Court File and Parties
COURT FILE NO.: 144/07
DATE: 20071211
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
RICKY HONG-CHI LAW, by his litigation Guardian SUSANNA LI LI CHOW,
Plaintiff/Respondent on the Motion
- and -
ALICE MAN-CHI LAU also known as ALICE LAW and the ESTATE OF SUI-CHENG CHOW,
Defendants/Moving Parties on Motion for Leave to Appeal
Counsel:
Arnold B. Schwisberg, Counsel for the Litigation Guardian
Charles Wagman, Counsel for the Defendants/Moving Parties
WRITTEN SUBMISSIONS ON COSTS
Endorsement
GREER J.:
[1] On June 11, 2007, I delivered a written Endorsement with respect to the Defendant Lau’s move for Leave to Appeal from the interim Order of Mr. Justice Newbould dated March 15, 2007, where he dismissed a Motion by Alice Law and her mother’s Estate to remove Dr. Susanna Li Li Chow (“the Wife”) as Litigation Guardian of her husband, Dr. Rick Law, and for an Order appointing the Public Guardian and Trustee in her place.
[2] Mr. Justice Newbould dismissed the Motion and left the Wife in place as Litigation Guardian for her husband. I dismissed the Motion for Leave. At the end of my Endorsement I said the following:
If the parties cannot otherwise agree on Costs, then Costs shall follow the result of the Motion and Dr. Chow is entitled to her Costs. Counsel for Dr. Chow shall forward brief written submissions to me within 30 days of this Order and to counsel for the sister within that time limit, and he shall have 10 days thereafter to respond. Copies of dockets shall accompany the Bill of Costs.
I have received those written submissions.
[3] Mr. Schwisberg, counsel for Dr. Chow, has submitted his Bill of Costs in the amount of $8,904 on a Substantial Indemnity basis or $7,791 on a Partial Indemnity basis, plus disbursements of $376.83. GST appears to have been added to the applicable disbursements and to the fees. He says that his billable hourly rate is $400 per hour for substantial indemnity and $350 per hour for partial indemnity. He has provided no date as to his Call to the Bar.
[4] The outline of time spent shows that counsel spent 21 hours responding to the Leave Motion during the period May 2, 2007 to the date of the Motion, including 1 hour to draft the Order and Bill of Costs. None of the time spent seems excessive, and there is no duplication of effort in the Bill.
[5] Counsel points to the factors in subrule 57.01(1), which a Judge may take into account when fixing Costs of a Motion/Application/Trial before her or him. In the case at bar, the Motion was legally straightforward but factually detailed. The Wife, however, strongly opposed her sister-in-law’s position that the Public Guardian and Trustee should be appointed in her place, to be guardian of her husband’s property. The Wife was successful in opposing this Motion. The sister-in-law sought Leave to Appeal that Order. The Wife saw this Motion as a “pure tactic” by her sister-in-law to try to force the Wife out of the litigation, with the hope of trying to settle issues through the Public Guardian and Trustee instead of having them litigated in the Court.
[6] Counsel for the Wife says he was forced to draft the appropriate Orders, which the sister-in-law’s counsel did not do. Copies of letters sent by the Wife’s counsel were submitted as evidence to show that this was the case. He feels, that under these circumstances, his client is entitled to her Costs on a Substantial Indemnity scale.
[7] Charles Wagman appeared on the Motion for Leave as counsel for the Defendant Lau. He says that Costs should only be on the lower scale of Partial Indemnity and suggests that $1,500 (presumably all-inclusive but not stated as such) would be appropriate. He based this on the Costs, which were awarded by Mr. Justice Newbould on that part of the hearing, which is considered to be the interim Order respecting the sister-in-law’s Motion. Mr. Wagman says that their Motion took until “noon” or almost one-half a day. Mr. Justice Newbould reduced the Partial Indemnity rate to that of $250 per hour, which he awarded to successful counsel.
[8] Mr. Wagman takes objection to Mr. Schwisberg’s characterization of him not preparing the Orders for processing. I agree with Mr. Wagman that the Order of Mr. Justice Newbould has nothing to do with counsel having to respond to the Motion for Leave. I disagree with Mr. Wagman, however, with respect to his view that Mr. Schwisberg did not need the whole of the Record, which was before Mr. Justice Newbould, when preparing for the Motion for Leave, which he was apparently denied.
[9] Since the Costs Grid no longer applies, the Court must look to whether, in all the circumstances, the result on a fixing of Costs is “fair and reasonable.” See: Zesta Engineering Ltd. v. Cloutier, 21 C.C.E.L. (3d) 161 (O.C.A.). In Boucher Accountants Counsel for the Province of Ontario, [2004] O.J. NO. 2634 (C.A.), the Court said in paragraph 37, that in deciding what is fair and reasonable, the expectation of the parties concerning the quantum of a costs award is a relevant factor.
[10] In the case at bar I fix the Costs of the Respondent Wife at $7000 plus GST of $450 plus disbursements of $376.83 for a total of $7,826.83, as a reasonable fee for the Motion in question. The dispute, in question, between the parties has been long and acrimonious, even though the Wife and her husband have been married for some time. This was not a new marriage and some of the issues, now being dealt with, arose before the marriage occurred and could have been pursued by the husband’s sister when she knew that her brother was to be married. She waited until her brother was incapable and then brought on the litigation. The Wife is now left to deal with the issues at a time when her husband cannot defend the claims of his sister. I find the Costs to be reasonable in these circumstances. These Costs shall be payable forthwith by Lau. Order to go accordingly.
Greer J.
Date released: December 11, 2007
COURT FILE NO.: 144/07
DATE: 20071211
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
RICKY HONG-CHI LAW, by his litigation Guardian SUSANNA LI LI CHOW
- and -
ALICE MAN-CHI LAU also known as ALICE LAW and the ESTATE OF SUI-CHENG CHOW
ENDORSEMENT
Greer J.
Date released: December 11, 2007