Court File and Parties

Court File No.: 133/09
Date: 2012/03/07
Superior Court of Justice - Ontario

Re: Jae Sun Park and Deun Jong Park , Plaintiffs

-AND-

Hae Kyung Park and Young Bin Park, Defendants

Before: Turnbull, J.

Counsel:
Joan Mouland, Counsel, for the Plaintiffs
Howard A. Shankman, Counsel, for the Defendants

ENDORSEMENT on costs

The Issue:

[ 1 ] The plaintiffs have asked the court to assess costs with respect to the dismissal of the defendant Hae Kyung Park’s (Pamela) counter claim and cross claim. In this protracted action a former counsel for Pamela advised plaintiff’s counsel that there was a conflict between the late Young Bin Park and Pamela and that new counsel would have to be obtained by both of them and amendments made to the pleadings. In due course, both defendants did seek and retain independent counsel. A draft amended Statement of Defence adding Pamela’s counterclaim and cross claim was delivered to the plaintiffs in August 2010 (the amended pleading).

[ 2 ] The plaintiffs allege that Pamela’s amended pleading significantly delayed the trial of the action. They content that Pamela’s claim also increased the risk of the litigation to the plaintiff, Jae Sun Park (Pamela’s mother). They contend that before Ms. Park’s claim was made the amount in issue in the action was one-third of the value of 110 Ernest Avenue. After the claim, the amount in issue increased to 100 percent of the value of 110 Ernest Avenue. That difference was due to the change and the nature of the claim made by Pamela in her counterclaim. Originally she claimed that she was entitled to a one-third interest in the property but in her counterclaim, she claimed that the plaintiffs held their interest on a constructive trust for her benefit. Counsel have submitted during these proceedings that the value of 110 Ernest Avenue is in the range of $500,000.

[ 3 ] Ms. Mouland for the plaintiff has provided extensive dockets of her time spent, not just on the Defence and Counterclaim but on the entire action between the parties from the period of May 3, 2010 to the present time. She keeps her activities carefully docketed using the Amicus recording system. She has helpfully highlighted all the dockets for which her clients are claiming costs with respect to the withdrawal of the Cross claim and Counterclaim of Pamela. Ms. Mouland has acknowledged candidly that it would be very difficult, if not impossible, to separate the time spent on the main claim and Mr. Park’s claim from Pamela’s Counterclaim. Hence the plaintiffs are seeking costs representing one-half of the time highlighted in the dockets attached to her submissions, except for 100 percent of the time spent reviewing Pamela’s Counterclaim and Cross claim and preparing a Defence.

[ 4 ] Ms. Mouland has claimed time for work after May 3, 2010, with respect to Pamela’s amended pleading as follows:

a. 1.5 hours for time spent specifically for reviewing her counterclaim and cross claim and preparing a Defence;

b. 26.25 hours which is one-half of the 52.5 hours spent on the action after May 3, 2010 excluding the motion and appeal;

c. 2.0 hours which is one-half of the 4 hours for travel;

d. 0.35 hours which is one-half of the 0.7 hours billed as clerk time.

[ 5 ] Mr. Shankman has, in his helpful submissions on behalf of the defendant, submitted that the advancement of the counterclaim by Pamela did not significantly delay the trial of the action as suggested by Ms. Mouland. He notes that on October 26, 2010, Ms. Mouland attended at Toronto to conduct examinations for discovery of both Mr. Park and Pamela. The parties did agree that Pamela’s prior cross-examination on her affidavit would serve as part of her examinations for discovery. Mr. Shankman notes that Ms. Mouland’s examination of Pamela on October 26, 2010, included additional questions dealing with the non-constructive trust issues as well as questions relating to the counterclaim. Mr. Shankman has noted that many of the dockets for which Ms. Mouland is claiming indemnification for her clients are not specifically devoted to defending the counterclaim advanced by Pamela. He has noted a significant number of docketed hours (which total approximately 35 hours of time) which he asserts are not related to the counterclaim. He further feels that the 6 hours docketed for the attendance at the examination for discovery of Mrs. Park and Andrew Park is overstated because many of the questions dealt with the non-counterclaim related issues such as the rent claimed by Andrew against Pamela and the amounts claimed by Mrs. Park from Pamela. Mr. Shankman also feels that the time billed relative to the discoveries of Pamela is somewhat excessive, not just in the hours claimed but also by virtue of the fact that many of the issues covered related to the non-counterclaim issues.

[ 6 ] Mr. Shankman suggests that partial indemnity costs for 6 to 10 hours of work would be appropriate in the circumstances of this matter.

Analysis

[ 7 ] In my view, costs should be awarded in this matter in favour of the plaintiffs on a substantial indemnity basis. Pamela has changed her position in this litigation from initially stating that she was acting in her mother’s best interest to ultimately asserting a claim by way of constructive trust which, if successful, would have defeated her mother’s interest in the residence. Her position under the pleadings as presently constituted is that she is entitled to a one-third interest in the residence by virtue by her late father’s severance of the joint tenancy with the plaintiffs and his bequest of his one-third interest in the property to Pamela under his will.

[ 8 ] I have considered the factors enumerated under Rule 57 in assessing these costs. In my view, this is a somewhat complex issue and the changing legal position of Pamela has required counsel for the plaintiffs to carefully consider the law and issues surrounding each position taken by Pamela. The plaintiffs have been completely successful in having the counterclaim withdrawn.

[ 9 ] In any matter such as this, it is difficult to attribute the amount of time actually spent on the Counterclaim and Cross claim. In my view, the dockets and time claimed by Ms. Mouland are not totally unreasonable bearing in mind the complex nature of this action and the change of position put forward by Pamela during this litigation. In my view, having considered the dockets highlighted by Ms. Mouland as being related to this issue and considering the fact that she has divided the time attributed to the issues relating to the Defence and Counterclaim, I feel that 25 hours is an appropriate and an appropriate amount of time to have been spent by her with respect to this issue.

[ 10 ] In that respect, I am mindful of the comments made by Mr. Shankman with respect to the time spent on the examinations for discovery, the travel time to Toronto for the discoveries and the fact that some of the other time claimed by Ms. Mouland would not be solely and directly related to this discreet issue.

[ 11 ] Thus, I allow $7,500.00 for Ms. Mouland’s time at the rate of $300.00 per hour and her law clerk’s time at $85 for total fees of $7,585.00 plus HST. I find the disbursements claimed of $687.55 appropriate in the circumstances.

[ 12 ] In considering the factors required under Rule 57.01(1), I have considered the fact that the amount claimed was about one-third of the estimated fair market value of $500,000.00. The proceeding itself is rather complex in view of the fact that the property in question was purchased in 1990. The events surrounding its purchase and the money used to purchase it goes back to the 1980s. In addition, there have been extensive proceedings in the matter which have led up to this motion. The issues are very important to the parties because the property was the only major asset of the late Mr. Park and the plaintiff Mrs. Park and represented close to all of their wealth. I have taken into account the fact that Pamela Park did not start her counterclaim/cross claim until over one year after the main action was commenced and after Mr. Park’s counterclaim was commenced. The counterclaim/cross claim has delayed the trial of this action somewhat but not significantly. However, it is clear that the counterclaim/crossclaim was without merit and was unnecessary in these proceedings.

Conclusion

[ 13 ] The plaintiffs shall have their costs of the dismissal of the defendant Hae Kyung Park’s Counterclaim and Cross claim fixed in the sum of $7,585.00 plus HST plus disbursements of $687.55.

The Honourable Mr. Justice J. R. Turnbull

Date: March 7, 2012