Maracle v. Maracle, 2012 ONSC 6306

ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-11-285
DATE: 2012/11/06

BETWEE N:

ALFRED ROSS MARACLE JR.

R. A. Detlor, for the Applicant

Applicant

• and -

NEIL MARACLE

E. A. Brant, for the Respondent

Respondent

The Hon. Mr. Justice Harrison S. Arrell

JUDGMENT ON COSTS

1The testator, in his will dated December 18, 1984, left parcels A and B of Lot 34, Concession 1 Tyendinaga Mohawk Territory to the applicant. It was alleged that the testator subsequently transferred the 2 parcels to the respondent and himself as joint tenants.

2The applicant brought this application to have the subsequent transfer declared a nullity and a declaration that the transfer in the will to him is valid. I found in favour of the Respondent and invited the parties to provide me with written submissions on costs if they could not agree. I have received such submissions from the Respondent but nothing from the Applicant.

3The Applicant brought this application in Brant County for some unknown reason as the property in question is located in Hastings County, as are the parties.

4The parties are half brothers and live within a short distance of each other. The Respondent led evidence that he is of modest means and fragile health. Another brother Bruce Maracle acted under a Power of Attorney on behalf of the Respondent.

5The Applicant argues that as a result of these facts and the weakness of the Applicant’s case that he should recover his costs on a substantial indemnity basis. I disagree.

6The Respondent could have moved to have the application heard in Hastings County and he did not. As well he argues he made a trip to Brant County to find the case not on the docket after being served with the return date. One would have thought it prudent to telephone the court to confirm the matter prior to attending especially when no confirmation form had been filed.

7The respondent urges me to award substantial indemnity costs. I conclude that substantial indemnity costs should only be awarded on rare occasions to defendants to mark a court’s disapproval of a party’s conduct during litigation, when no offers are in play.

Prinzo v. Baycrest , (2002) 600.R (3d) 474 (C.A.)

8I concluded that the Applicants argument on the motion was not persuasive. I do not, however, find that the position he took on the motion to be in any way worthy of sanction, such that substantial indemnity costs should be imposed. There is no persuasive evidence before me that the Applicant was acting in bad faith.

9There is no doubt the respondent is entitled to costs. In determining quantum the court is to consider the various factors set out in Rule 57.01 of the Rules of Civil Procedure . I have considered those factors.

10This was not a complex or complicated matter. The court must consider proportionality when exercising its discretion. The court must also consider the amount of costs the applicant could reasonably expect to pay should he be unsuccessful as he was.

11I have considered the principles in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA) , 71 O.R. (3d) 291 (C.A.) and find that costs to the respondent on a partial indemnity basis in all the circumstances is fair and reasonable to both sides and within their respective expectations.

12The Applicant seeks costs on a substantial indemnity basis in the amount of $7741.65 inclusive of disbursements. I conclude that $5,500.00 inclusive of disbursements and taxes on this uncomplicated one hour application to be fair and reasonable to both parties and is within the expectations of the Applicant. It also takes into account proportionality and the location where the Applicant elected to have this matter heard.