Court File and Parties

Court File No.: CV-11-437778 Date: 2013-08-20 Superior Court of Justice - Ontario

Re: Estate of Audrie Shanly by Paul Bloore Estate Trustee of the Estate of Audrie Shanly, deceased, Applicant And: Shawn A. Shanly Martin and Kent Martin, Respondents

Before: Chiappetta J.

Counsel: Michael Burgar, for the Applicant R. Trent Morris, for the Respondent

Heard: May 13, 2013, June 5, 2013

Endorsement

[1] The parties first appeared before me on May 13, 2013. On May 8, 2013, the applicant withdrew its motion as it pertained to contempt. On May 9, 2013, the respondents paid $110,000 in certified funds to the applicant, bringing the outstanding principal and interest up to date. For this reason, I adjourned the remaining relief to June 5, 2013.

[2] On June 5, 2013, I dismissed the applicant’s motion to vary the payment schedule in the consent order of The Honourable Mr. Justice Campbell dated May 31, 2012 (the “Consent Order”). My endorsement reads, in part “that none of this [litigation] would have been necessary but for the respondents’ blatant non-compliance” with the Consent Order. I invited counsel to make written submissions on the issue of cots. I have reviewed the respective submissions and make the following order with respect to costs.

[3] Notwithstanding that the applicant was not successful on the June 5, 2013 motion; it is my opinion that it is nonetheless entitled to an order for costs. The applicant seeks complete indemnity for all steps taken by it to compel compliance with the Consent Order. A cost outline was submitted demonstrating costs on three scales - $35,543.01 (complete indemnity), $32,176.18 (substantial indemnity) and $22,630.19 (partial indemnity). The applicant submits that costs should be awarded on a complete indemnity basis in the amount of $35,543.01 inclusive of disbursements and HST.

[4] I disagree. In my view, the efforts taken by the applicant to compel compliance with the Consent Order were successful as of May 16, 2013, prior to the oral argument on June 5, 2013. The applicant should be compensated for the steps taken prior to said success, but for no others. As of May 16, 2013, the respondents forwarded post-dated cheques to the applicant and effectively continued the January 22, 2013 Order of Madam Justice Low, securing the outstanding principal and interest by the property in question (the “Unit”) in proceeds from its sale. The second appearance on June 5, 2013 and the preparations for that appearance were unnecessary.

[5] Further, while the respondents’ behaviour caused the litigation prior to May 16, 2013, I am loathe to describe it as reprehensible, scandalous or outrageous. It was misguided to be certain, but not to the extent which makes substantial indemnity costs appropriate as a form of sanction.

[6] The respondents submit that as the contempt power was never available to the applicant and as the applicant’s motion for same was not withdrawn until May 8, 2013, there should be no costs for the May 13, 2013 appearance and an award of partial indemnity in its favour fixed at $3,230, inclusive of disbursements and HST for the June 5, 2013 appearance.

[7] I do not agree that there should be no costs for the first appearance. Considering the conduct of the respondents, the steps taken by the applicant prior to May 16, 2013 were in my view necessary to trigger compliance with the Consent Order. I agree the contempt power was never available to the applicant. Its inclusion, however, was only one of the items of relief sought and was withdrawn before the hearing. In the overall factual circumstances of this motion and these appearances, the motion itself was necessary and reasonable; the inclusion of contempt as one item of the relief sought does not sufficiently deny the costs incurred by the applicant in seeking compliance with the Consent Order.

[8] I do agree with the respondents, however, costs should properly be awarded in its favour as a result of the second appearance, on June 5, 2013. The appearance was unnecessary. The undertaking with respect to the Unit was admitted to be legally adequate and the post-dated cheques were received. The respondents submit that they be awarded their partial indemnity costs of the second appearance in the amount of $3,230, inclusive of disbursements and HST. In my view, this is appropriate considering the context as outlined above and the reasonable expectations of the parties.

[9] An order will go therefore that the respondent shall pay costs to the applicant on a partial indemnity scale, as set-off, in the amount of $14,500 inclusive of HST and disbursements.

Chiappetta J.

Date: August 20, 2013