Court File and Parties

Court File No.: CV-11-16706
Date: 20130715
Superior Court of Justice - Ontario

RE: Robert Blanchard, Applicant (Responding Party)

AND:

Henry Wayne Bober and Linda Bober, Respondent (Moving Party)

BEFORE: Carey J.

COUNSEL: Joseph Gyverson, for the Applicant (Responding Party)

Owen Thomas, for the Respondent (Moving Party)

HEARD: Written submissions

ENDORSEMENT on costs

[1] The successful respondents submit that the appropriate costs award here should be approximately $92,000 at the partial indemnity rate from April 2011 to July 31, 2012 and at the substantial indemnity rate from August 1, 2012 to present. The respondents’ counsel claims a total of 345.6 hours at a rate of $195 per hour for partial indemnity and $250 per hour for substantial indemnity. They will accept costs of $75,000 inclusive of HST “after taking into consideration the Applicant’s solicitor’s comment of the costs being too high”. The applicant filed no submissions and the comment that the request was “high” was from a phone conversation prior to the applicant filing a Notice of Intention to Act in Person. Subsequently no further response was filed by the applicant.

[2] This application was started in Toronto and was transferred to Windsor after a hearing in Toronto regarding directions. There were discoveries conducted by the respondents’ counsel of the applicant on June 18, 2012. On the same date the applicant’s counsel examined Mr. G. Dewar Laing, one of the lawyers for the testator. A cross-examination on the affidavit of Laurie Parent, was conducted by the applicant’s counsel by video-conference in Windsor on February 12, 2013. There was an adjournment of this application from March 11, 2013 to April 22, 2013.

Summary Judgment Motion

[3] The motion for summary judgment was set as a half-day special motion and was completed in the allotted time. The facts were not complex and the law was straightforward and settled. I was told the total value of the estate was approximately $200,000.

[4] The respondents had, pursuant to an oral suggestion of the testator, given the applicant approximately $5,000. The applicant attempted to use it to show that the will did not reflect the testator’s intention and that Linda Bober exercised undue influence. I rejected that suggestion. I also found nothing to support the suggestion that the deceased’s will was drafted from instructions from Linda Bober. I found Linda Bober’s conduct throughout demonstrated an intention to follow her mother’s wishes even at the expense of her interests.

[5] Mr. Blanchard states that he is receiving ODSP and has had serious health issues. I accepted his position as amplified on his cross-examination that his sole income source is the ODSP of $1,030 per month.

Governing Legal Principles

[6] The costs awarded in any proceeding are in the discretion of the court hearing the proceeding or step in the proceeding pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 as amended and with reference to the factors set out in rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The relevant portions of rule 57.01 read:

GENERAL PRINCIPLES

Factors in Discretion

57.01 (1) In exercising its discretion under section131 of the Courts of Justice Act, to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs. R.R.O. 1990, Reg. 194, r. 57.01 (1); O. Reg. 627/98, s. 6; O. Reg. 42/05, s. 4 (1); O. Reg. 575/07, s. 1.

Costs Against Successful Party

(2) The fact that a party is successful in a proceeding or a step in a proceeding does not prevent the court from awarding costs against the party in a proper case. R.R.O. 1990, Reg. 194, r. 57.01 (2).

Fixing Costs: Tariffs

(3) When the court awards costs, it shall fix them in accordance with subrule (1) and the Tariffs. O. Reg. 284/01, s. 15 (1).

Assessment in Exceptional Cases

(3.1) Despite subrule (3), in an exceptional case the court may refer costs for assessment under Rule 58. O. Reg. 284/01, s. 15 (1).

Authority of Court

(4) Nothing in this rule or rules 57.02 to 57.07 affects the authority of the court under section 131 of the Courts of Justice Act,

(a) to award or refuse costs in respect of a particular issue or part of a proceeding;

(b) to award a percentage of assessed costs or award assessed costs up to or from a particular stage of a proceeding;

(c) to award all or part of the costs on a substantial indemnity basis;

(d) to award costs in an amount that represents full indemnity; or

(e) to award costs to a party acting in person. R.R.O. 1990, Reg. 194, r. 57.01 (4); O. Reg. 284/01, s. 15 (2); O. Reg. 42/05, s. 4 (2); O. Reg. 8/07, s. 3.

[7] The court must exercise this discretion on proper principles. In Andersen v. St. Jude Medical, Inc., 2006 85158 (ON SCDC), [2006] O.J. No. 508, the Divisional Court summarized these principles :

1. The discretion of the court must be exercised in light of the specific facts and circumstances of the case in relation to the factors set out in rule 57.01(1): Boucher, Moon, 2004 39005 (ON CA), [2004] O.J. No. 4651, and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 2005 1042 (ON CA), 75 O.R. (3d) 638 (C.A.).

2. A consideration of experience, rates charged and hours spent is appropriate, but is subject to the overriding principle of reasonableness as applied to the factual matrix of the particular case: Boucher. The quantum should reflect an amount the court considers to be fair and reasonable rather than any exact measure of the actual costs to the successful litigant: Zesta Engineering Ltd. v. Cloutier (2002), 119 A.C.W.S. (3d) 341 (Ont. C.A.), at para. 4.

3. The reasonable expectation of the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable: rule 57.01(1)(0.b).

4. The court should seek to avoid inconsistency with comparable awards in other cases. “Like cases, [if they can be found], should conclude with like substantive results”: Murano v. Bank of Montreal (1998), 1998 5633 (ON CA), 41 O.R. (3d) 222 (C.A.), at p. 249.

5. The court should seek to balance the indemnity principle with the fundamental objective of access to justice: Boucher.

[8] Since these directions the Rules of Civil Procedure have been further amended by s. 1.04(1.1):

Proportionality – In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding [emphasis mine].

Application of Principles

[9] The lack of substance to the claim is such that the costs should be borne by Mr. Blanchard and not the estate of which the respondent Linda Bober is the sole beneficiary. There was an offer to settle for $5,000 dated June 20, 2012 inclusive of costs that was not accepted. I take this into account pursuant to rule 49.10 of the Rules of Civil Procedure.

[10] The hourly rate sought for counsel with Mr. Thomas’s experience is reasonable. However, the expenditure of almost 350 lawyer hours on this case was not reasonable. The time spent is completely out of proportion to what was at stake here. The fees sought are way out of line with comparable awards in other cases (see: Agius v. Home Depot Holdings Inc., 2011 ONSC 5272, [2011] O.J. No. 4424 at paras. 59-62, $60,000 trial fees/14 days of trial).

[11] I cannot accept that the respondents would have expected to expend close to half the value of the estate on this motion, especially as I believe that they would not have had any expectation that the applicant would realistically be able to pay anything approaching the costs claimed if they were successful. I am satisfied that this motion was brought to limit their costs by bringing the action to a quick end. I can only conclude given his limited means, that the applicant would have expected his fees to this point would be more like ten percent of what is claimed by the respondent.

[12] Rule 57.01 does not specify financial hardship as a factor to be considered. There are competing values in the pursuit of fairness and access to justice for all in our society. It has been said that our courts in Ontario are now “only open to the rich” and rising legal costs are forcing many litigants to become self-represented (see York University v. Michael Markicevic, 2013 ONSC 4311).

[13] On the other hand the concern has been expressed that taking into account the impecunious state of one party could create a situation where “litigants without means can ignore the rules of the court with impunity” (see Myers v. Toronto (Metropolitan) Police Force, 1995 11086 (ON SCDC), [1995] O.J. No. 1321 (Div. Ct.), at para. 22).

[14] Given the fundamental nature on access to justice, and the overriding principle of reasonableness, I conclude that in a case like this where the action has now concluded and there is no risk of the applicant ignoring the rules of the court and no future conduct to deter, the losing applicant’s means should be considered and falls within rule 57.01(i), “any other matter relevant to the question of costs” (see: Walsh v. 1124660 Ontario Limited, 2007 27588 (ON SC), [2007] O.J. No. 2773 (Sup. Ct.) at paras. 15-20).

[15] The material before me on the motion made it clear that while the applicant could not establish his dependency on the testator, he was living in marginal circumstances and the gifts and kindnesses shown by his mother during her life were significant to him given his circumstances. His life has not been marked by success or accomplishment after being placed in care and foster homes after his parent’s marriage disintegrated as a result of alcohol abuse and domestic violence. He experienced personal problems and problems with the law. His health is precarious and he does chores and small jobs to supplement his ODSP income. His sister, whom his mother was pregnant with at the time of her siblings being taken into care, was able to enjoy her mother’s guidance as well as her step-father’s in a stable, loving family that apparently enjoyed a reasonable level of comfort. She should neither feel guilty nor be penalized for this. Her brother’s background and financial precariousness are, however, a relevant consideration in determining what is reasonable in the circumstances.

[16] Given his circumstances I do not conclude that his bringing of the application or the rejection of the settlement offer warrant the award of substantive costs under rule 49.10. Further, I conclude that his circumstances are relevant, not just under 57.01(1)(0.b) but under (f )(i).

[17] I do not find the applicant’s conduct of the case in the circumstances, to be of the egregious or reprehensible type that would warrant elevated costs.

[18] There were disbursements claimed of $3,087.16 inclusive of HST. This amount included a cost award to the applicant’s counsel that after deducting a cost award to the respondents’ lawyers of $500 was $795.22. A previous cost award payment is not a proper disbursement. The rest of the disbursements are reasonable. Given all of the circumstances and considering the factors set out in rules 49.10, 1.04(1.1) and 57.01, I fix the costs to be paid by Mr. Blanchard at $8,000 inclusive of HST and disbursements.

Original signed “Justice Carey”

Thomas J. Carey
Justice

Date: July 15, 2013