Court of Appeal for Ontario

CITATION: Andrade v. Andrade, 2016 ONCA 507

DATE: 20160624

DOCKET: C59214

BEFORE: Simmons, van Rensburg and Hourigan JJ.A.

BETWEEN

Manuela Estrela Andrade Plaintiff (Respondent)

and

Henrique E. Andrade and Leonardo Andrade, Estate Trustee for Luisa Cabral Andrade Defendants (Appellant)

COUNSEL: Gavin MacKenzie and Patrick T. Summers, for the appellant John J. Longo and Pamela Miehls, for the respondent

HEARD: November 12, 2015

On appeal from the judgment of Justice Edward M. Morgan of the Superior Court of Justice, dated July 28, 2014, with reasons reported at 2014 ONSC 4473, and from the costs endorsement, dated September 23, 2014, with reasons reported at 2014 ONSC 5525.

COSTS ENDORSEMENT

[1] The issue of costs in the court below was reserved to this court for written submissions after the court allowed the appeal. The result of the appeal was that the appellant Estate (defendant in the original proceedings) was entirely successful in defending the respondent’s (plaintiff’s) claim seeking a one-half interest in the subject property.

[2] The Estate seeks partial indemnity costs in the court below of $169,508 inclusive of disbursements and taxes. This is substantially less than what was awarded by the trial judge for costs of the plaintiff ($237,396.09), however, that amount included substantial indemnity costs from the date of an offer to settle served by the plaintiff two weeks before trial.

[3] The respondent raises a number of concerns about the Estate’s costs in the court below. We give effect to one of those concerns. In the course of the proceedings, the Estate was unsuccessful in two motions argued before Master Sproat, in respect of which costs were reserved. Having reviewed the reasons of the Master in the context of the litigation, the respondent (plaintiff) is entitled to partial indemnity costs for these motions, and the Estate is not entitled to costs that have been included in the bill of costs in relation to these motions. A reduction of $30,000 to the fees claimed is in order. In all other respects, the costs sought by the Estate in respect of the proceedings in the court below are fair and reasonable and properly supported by the details set out in the bill of costs.

[4] Costs in the court below are therefore fixed at $134,478.68, inclusive of applicable taxes and disbursements, payable by the respondent (plaintiff) to the Estate. This is comprised of $110,413.50 in fees, HST of $14,353.75 and disbursements (including taxes) of $9,711.43.

“Janet Simmons J.A.”

“K. van Rensburg J.A.”

“C.W. Hourigan J.A.”