COURT FILE NO.: CV-13-1143
DATE: August 19, 2013
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Peter Allan Lacey, Plaintiff
AND:
Grace Elizabeth Lacey, Defendant
Public Guardian and Trustee on Behalf of Grace Elizabeth Lacey, Defendant
Barbara Smart, Defendant
Robert Watt, Defendant
Victor Hohots, Defendant
Victor Hohots and Hohots Watt LLP, Defendant
Maurice Dermot O’Kelly, Defendant
BEFORE: André, J.
COUNSEL:
Murray N. Maltz, Murray Maltz Professional Corporation, for the Plaintiff
Tim Gleason, Dewart Gleason LLP, for the Defendants, Robert Watt, Victor Hohots and Victor Hohots and Hohots Watt LLP
Christopher Du Vernet, Du Vernet, Stewart Barristers and Solicitors, for the Defendant Barbara Smart
Alexander D. Rose, Stikeman Elliott LLP for the Defendant, Maurice Dermot O’Kelly
HEARD: Submissions received in writing
COST ENDORSEMENT
[1] I must now decide what quantum of costs would be fair and reasonable following my dismissal of the Applicant’s motion for consolidation of an Action and an Application. The overarching issue in both matters involve the determination of who owns a cottage which initially belonged to Grace Lacey, the 86 year old terminally ill mother of the defendant Peter Lacey who brought the motion for consolidation.
[2] I dismissed Mr. Lacey’s motion because the two matters were at different stages of proceedings, that they involved different issues and that the inevitable delay resulting from a consolidation would be inimical and indeed detrimental to Mrs. Lacey’s interests.
Overview
[3] Grace Lacey owned a small cottage in Muskoka. Unfortunately Mrs. Lacey was stricken by a grave illness and, while under her daughter’s influence signed an agreement to sell the cottage to one of the defendants, Maurice Kelly. This sale was contrary to the provisions of Grace’s will in which she reportedly provided that following her death, the cottage would go to her son, Peter Lacey, the applicant/moving party. Following her signing of the sale agreement, Peter then transferred the cottage from his mother’s name to both himself and his mother. The consideration for the transfer was the nominal sum of $2.00.
[4] Following Peter’s action, Grace Lacey, through her litigation guardian, the Public Guardian and Trustee (PGT), commenced an application to regain full ownership of her cottage. This application was scheduled to be heard on July 18, 2013, two days after I heard Peter Lacey’s motion for consolidation. Peter Lacey commenced an Action in 2013 but by the time the court heard his motion, there had been no pleadings filed in his action. The different stages in the Application and Action was one of the reasons that I dismissed Peter Lacey’s motion for consolidation.
Legal Principles
[5] In assessing the propriety of awarding costs in this matter I am guided by a number of principles that emerge from the relevant statutes and the applicable jurisprudence. I have the discretion, pursuant to s. 131 of the Courts of Justice Act and s. 57.01 of the Rules of Civil Procedure to award costs to the successful party or in this case, parties.
[6] Secondly, costs should follow the cause and it is generally appropriate that the losing party should be responsible for the costs of responding to the motion.
[7] There are also a number of determinants in quantifying the quantum of costs to be awarded including but not limited to the following factors:
The year of call of counsel and his or her hourly rate;
The complexity of the matter;
The reasonableness or otherwise of the parties’ actions; and
The offers to settle if any.
[8] I am mindful however, that the determination of costs does not require blind acceptance of a bill of costs even if it appears that the number of hours spent on the matter and the hourly rate of counsel who litigated the matter are reasonable.
[9] I am required to take an objective view of the costs claimed and consider whether, in all the circumstances of the matter, the costs award is both fair and reasonable. See Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.) at para. 24.
[10] I am also guided by the Court of Appeal’s admonition in Zesta Engineering Ltd. v. Cloutier, 2002 45084 (ON CA), [2002] O.J. No. 3738 (Ont. C.A.) at para. 4, that costs awards should reflect not so much the actual costs of the successful litigants but what the court regards as fair and reasonable.
Analysis
[11] There are other factors in this matter which I must consider in ensuring that the quantum of costs is fair and reasonable. The only defendant who filed a factum in response to the moving party’s motion and related material was Maurice Kelly. His counsel played the leading role in countering the arguments for consolidation and presenting case law that justified a dismissal of the motion.
[12] Counsel for the Public Guardian and Trustee and that for the respondent law firm, Robert Watt, Victor Hohots and Hohots Watts, LLP played a supporting role in that they adopted the submissions of counsel for Maurice Dermot O’Kelly although making a few of their own.
[13] All parties also concede that this was a relatively uncomplicated matter that did not require a significant amount of preparation or other resources.
[14] What, then, is the appropriate costs award for the defendant, Grace Lacey? Counsel for the Public Guardian and Trustee, submits that costs on a partial indemnity basis, fixed at $2,389.95, based on approximately 14 hours of preparation at an hourly rate of $245 an hour, with the year of call being 2009, is appropriate. In ordinary circumstances, it clearly would be. However, in this case, counsel for Grace Lacey did not file any responding material. The matter was relatively uncomplicated. Counsel’s submissions were relatively brief and to some degree, echoed those made by counsel for Maurice Dermot O’Kelly. The costs claimed by the Public Guardian and Trustee on behalf of Grace Lacey are not commensurate with the complexity of this motion and the role of counsel for the Public Guardian and Trustee, in responding to it. In my view a costs payable by the applicant Peter Lacey to the defendant Grace Lacey should be fixed at $750.00 inclusive payable within 90 days.
[15] The defendants Robert Watt, Victor Hohots and Hohots Watt, LLP seek costs on a partial indemnity basis fixed at $1853.06. Counsel’s year of call is 2012 and the hourly rate is $165. Much of the costs claimed relate to preparation time of seven hours. In my view, this amount of preparation time is excessive given the limited submissions of counsel in this matter. As with the defendant Grace Lacey, the defendant’s law firm filed no responding materials and played a secondary role in countering the submissions of the applicant’s counsel. In my view costs fixed at $750.00 inclusive, payable by the applicant to the defendants Robert Watt, Victor Hohots and Hohots Watt, LLP, would be fair and reasonable in the circumstances of this case.
[16] The defendant Barbara Smart claims costs of $2,815.40 on a partial indemnity basis. The hourly rate charged by both counsel for Ms. Smart are not unreasonable given their year of call and experience level. The combined partial indemnity rate for both counsels is $575 per hour. Given that neither counsel filed any responding material, the uncomplicated matter of the issue and the secondary role they played in responding to the motion, I do not think that the costs claimed is fair and reasonable. In my view, costs fixed at $1,500 would be fair and reasonable in the circumstances of this matter.
[17] What of the costs claimed by the defendant Maurice Kelly? He claims costs of $5,524.12 inclusive on a partial indemnity basis. This amount represents 19.5 hours of preparation time by a student-in-law and another lawyer and another 2.9 hours by counsel of record for the defendant, Mr. Kelly. The latter also claimed costs for an additional 2.25 hours of costs for preparation for the hearing of the motion.
[18] While counsel for Mr. Kelly prepared the responding materials in response to the applicant’s motion and played the lead role in making oral submissions, the uncomplicated nature of the sole issue in this matter does not justify the costs claimed by the defendant. Neither did it arguably require the involvement of two lawyers and a student at law in the preparation of responding materials.
[19] In my view, costs of $3,500 inclusive payable by the applicant to the respondent would be fair and reasonable.
[20] Given that the applicant was the losing party in this matter, there shall be no costs awarded in his favour.
Conclusion
[21] The applicant will pay the costs of defendants Grace Lacey and the Public Guardian and Trustee for Grace Lacey fixed in the amount of $750 inclusive, within ninety (90) days of today’s date.
[22] The applicant will pay the costs of the defendants Robert Watt, Victor Hohots and Hohots Watt, LLP fixed in the amount of $750 inclusive, within ninety (90) days of today’s date.
[23] The applicant will pay the costs of the defendant Barbara Smart, fixed in the amount of $1,500 inclusive, within ninety (90) days of today’s date.
[24] The applicant will pay the costs of the defendant Maurice Dermot O’Kelly, fixed in the amount of $3,500 inclusive, within ninety days (90) of today’s date.
“Justice I.W.André”
Andre, J.
Date: August 19, 2013