Trotter v. Trotter, 2013 ONSC 3041

CITATION: Trotter v. Trotter, 2013 ONSC 3041

BARRIE COURT FILE NO.: CV-09-0807-00 & CV-08-0298-00ES

DATE: 20130524

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

WILLIAM JOHN TROTTER and CATHERINE RUTH TROTTER and ROBERT TROTTER

Applicant/Responding party

– and –

JOHNSTONE DEMPSEY TROTTER and JAMES BELL, personally, and in their capacity as ESTATE TRUSTEES WITH A WILL IN THE ESTATE OF AUDRIE JEAN TROTTER

Respondent/Moving party

COUNSEL:

Bradley Teplitsky, for the Applicants William John Trotter and Catherine Ruth Trotter

Chris Scott for Applicant Robert Trotter

Jordan D. Oelbaum and Elizabeth A. Bocek for the Respondent trustees

Michael Adams for the Respondent Johnstone Dempsey Trotter in his personal capacity

MOTION HEARD: October 11 and 12, 2012 and January 7-9, 2013

COSTS

M. P. EBERHARD

[1] On October 11 and 12, 2012 and January 7-9, 2013 I heard a motion for Summary Judgment brought by the Respondent John Trotter and co-trustee James Bell (Moving Party) and opposed by the Applicants (Responding Party) whom in my ruling I identified as Bill and Kate Trotter with the later added party Robert Trotter who was separately represented.

[2] Because all parties but one share the same surname I speak of them by their given names for ease of reference.

[3] Summary Judgment was granted dismissing the claim seeking to set aside the 2005 will of Audrie Trotter. I found that subsumed in that dismissal is the issue of fraud in relation to the inter vivos transfer of the farm.

[4] In reasons released February 22, 2013, I directed that Parties may address costs with written submissions of no more than ten pages together with a Bill of Costs and any offers by delivering same to the judicial secretary in Barrie as follows: Moving Party by March 8, 2013, Responding Party by March 22, 2013 and reply by March 28, 2013.

[5] The Moving Party exceeded the length of the permitted submission. The Moving Party and Robert, without the benefit of counsel, complied with time requirements.

[6] The Responding Party requested and was granted an extension of time to March 29, 2013. On April 1, 2013 a further fax was received indicating the Responding Party’s intention to move for a recusal order. I convened an attendance on April 10, 2013 to plan for same. The parties agreed to preserve that issue for the pending appeal and fixed new dates for costs submissions in compliance with which all submissions were before me on May 8, 2013 which I now address.

[7] In my Summary Judgment of some 40 pages I made findings. These are findings as to process and findings as to substance. My findings as to process relate to how the matter unfolded before me. Process is referred to in the costs submissions of all parties. My findings as to substance trigger the costs principles referred to in the costs submissions of all parties. I will first address the factual underpinnings asserted in the cost submissions received insofar as I could know anything about such assertions from the hearing that unfolded before me.

[8] The following paragraphs in the cost submissions of the Moving Party are factually consistent with my findings:

Liability: 2, 3, Scale: 4, Offers: 6, 7, Conduct Unreasonableness: 8, 9, 10, 11, Refusal to concede: 13 to footnote 5, 14, 15, 16, 17, Delay: 20, 21, 23, 24, Losses from delay: 0 Filings and Service: 28, 29, Personal attacks: 30, 31, Quantum General: 33, Expectations: 35 letter and motion, Incurred: 38, 40 oral argument, 41, 42, 43 Reply: 1, Offers: 0, Unreasonableness: 3, 4, Fraud: 8, Losses: 0, Filings and Service:14, 18, 19, Conduct: 0, Quantum Expectations: 25.

[9] The following paragraphs in the cost submissions of Robert are factually consistent with my findings:

Page 2 (d), page 3 para 1, para 4

[10] The following paragraphs in the cost submissions of the Responding Party are factually consistent with my findings:

Directions: 1 to second footnote, Reasonableness: 2(a), Elevated costs: 0 Allegations of fraud: 0, Failure to Admit: 0, Delay: Losses: 9, Filing and Service: 0, Character: 0, Factum: 16 first three sentences, Conduct: 0, Length of factum: 21 first two sentences, Expectations: 25(c) (d)

[11] I am fixing costs not assessing costs. I am fixing costs based on my findings. As is customary, the costs submissions add other assertions relating to the process that were not patent in the proceedings as they played out before me. I am cautious in making findings of fact in reviewing those submissions but consider the perspective of each party in their explanations of time spent or necessary in the circumstances as they perceived it.

Entitlement

[12] This is patently not a case that invites any portion of the costs for the Applicant to be paid from the estate. Nor is it a circumstance that should shield the unsuccessful parties from usual cost consequences.[^1] The execution, testamentary capacity and knowledge and approval of contents were not in issue. The only live allegation was undue influence by the beneficiary. All cost associated with this litigation, if paid from the estate would in effect be paid by the beneficiary who has successfully fended off the attack. I reject the Responding Party arguments in paragraph 2 as inconsistent with the findings made. I did indeed remark that the invoices “require vigilance” as a motion judge is required to seriously consider the evidence put forward. The reasonableness of a challenge to a will as a factor does not envisage that only matters where there is no dispute should have cost relief. There was dispute here but my judgment sets out my finding that it was not evidence based.

Scale

[13] I find that offers in this case are a factor in the exercise of my discretion but this is not a circumstance where Rule 49 applies directly.

[14] When offers are made in judicial pre-trial settings, the adjudicating judge knows nothing of them. These discussions were revealed in the costs submissions by both represented parties. There is dispute as to whether personalty was offered and whether the monetary sum was over and above the amount intended by Audrie to pass to Kate. This discussion does not assist my exercise of discretion.

[15] The offer to let the Applicant out of the litigation without costs after examinations of key independent fact witnesses is not insignificant. There were already substantial costs at the time of the offer in October 2011. If nothing else the offer informs the court that this, and the opportunity for judicial pre-trial, put the unsuccessful parties on notice to assess their risk. This opportunity impacts on expectations.[^2]

[16] As to conduct of the Responding Party impacting on the costs, my judgment made findings and the Moving Party made submissions consistent with those findings. Instructed counsel for the Responding Party advanced a vitriolic position that gave rise to those findings. Robert allowed himself to be drawn in and through counsel he adopted the assertions.

[17] I do not lump Robert in with the other Applicants entirely. He played a passive role in the proceeding before me. His counsel did not add more than a few minutes to the time expended. I cannot however relieve Robert of his complaints about his counsel. That is for another forum.

[18] As to delay, filing and service impacting on costs, my judgment made findings about the several occasions in the process before me that impacted oral argument and necessarily impacted preparation to address a moving target.

[19] As to losses from delay put forward as a factor to be considered under rule 57.01(1)(f)(i) as improper, vexatious or unnecessary, I decline to consider that in the costs context because I have insufficient information and find such loss, if generated by the Responding Party as alleged, could be addressed in a separate claim. Here it merely muddies the water.

[20] In my exercise of discretion, I lean towards substantial indemnity for the reasons set out in these preceding paragraphs as the approach and intransigence of the Responding Party made their claim much more destructive and difficult than it needed to be. It is not, however, an automatic step up to that scale in “a purely mathematical exercise”[^3]

Fees and Disbursements Incurred

[21] The moving party for the Estate claims substantial indemnity costs (incl. tax) as follows:

for fees (less than actual rate) $317,712.39

for disbursements $ 14,476.57

total $332,865.57

total partial indemnity $265,865.71

total actual rate $347,341.79

[22] The moving party for John personally claims full indemnity costs as follows:

for fees (less than actual rate) $118,34350

for disbursements $13,530.38

for tax $ 6,300.89

total $138,174.77

[23] I find it appropriate that the Estate had separate representation from John personally. Focus could be thus shone on the testator without distraction in deflecting attacks on John personally. In oral presentation there was little discernible duplication. One counsel attended examinations.

[24] For the Estate there was a team approach which allows work to be performed by others at a lower rate. This is perfectly appropriate but always involves some measure of inherent duplication.

[25] Moving for Summary Judgment is a tool designed to avoid costs if a trial is not necessary.

[26] The Moving Party’s materials were vast. Recorded time devoted to preparation of these materials was prolonged. On the one hand the materials were as complete as they needed to be to respond to a scattered challenge. On the other hand, they were remarkably vast. As pointed out by the Responding Party, the facta and even the costs submissions were unusually voluminous.

[27] All that having been said, it is difficult to fault a party that is prepared. Preparation is a corollary of the case that must be met. As motion judge, I too spent long hours marshalling the scattered evidence and the evolving positions of the Responding Party which gave me a sense of the challenge the Moving Party faced.

[28] Balanced against this titanic effort, however, is proportionality. Should a case determined by motion for Summary Judgment generate actual costs of almost half a million dollars and if spent, should it be recoverable on a substantial indemnity basis?

[29] Hourly rates for counsel for the Estate are steep at $415-500 and $240-300. Those claimed by counsel for John at $365 (then reduced to a “full” indemnity scale) are more typical of what the Simcoe County market will bear. But both the Estate and the Responding Party chose counsel from a market where expectations are higher so that is a neutral factor.

[30] The Responding Party is unlikely to have subjectively expected such costs since they are noteworthy even to a court daily involved in litigation costs. Objectively however there should have been an expectation that a scorched earth attack would be met with every available defence. Correspondence in October 2011 warned that costs were already $110,000 and a motion in August 2012 generated a cost outline showing increasing hourly rates. As litigation proceeds to an adjudicative stage, increased activity predicts increased cost which cannot then be said to be unexpected.

[31] Taking all this together, I fix costs as follows:

The Applicants shall pay to the Estate costs of $275,000 all in and to John Trotter personally $125,000 all in. This order for costs is joint and several between the Applicants Bill and Kate Trotter but joint and several to the extent of 20% only on the Applicant Robert Trotter.

EBERHARD J.

Released: May 24, 2013

[^1]: Smith Estate v. Rotstein. [20101 O.J. No. 3266 /S.C.J.) (‘ para. 8-10,

[^2]: Rankin Construction Inc. v. Ontario (2013), 2013 ONSC 1625, 2013 ONSC1625 (Ont. S.C.J.)

[^3]: Ricchio v. Rota (2011), 2011 ONSC 7500 (Ont. S.CJ.)