SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: ES-780-12

DATE: 2013-01-15

RE: In the Estate of Sarah McMahan Grafton

Margaret Ross, also known as Sarah Margaret Ross, Executor and Trustee of the Estate of Sarah McMahon Grafton, Deceased, Applicant

A N D:

The Canada Trust Company, Executor and Trustee of the Estate of Sarah McMahon Grafton Deceased, S. Graeme Ross, J. Gordon Ross, Grafton J. Ross, James H. Ross and The Estate of Sarah Mary Jane Ross, Respondents

BEFORE: The Honourable Madam Justice J. A. Milanetti

COUNSEL:
Steven D. Gadbois, for the Applicant

Ross F. Earnshaw, for the Respondent The Canada Trust Company

Mark A. Radulescu, for the Respondents Graeme Ross, Grafton Ross and James Ross

Steven D. Gadbois, for the Respondent Gordon Ross

C O S T S E N D O R S E M E N T

[1] The successful responding parties to this application seek their respective costs of this matter. The responding beneficiaries (three of Ms. Ross’s four sons) seek costs of $9,486.86 (inclusive of fees and disbursements) on what appears to be a substantial indemnity basis; the respondent Canada Trust seeks costs on a partial indemnity basis.

[2] Although Canada Trust argues that they could be seeking substantial indemnity costs (given efforts made by them to settle), I do appreciate their reasonable position in this regard. Their bill of costs also acknowledges that only 50 percent of the lion’s share of the fees docketed on this file should be attributed to this particular application as Canada Trust have also launched their own application for instructions from the court as to further steps, given the deficit position of the estate account, the ongoing need to insure the property, and pay its taxes. This latter concern is most acute given the threat of a tax sale by the municipality. This application was not before me.

[3] It is clear to me that the successful respondents are entitled to their costs. I would award both costs on a partial indemnity basis. That being said, the amounts sought are considerably different – partial indemnity fees of the Ross sons (represented by Mr. Radulescu) by my calculation being two-thirds of $8,143.53 plus $390.00 counsel fees (therefore $5,689.02) plus disbursements of $953.51 for a total of $6,642.53. Counsel for Graeme, Grafton and James Ross shall thus be awarded costs of $6,642.53.

[4] The costs sought by Canada Trust ($12,277.12 even on the stated partial indemnity basis) are significantly higher given primarily to the seniority and corresponding hourly rate of lead counsel Mr. Earnshaw. (1979 call and thus $550 per hour versus Mr. Radulescu’s 2010 call and $195 per hour).

[5] While I do not fault Canada Trust for having somewhat of Mr. Earnshaw’s age (at the bar) and experience; I must consider all of the Rule 57 factors when exercising my discretion in awarding costs. One of those factors is “the amount of costs an unsuccessful party could reasonably expect to pay”.

[6] In this regard I note that Canada Trust fees should come as no surprise to Ms. Ross as Canada Trust’s bill was forwarded her counsel in advance of the hearing (at the same time as an offer to dismiss without costs was tendered).

[7] I further note that the dockets presented by counsel for Canada Trust demonstrate that Mr. Earnshaw properly and carefully utilized more junior and thus less expensive counsel for much of the litigation, including for instance attendance at the cross-examinations. Additionally, I note that Ms. Ross’s own counsel’s partial indemnity account articulates fees of $11,700.00 (and he has a 1993 call).

[8] All of this being said, I must put the costs at a sum that I consider to be reasonable. The aggregate fees of $12,277.20 plus $6,642.53 or $18,919.73, I find exceeds the amount that an unsuccessful litigant would reasonably expect to pay in the circumstances of this case.

[9] Moreover, it was my view that counsel for the objecting beneficiaries spearheaded the response to the application. While counsel for Canada Trust did his usual capable job; in my view he took pains to be second chair; likely politically, to not aggressively oppose Ms. Ross’s application. As a result, I would reduce the costs sought by Canada Trust to $8,000.00 in fees plus disbursements and H.S.T.

[10] All of these costs shall be paid by Ms. Ross rather than the estate. It is neither fair nor legally appropriate for the estate to bear the legal expenses affiliated with Ms. Ross’s application. The costs shall thus be payable by the applicant forthwith. If she unable to satisfy this indebtedness within 30 days, I direct that the recipients of the costs order may offset the costs against the proceeds of the sale of the property.

[11] While I acknowledge Ms. Ross’s argument that both she and Canada Trust proceeded in good faith, I do not accept that there should be no consequences to persisting in costly litigation even and perhaps particularly, in estate matters.

DATE: January 15, 2013

Milanetti J.