COURT FILE AND PARTIES
COURT FILE NO.: 05-11/13
DATE: 20131203
SUPERIOR COURT OF JUSTICE – ONTARIO
IN THE ESTATE OF GERALD WALDMAN, DECEASED
DATE OF DEATH: SEPTEMBER 28, 2012
RE: LORRAINE WALDMAN, Plaintiff
AND:
DOROTHY GORDON AS ESTATE TRUSTEE FOR THE ESTATE OF GERALD WALDMAN, DOROTHY GORDON, DAVID PRUSSKY, JEFFERY GELGOOT, RICHARD BLACKMAN, RBC LIFE INSURANCE COMPANY, SCHNURR KIRSH, SCHNURR OELBAUM AND TATOR LLP, FASKEN MARTINEAU DUMOULIN LLP, ESTHER LILIAN LENKINSKI AND PAUL SLAN, Defendants
BEFORE: MORAWETZ J.
COUNSEL: J. D. E. S. Baker, for the Plaintiff, Lorraine Waldman, Responding Party
A. T. Antoniou, for the Defendants, Fasken Martineau Dumoulin LLP, and E. L. Lenkinski, Moving Parties
HEARD: DECEMBER 2, 2013
ENDORSEMENT
[1] The substantive issue was resolved, on consent, and was the subject of a court order of C. Brown J. on April 15, 2013. The unresolved issue, which resulted in this motion, relates to the language of the release. In addition, as a result of the failure of counsel to agree on the language of the release, there is now a claim for costs arising from Mr. Antoniou having to bring this motion.
[2] In my view, this is a motion that was unnecessary. If counsel had followed the guidelines of communication, cooperation and common sense, the issue could have and should have been resolved in April 2013 as opposed to today.
[3] One cannot help but to ask the question: “what happened from April to December?”. A review of the record filed by Mr. Antoniou (no materials were filed by Mr. Baker) indicates that the moving parties attempted to resolve the issue – with little cooperation from the responding party. This is somewhat disappointing as, in the final analysis, the scope of the release, was not in dispute. The differences in language (two versions were produced to me today) were of no significance.
[4] Regrettably, it was not until last Friday that Mr. Baker proposed certain minor changes to the release. In my view, these changes did not make any real difference to the substance of the document.
[5] The release has been revised and is in a form that both parties now accept. On the issue of costs, it seems to me that the response of Mr. Baker – as documented in the record – was not responsive, and has to attract cost consequences (Rule 57.01(e)). I reiterate that this is a motion that was unnecessary.
[6] The Costs Outline submitted by Mr. Antoniou request costs on a partial-indemnity scale of $6,362.29, based on an actual rate of $8,371.44, both figures inclusive of disbursements and HST.
[7] Having considered Rule 57.01 and the principles set out Boucher v. Public Accountants, 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), costs are fixed in the amount of $2,750 inclusive of disbursements and HST. A reduction in the amount requested reflects that this was a straight-forward motion. The amount of the award reflects what the responding party could reasonably be expected to pay as a consequence of forcing the moving parties to bring this motion.
MORAWETZ J.
Date: December 3, 2013