ONTARIO
SUPERIOR COURT OF JUSTICE
SIMCOE COURT FILE NO.: 133-09
DATE: March 26, 2013
BETWEEN:
Jae Sun Park and Keun Jong Park
Plaintiffs
– and –
Hae Kyung Park and Hae Kyung Park, Estate Trustee for Young Bin Park
Defendants
Joan Mouland, for the Plaintiffs
Howard Shankman, for the Defendants
HEARD: March 22, 2013
The Honourable Justice c. a. tucker
C O S T S E n d o r s e m e n t
[1] The issue is costs. The defendants claim costs and the plaintiffs resist such a claim and seek costs payable to themselves instead.
[2] Before I deal with this issue, I will deal with two outstanding matters brought to my attention by counsel during the costs argument. Firstly, I referred to Pamela Park as an owner of the property in my decision. Although she is the sole beneficiary of her father’s estate and once probate is complete and any estate debts are paid, the land will vest in her as an owner technically at this point in time she is not an “owner”. Secondly, there had been a claim for occupation rent made by the plaintiffs against Mr. Park, Sr. and I did not specifically address this claim in my decision.
[3] I found that Pamela was not required to pay rent. Mrs. Park was removed from the matrimonial home voluntarily on her part. Mr. Park and Pamela did not want her to leave the home. Mr. Park and Pamela maintained the home, including payment of taxes from the time of her departure until Mr. Park’s death without contribution by Mrs. Park. Mr. and Mrs. Park were spouses. Although the locks were changed, I repeat that the position of Pamela and Mr. Park was that Mrs. Park should have remained in the home. The delay in bringing the matter to trial does not in itself give rise to a right to occupation rent, especially when it appears that both parties contributed to the delay and neither could come to an agreement on the sale of the home. Accordingly I dismiss the claim for occupation rent.
[4] The issues that I decided in this case were the plaintiffs’ claim to set aside Mr. Park’s conveyance which effected a severance of the joint tenancy. I dismissed that claim being the heart of the action which was whether or not Mr. Park had the capacity to execute such a conveyance and whether or not he was free of undue influence in doing so. The plaintiffs also sought rent from Pamela and occupation rent from Mr. Park, neither of which I granted. The defendants’ counterclaim for a declaration that Andrew held the property in trust for his parents, and/or that the parties were tenants-in-common as a result of their actions, was also dismissed. By virtue of Mr. Park’s will, Pamela inherited his one-third interest in the home. This leaves Andrew and his mother as joint tenants of the remaining two-third interest.
[5] The defendants assert that they were successful in having the conveyance severing the joint tenancy upheld and by virtue of an offer to settle, dated May 10, 2012, they are entitled to costs pursuant to Rule 49.10(2). Pursuant to that rule, the defendants would be entitled to partial indemnity costs after the date of the offer and the plaintiffs would be entitled to costs up to the date of the offer if the plaintiffs obtain a judgment as favourable or less favourable than the terms of the offer unless the court orders otherwise.
[6] The offer provided that the property in question be sold as soon as possible with the net proceeds divided equally among the three claimants and the money owing the plaintiffs be paid from the defendants’ share and the claim and counterclaim were to be dismissed without costs.
[7] The trial lasted five full days and involved two experts on competency. The total costs claimed by the defendants is fees of $65,485 plus HST of $8,513.05 and disbursements of $13,592.72. The plaintiffs argued that the costs of the defendants’ expert of some $11,000 was excessive, pointing out that they paid only some $1,300 for a written report from their expert. We do not know how much their expert’s fee was for testifying. In any event, I am not an assessment officer nor do I have any basis to dispute the bill of the expert, so I find it to be a proper disbursement together with the other claimed disbursements.
[8] I turn now to the fees claim. It is without doubt that the defendants were the successful parties and as such are prima facia entitled to their costs. By virtue of Rule 49.10(2) the defendants are entitled to their partial indemnity costs from the time of the making of the offer provided that it meets the onus of showing that the judgment is as favourable as the terms of the offer to settle and pursuant to Rule 49.10(2) they would be entitled to partial indemnity costs up to the date of the offer. The amounts owing in costs to date by the defendants to the plaintiffs were also not included in the offer and as such I find the offer does not stand on all fours with the result.
[9] The plaintiffs also argue that the prayer for relief as framed claiming that Andrew held the lands in trust contained in the counterclaim resulted in unfocused litigation. They claim that this claim was either an admission which was accepted or that a proper motion should have been brought prior to the trial to amend the claim. A verbal motion was argued at the opening of trial and I reserved dealing on the issue. No motion for judgment based on the alleged admission was brought. Given the severance of the joint tenancy and my decision on the trust claim, I find the issue now to be moot and to have no bearing on the costs claim.
[10] The plaintiffs also assert that I should “penalize” the defendant, Pamela, for delaying the action, for removing money from her mother’s account, for unduly influencing her father, for their “baseless” claims as to the incapacity of Mrs. Park and Pamela’s claim to the property being held in trust. Firstly, the finding of the court was that there was no undue influence; secondly, the balance of these issues were not part of the trial; and finally, costs have, where appropriate, already been accorded to the plaintiffs against the defendants for many thousands of dollars.
[11] I find in all the circumstances that the defendants are entitled to their costs on a partial indemnity basis throughout as they were successful. The rate charged by Mr. Shankman, given his experience and the complexity of the issues and the time spent, appears to be within an acceptable range. Accordingly, the total time spent is by my addition some 157.8 hours and a further six hours in preparing for and arguing costs for a total of 163.8 hours at $300 an hour amounts to $49,140; this, together with the HST applicable to it and the disbursements of $13,592.72, I find to be the costs owing by the plaintiffs to the defendants.
Tucker, J.
Released: March 26, 2013
SIMCOE COURT FILE NO.: 133-09
DATE: 2013-03-26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jae Sun Park and Keun Jong Park
Plaintiffs
– and –
Hae Kyung Park and Hae Kyung Park, Estate Trustee for Young Bin Park
Defendants
C O S T S E N D O R S E M E N T
Tucker, J.
Released: March 26, 2012