasons, it is not necessary to examine the nature of the dispute over the terms of the settlement, as the issues were resolved before Justice McGee on October 5, 2021, upon the return of a motion by the plaintiffs to enforce the terms of the contended settlement.

[19] As set out in Justice McGee’s endorsement of October 5, 2021, the plaintiffs’ motion confirmed certain terms of the settlement leaving only three issues to be determined namely:

(a) the costs of the action; (b) the costs of the day before Justice McGee; (c) the plaintiffs’ entitlement to interest from the date of the delivery of their executed releases to the date of payment of the settlement funds in respect of the adult children’s’ claims.

Thus, it was following this endorsement of Justice McGee that this matter came before me.

[20] The total settlement of all claims, exclusive of costs and disbursements, was in the sum of $253,000, of which $100,000 was paid to the settlement of the grandchildren’s’ claims, $100,000 to the deceased’s daughter, and $53,000 to the deceased’s son.

[21] As to the costs of the entire action, the plaintiffs seek costs in the total sum of $173,017.16, which according to the costs outline submitted breaks down as follows: fees on a partial indemnity basis: $134,678.47, plus HST on the fees in the sum of $17,508.20, along with disbursements of $20,830.99.

LEGAL FRAMEWORK:

[22] The overriding principle that is recognized by rule 57.01 (1) of the Rules of Civil Procedure, R. R. O. 1990, O. Reg. 194, is that the amount of costs awarded must be reasonable and fair and need not reflect with mathematical precision the actual costs incurred by a successful litigant: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 OR (3d) 291 (C.A.).

[23] Although on the return of this matter before the court, for consideration of the question of costs, counsel for the plaintiffs advised that the plaintiffs were seeking costs of the action on a partial indemnity basis, in the material filed and in the submissions made in writing by the plaintiffs’ counsel, it was urged that the defendants should pay costs on a substantial indemnity basis pursuant to the provisions of the Victims’ Bill of Rights, 1995, S.O. 1995, c. 6, (“Victims’ Bill Of Rights”) and also on an augmented costs basis for the defendants’ failure to comply with the requirements of s. 258.6 of the Insurance Act, R.S.O. 1990, c. I.8 (“Insurance Act”).

[24] All counsel addressed these factors, and they formed a part of the overall position submitted on behalf of the plaintiffs as to why the conduct of the defendants, was a factor to be considered by me in determining reasonable and fair costs. However, as noted counsel for the plaintiffs advised that they were no longer seeking substantial indemnity costs nor augmented costs, but rather partial indemnity costs throughout. Although the plaintiffs abandoned their claim for special costs during oral submissions, I will briefly outline the basis in law for the submissions, for the completeness of these reasons.

Victims’ Bill of Rights

[25] It had been initially submitted on behalf of the plaintiffs that as the defendant driver was convicted of a criminal offence relating to the accident giving rise to this action, the plaintiffs qualified as victims within the terms of the Victims’ Bill of Rights and therefore entitled to an award of costs on a solicitor client basis in accordance with s.4 of the legislation.

[26] Although no evidence was submitted to the court on this issue, counsel for the plaintiffs did not dispute the position of the defendants that the criminal charges that followed the police investigation of this accident were not offences that qualified as a “prescribed crime” within the context of the Victims’ Bill of Rights; and therefore, neither the deceased nor the plaintiffs in this action would qualify as “victims” under this legislation. Therefore, counsel for the plaintiffs advised the court that a costs claim under this legislation was no longer being pursued.

S. 258.6 Insurance Act – Mediation

[27] It was also initially submitted on behalf of the plaintiffs that they should be awarded augmented costs for the defendants’ failure to comply with the mediation provision of s. 258.6 (1) and (2) of the Insurance Act.

[28] The mediation provision in this legislation is mandatory.

[29] The language of this legislation is not a mere suggestion or recommendation to insurers and plaintiffs that they should participate in mediation at an early stage in a claim for damages following a motor vehicle accident. Where there is a failure to follow this legislative direction, the court must determine the appropriate remedial costs penalty in the circumstances: Keam v. Caddey, 2010 ONCA 565, 103 OR (3d) 626; Williston v. Hamilton (Police Service), 2013 ONCA 296, 115 OR (3d) 144.

[30] In Williston, Justice Rouleau stated that an augmented costs award was warranted in the circumstances of that case and that the award “should reflect the censure of the court” for the insurer’s repeated failure to participate in a requested mediation pursuant to s. 258.6 (1).

[31] During oral submissions, counsel for the plaintiffs advised the court that the plaintiffs were no longer pursuing an award of augmented damages flowing from the defendants’ failure to engage in a mediation in accordance with s. 258.6 of the Insurance Act. However, the plaintiffs maintained that the defendants' insurers' refusal to mediate at an early stage resulted in the litigation being prolonged unnecessarily: see rule 57.01 (1) (e).

Other General Principles Applicable to Costs Awards:

[32] In addition to the factors set out in rule 57.01 (1) that the court is to consider in carrying out its discretion in determining a fair and reasonable costs award, it has been stated that proportionality is an overarching consideration that must be taken into account. This is also provided for in rule 1.04 (1.1) which states: “In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.” In this case proportionality relates to the issue of whether the time expended by counsel and billing rates are reasonable when considering several of the factors set out in rule 57.01 (1) including the results achieved and the amount at stake in the litigation.

[33] In Cimmaster v. Piccione, 2010 ONSC 486, Justice Gray, in considering costs following a trial, stated at para. 19:

The principle of proportionality is important and must be considered by any judge in fixing costs […] However, in my view, the principal of proportionality should not normally result in reduced costs where the unsuccessful party has forced a long and expensive trial. It is cold comfort to the successful party, who has been forced to expend many thousands of dollars and many days and hours fighting a claim that is ultimately defeated, only to be told that it should obtain a reduced amount of costs based on some notional concept of proportionality.

[34] Further, while costs awarded must be reasonable, it is not the case that the mere fact that costs exceed the damages awarded renders such an award inappropriate: Bonaiuto v. Pilot Insurance Co., 2010 ONSC 1248, 101 O.R. (3d) 157.

[35] It has been further held that the fact that costs may come close to the amount at stake or awarded by the court is well known to counsel as one of the risks involved in pursuing or defending a case. As was noted by Justice Lane in 163972 Canada Inc. v. Isacco, [1997] O.J. No. 838: “to reduce the plaintiff’s otherwise reasonable costs on this basis would simply encourage the kind of intransigence displayed by the defendants in this case.”

[36] In its decision in Bondy-Rafael v. Potrebic, 2019 ONCA 1026, the court, in considering the costs of an action addressed the issue of proportionality as to the costs sought and as well the interrelated issue of the amount recovered by judgement in the action as compared to the costs sought by the plaintiffs.

[37] In its ruling, the court made several important statements having regard to these issues which have guided this court in this matter.

[38] Firstly, it was noted that partial indemnity fees are not defined in terms of an exact percentage of full indemnity fees under the Rules of Civil Procedure. While representing a portion of full indemnity costs, that portion has never been defined with mathematical precision but generally amounts to a figure in the range of more than 50% but less than 100%. This is as it should be given the myriad factors that the court must consider in the exercise of its discretion in fixing costs: Bondy-Rafael at para 57.

[39] Secondly, the amount recovered by plaintiffs is only one of many factors to be considered and “a more nuanced approach” is necessary in order to properly apply the principle of proportionality in the circumstances of each case to arrive at an amount that “it is fair and reasonable for the unsuccessful party to pay in the particular proceeding”: Bondy-Rafael at para 60.

[40] Finally, in Bondy-Rafael, at para 64, the court stated:

The fixing of costs is not a bookkeeping exercise. The fact that the net costs award represents about 44 percent of the net recovery of $2,117,544.77 recovered on the tort claim is not the determining factor in the consideration of the principle of proportionality. While the consideration of proportionality is necessary to the soundness of any costs award and to ensure the health of the justice system, the overarching consideration is that the order for costs must be fair and reasonable. Making that assessment is more of an art than an exact science. See Marcus v. Cochrane, 2014 ONCA 207, 317 O.A.C. 251, at paras. 15-16. In consequence, an overemphasis on proportionality to the detriment of the other equally relevant factors “ignores the principles of indemnity and access to justice”, especially in proceedings where the legitimate claims of clearly wronged plaintiffs are being pursued: Gardiner v. MacDonald, 2016 ONSC 2770, at para. 65, aff’d 2016 ONCA 968, 63 C.C.L.I. (5th) 212.

POSITION OF THE PARTIES

Plaintiffs’ Position:

[41] Despite the plaintiffs’ initial position that the defendants are liable for solicitor and client costs and augmented costs as discussed above, the plaintiffs seek an award of costs in this action, which they state is on a reduced basis, on a partial indemnity scale in the sum of $173,017.66 all-inclusive of disbursements and applicable taxes.

[42] The plaintiffs also seek costs of the motion before Justice McGee in the sum of $13,456.25 in accordance with the costs outline filed relating to that attendance before the court.

[43] The plaintiffs further seek post-judgment interest in the sum of $831.60 on the settlement amount with respect to the adult plaintiffs for the time between the delivery of the releases and the payment of the settlement funds by the defendants. The defendants have agreed to pay this amount.

Settling Defendants’ Position:

[44] The defendants initially submitted that the plaintiffs’ costs of the action should be set on a partial indemnity scale in the amount of $60,000 and that no costs be awarded with respect to the attendants before the court on October 5, 2021. After the hearing of this matter in court, I requested that all counsel consider the Court of Appeal’s decision in Bondy-Rafael as that decision had not been addressed by counsel in their written or oral submissions. All counsel filed supplementary submissions following their review of that decision and counsel for the defendants put forward a revised position based on that decision to the effect that fair and reasonable costs in the circumstances, on applying the costs-to-damages ratio considered by the court in Bondy-Rafael, would result in costs payable to the plaintiffs in the range of $36,000 to $43,000 plus taxes and disbursements. The defendants took no issue with respect to the disbursements claimed on behalf of the plaintiffs.

ANALYSIS:

[45] In the informational record, submitted on behalf of the plaintiffs and in their related submissions, it is stated that the total docketed time incurred in the prosecution of this case was in the sum of $232,708.31 plus HST of $30,252.08, exclusive of disbursements. The plaintiffs have discounted the fee component of their partial indemnity costs as claimed to $134,678.47 plus HST of $17,508.20, exclusive of disbursements. This amount was determined after having reduced the actual docketed time by eliminating lawyers' duplication in work and time spent by associates that represented educational or learning time.

[46] The unreduced fee component resulted from docketed time of 580 hours and the reduced fee component in the partial indemnity calculations referenced above represents 496.7 hours.

[47] Mr. Mandel, who represents the plaintiffs (1996 Call), charges an actual hourly rate of $975 per hour and a partial indemnity rate of $614 per hour according to the costs outline submitted. Defence counsel Mr. Dunn (1978 Call) charges an actual rate of $315 per hour and a partial indemnity rate of $189 per hour. Defence counsel Mr. Young (1983 Call) charges an actual rate of $350 per hour and a partial indemnity rate of $210 per hour.

[48] Taking the discounted hours as docketed by the plaintiffs’ lawyers at 496.7 hours and applying that to the total partial indemnity fee component being claimed on behalf of the plaintiffs this results in a blended hourly rate of $271.15 for all docketed time incurred in prosecuting this action.

[49] During this action, the plaintiffs’ counsel advised defence counsel as to the fees being incurred as the action was progressing. In a mediation memorandum dated November 8, 2019, the plaintiffs’ counsel stated that they had incurred fees of $75,000 exclusive of HST and in a pretrial brief dated October 7, 2020, the plaintiffs’ counsel stated that the fees incurred had risen to $110,000 exclusive of HST. The claims in this action did not resolve until the spring and summer of 2021. Although a trial date had not been scheduled, the case had gone through two pretrials and was to have been placed on an active trial list.

[50] As to the complexity of this case, from a liability standpoint, so far as the plaintiffs were concerned, this case was not complex in that the deceased, being a pedestrian, had the benefit of the reverse onus under the Highway Traffic Act, R.S.O. 1990, c. H.8, which required the defendant driver to disprove any negligence on his part. Thus, in terms of taking steps to resolve this action at an early stage, given that this was a fatality case involving a pedestrian, the plaintiffs’ claims would have been ripe and capable of settlement by the defendants collectively well before 2021. The only issue that complicated the matter related to the sharing of liability as between the defendants and determining what contribution, if any, could have been obtained from the defendant Toronto Truck Repair. This question could have easily been determined during an early mediation, had one been conducted.

[51] As noted, the plaintiffs are not seeking augmented costs because of the defendants’ refusal or failure to participate in the statutory mandated mediation pursuant to section 258.6 of the Insurance Act. I can reasonably infer that had such a mediation taken place when requested by counsel for the plaintiffs, and not in 2019, the plaintiffs’ claims could have been readily assessed and probably resolved by the defendants. Furthermore, it would have allowed all parties to determine more quickly whether the defendant Toronto Truck Repair had business liability coverage that could have been available in whole or in part to fund the settlement of these claims. I conclude that the defendants’ failure to mediate, as required, at the earliest stages of this litigation unnecessarily lengthened the duration of this proceeding contrary to rule 57.01(1)(e). In reaching this conclusion, I recognize that the plaintiffs have abandoned any claim for augmented costs, as contemplated by the Insurance Act, and the defendants’ breach of the mediation requirements in the legislation is in no way determinative of my decision as to costs in this matter. It is simply that their failure to mediate at an early stage probably and unnecessarily prolonged this litigation before a settlement was achieved.

[52] The net partial indemnity fee component sought by the plaintiffs’ in the sum of $134,678.47 represents about 53% of the settlement recovery, however this is not a determining factor in considering the principle of proportionality when considering what are fair and reasonable costs in this case.

[53] The plaintiffs submit that the ratio of the proposed partial indemnity fee, as compared to the actual (unreduced) fee component i.e. $134,678.47/$232,000, represents 58%. Typically, partial indemnity fees represent approximately 60% of full indemnity fees.

[54] While this analysis is sensible, one must still consider whether the time spent by counsel was warranted when considering the factors in rule 57.01.

[55] Counsel for the plaintiffs filed a costs-outline as well as the underlying time dockets to support and detail the services that were charged for. On reviewing the docket records, I cannot identify any “over lawyering” or duplication of work that would warrant a reduction in the hours incurred. Furthermore, even after production of the plaintiffs’ counsel’s full docket records, counsel for the defendants did not make any submissions to the effect that excessive time or “over lawyering” was involved in the handling of the plaintiffs’ action.

[56] It is beyond doubt that this was a hard-fought piece of litigation by both sides and that counsel for the plaintiffs was required to fully investigate and advance all claims and to adduce significant supporting evidence both on the defendants’ liability and as to the quantum of damages.

[57] In my view, the time and expense involved in the prosecution of personal injury cases is such that often there is little, if any, symmetry between the legal costs incurred in advancing the plaintiffs’ case as compared to defending against such a claim. Furthermore, the additional costs are not simply driven by notional hourly rates but more so by the time required to investigate the merits of the case and marshal the necessary evidence to properly advance the claims.

[58] In this case, the defence counsel are both very senior and experienced lawyers whose regularly hourly rates on non-insurance retainers would be significantly higher than the rates applicable to their work in defending this claim. Thus, simply comparing both the hours incurred and the hourly rates of the defence counsel against the hours incurred and the notional hourly rates of the plaintiffs’ counsel is of little assistance in assessing the overall question of proportionality, the reasonableness, and the fairness of the partial indemnity fees claimed.

[59] As annotated in rule 57 as “Information for the Profession” – there is a guideline which was established by the Costs Subcommittee of the Civil Rules Committee with respect to suggested partial indemnity hourly rates applicable to lawyers based on their years at the bar. Although these suggested partial indemnity hourly rates are in no way binding, they do indicate a range of rates that the Committee concluded were representative of fair and reasonable partial indemnity rates based on lawyers’ years of experience. The guidelines suggest that lawyers at the bar for 10 years or less have a maximum partial indemnity hourly rate of $225, lawyers at the bar for 10 years but less than 20 years have a maximum partial indemnity hourly rate of $300, and a lawyer at the bar for over 20 years have a maximum partial indemnity hourly rate of $350.

[60] Having considered the detailed dockets submitted by counsel for the plaintiffs, and counsel for the defendants, and considering the plaintiffs’ counsel’s blended hourly rate of approximately $271.15 per hour, I have concluded that the partial indemnity costs being sought on behalf of the plaintiffs are fair, reasonable, and proportionate even though the total recovery upon settlement was only $253,000. It was clearly open to the defendants to recognize that the plaintiffs’ claims were relatively modest, as compared to the cost of all the legal work that was carried out by their respective counsel. The fact that the defendants’ insurers simply let the action run its course and ignored requests to conduct a statutorily mandated mediation, should in no way adversely impact the plaintiffs’ entitlement to receive reasonable and fair partial indemnity costs.

[61] In reaching this conclusion it is notable that the partial indemnity hourly rates being used by defence counsel– Mr. Dunn at $189 per hour (actual rate of $315 per hour) and Mr. Young – at $210 per hour (actual rate of $350 per hour) are well below the recommended partial indemnity rates suggested by the Civil Rules Committee. Both defence counsel has close to 40 years at the bar and as such the partial indemnity rates and actual or full indemnity rates applicable to them are well below rates that they could otherwise reasonably charge given their seniority and considerable experience at the bar. Thus, there partial indemnity rates and certainly their actual or full indemnity rates cannot be considered in any way as a proper comparator for determining what costs the defendants and their insurers might otherwise reasonably expect to be exposed to in the event they were unsuccessful in the defence of this action.

[62] Considering the informational record, including the docket records submitted by both sides, it is clear that considerable time was spent in litigating this case. As noted by Justice Gray in Cimmaster, it would be “cold comfort” if the plaintiffs in this case were forced to have expended many thousands of dollars in advancing their case only to be told upon resolution of the case that “based on some notional concept of proportionality” the costs that they otherwise had reasonably incurred were now not recoverable.

[63] An over emphasis on proportionality to the detriment of other equally relevant factors "ignores the principles of indemnity and access to justice, especially in proceedings where the legitimate claims of clearly wronged plaintiffs are being pursued: Bondy-Rafael, at para.64.

[64] In the result, I have concluded that the partial indemnity costs, as claimed on behalf of the plaintiffs in the all-inclusive sum of $173,070.66, is fair, reasonable, and proportionate within the context of this lengthy litigation. Furthermore, for the reasons set out, I have concluded that the defendants and their insurers should have reasonably expected to pay costs in this order given the length of time this litigation has been ongoing, the time spent, and the blended hourly rates being incurred. I therefore order that the defendants pay to the Plaintiffs their partial indemnity costs fixed in that amount within 30 days. As the court has not been advised as to the sharing of liability for the costs of the settlement of this action, it is ordered that the settling defendants are jointly and severally liable for these costs.

[65] Further, as agreed to by the defendants, they shall pay to the plaintiffs post-judgment interest on the settlement monies related to the adult plaintiffs in the sum of $831.60.

[66] With respect to the costs sought by the plaintiffs related to their attendance before Justice McGee, I have concluded that no costs should be awarded.

[67] While the parties were able to finalize the terms of the settlement of the adult claimants upon that attendance before Her Honour, the need for that attendance arose from circumstances evolving from the failure of all counsel to effectively communicate and to deal responsibly with the terms of the settlement that had been achieved. Given that I was not the judge presiding on the motion that ultimately came before Justice McGee, I can make no specific findings of fact as to the conduct of these parties in the absence of any proper evidentiary record. Therefore, there will be no costs with respect to that attendance.

[68] As to the costs of this proceeding, the court trusts that counsel will be able to resolve this issue without its further involvement. If that is not the case, counsel may schedule a time for submissions with my administrative assistant.

DALEY J. DATE: February 22, 2022