SUPERIOR COURT OF JUSTICE - ONTARIO

NEWMARKET COURT FILE NO.: CV-11-103965-00

DATE: 20131029

IN THE MATTER OF THE ESTATE OF MARIA LEGANI, Deceased

RE: Antonio Lagani, Applicant/Responding Party

AND:

Nicola Lagani and Immacolata Montesano, in their capacity as named Estate Trustees for the Estate of Maria Lagani, deceased and in their personal capacities, Franco Lagani and Rosa Amatiello, Respondents/Moving Parties

BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN

COUNSEL:
Antonio Lagani, Applicant/Responding Party, Self-represented

Mr. R. D’Ambrosio, Counsel for the Respondents/Moving Parties

HEARD: October 24, 2013

COSTS ENDORSEMENT

[1] The respondents bring a motion seeking costs, excluding costs previously awarded to them as a result of a motion before McDermot J., and excluding the costs awarded by the Court of Appeal as a result of an unsuccessful appeal of McDermot J.’s order. The applicant, Antonio Lagani, filed a Notice of Objection which prevented the Estate Trustees from obtaining a Certificate of Appointment of Estate Trustee. The motion before McDermot J. made a determination with respect to the beneficiaries of the estate, and dismissed Mr. Lagani’s motion to sell property and for further disclosure. The Court of Appeal upheld the decision of McDermot J. and disposed of the Notice of Objection in its supplementary endorsement. In Lagani v. Lagani Estate, [2013] ONCA 440, the Court stated in its supplement endorsement at para. 4:

The appellant is required to either withdraw the Notice of Objection or to move for directions pursuant to Rule 75.06. If the Notice of Objection is not withdrawn and no motion for directions is filed within thirty days of this endorsement, the local registrar is hereby authorized to remove the appellant’s Notice of Objection.

[2] The Notice of Objection was not withdrawn by Mr. Lagani, notwithstanding the clear direction of the Court of Appeal. As a result, counsel had to take further steps to request the local registrar remove the Notice of Objection. Counsel submits that those steps have now been taken and that the respondents’ costs for proceedings prior to the motion and subsequent costs incurred following the Court of Appeal’s decision ought to be assessed against Mr. Lagani.

[3] The respondents seek costs in the amount of $19,612.80 on a full indemnity basis, including disbursements and HST. The disbursements include an unsuccessful mediation that the parties engaged in prior to the motion. The fees sought are $14,380, which would equate to approximately $9,000 on a partial indemnity basis.

COSTS PREVIOUSLY AWARDED

[4] As Justice McDermot noted in his costs endorsement, his fixing of costs was only related to the motion itself. He made adverse findings of credibility against Antonio Lagani. In awarding costs of $15,000, McDermot J. stated at para. 6, “Costs should be, under the circumstances, assessed beyond mere partial indemnity costs, under the circumstances.”

[5] The Court of Appeal also awarded costs to the respondents, fixed in the amount of $7,500. As the Court of Appeal stated in Lagani v. Lagani Estate, [2013] ONCA 159 at para. 12, “That award is to be set off against any entitlement the appellant may have to the residue of the estate and, as well, is payable by the appellant personally.”

[6] Antonio Lagani, previously represented by counsel, appeared on his own at this costs hearing. It is his position that no costs should be awarded against him for the costs incurred by the respondents. I am satisfied that costs should be awarded against him. His motion before McDermot J. was without merit and he neglected or refused to withdraw his Notice of Objection, notwithstanding the Court of Appeal’s clear direction that he do so.

ANALYSIS

[7] It is well settled that s.131 of the Courts of Justice Act, R.S.O. 1990, c.C43, provides considerable judicial discretion on the issue of fixing costs. The principles set out in Rule 57.01 of the Rules of Civil Procedure also give guidance to the court. The conduct of a party during litigation is one of many factors to be considered by the court.

[8] In Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905, the Ontario Court of Appeal provided the following guidance on costs principles at para. 8:

Modern costs rules are designed to foster three fundamental purposes:

(i) to partially indemnify successful litigants for the cost of litigation;

(ii) to encourage settlement; and

(iii) to encourage and sanction inappropriate behaviour by the litigants.

[9] The awarding of costs on a substantial indemnity basis is only granted in rare and exceptional circumstances. In Davies v. Clarington (Municipality) v. Blue Circle, 2009 ONCA 722, [2009] O.J. No. 4236, G.J. Epstein J.A., reviewed the issue of awarding of costs on an elevated scale. As she noted at para. 28:

This Court, following the principles established by the Supreme Court, has repeatedly said that elevated costs are warranted only in two circumstances. The first involves the operation of an offer to settle under Rule 49.10, where substantial indemnity costs are explicitly authorized. The second is where the losing parties engaged in behaviour worthy of sanction.

[10] I am satisfied that the respondents are entitled to costs on a partial indemnity basis, together with their disbursements as sought. I am not satisfied that Antonio Lagani’s conduct prior to the motion rose to the level of egregious conduct warranting an elevated costs sanction. He was assisted by counsel and participated in a mediation which was unsuccessful. Although there were credibility issues which drew comment in Justice McDermot’s endorsement, those issues were dealt with within his costs ruling. Although Mr. Antonio Lagani refused to withdraw his Notice of Objection, flying in the face of the Court of Appeal’s order, counsel was able to remedy that by simply requesting the registrar to remove the Notice of Objection based on the Court of Appeal ruling. I am not satisfied that the estate incurred any substantial additional costs for that step of the proceedings.

[11] In assessing costs, the overriding principle is reasonableness. I am satisfied that costs in the amount of $14,000, inclusive of fees, disbursements and HST, is fair and reasonable under the circumstances. It is ordered that Antonio Lagani pay costs to the respondents, fixed at $14,000 within thirty days of this endorsement.

MULLIGAN J.

Date: October 29, 2013