SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 11-53100

DATE: 2013\01\03

RE: Slavia Lukic, Plaintiff

AND:

Thomas Zaban personally and in his capacity as personal representative of the Estate of Steve Zaban, deceased et. al. , Defendants

BEFORE: Master MacLeod

COUNSEL:
Craig M. Bater and Lauren M. Angle for the Plaintiff

Geoffrey B. Shaw and Colin Pendrith for the Defendants

HEARD: July 10th and September 18th, 2012

COSTS ENDORSEMENT

[1] In reasons released November 5th, 2012 I granted certain items of temporary relief following an extensive motion argued over two days. Because of the nature of the motion and its relationship to the merits of the action itself, both parties invested more than $100,000.00 in legal time in relations to this matter. Both parties now seek their costs of the motion.

[2] For the reasons that follow, I have concluded that the moving party plaintiff should have modest costs of the motion proportionate to the relief granted. The bulk of the time spent on the motion was in fact time spent gathering evidence and examining the merits of the plaintiff’s claims. Those costs will be appropriately dealt with as costs of the action itself.

[3] The defendant has asked to make further submissions regarding a loan attached to the automobile. I have declined to permit this. This is not an appropriate case for admission of fresh evidence or for further argument. The issues relating to the automobile were fully canvassed during argument.

Costs of the motion

[4] The defendants urge the court to take the view that the motion was largely unsuccessful and to award costs against the plaintiff. The defendants argue that this was a largely ill-conceived omnibus motion requesting at least nine separate heads of relief most of which were not granted. In particular the plaintiff failed to persuade the court that she was entitled to interim support under the dependant relief provisions of the Succession Law Reform Act.

[5] It is certainly true that there are situations in which a party launches a barrage of motions involving inordinate expense to the responding party and enjoys very little success. In those circumstances it may be unjust to permit minor success to insulate the moving party from cost consequences. That would be particularly unjust if the costs incurred in respect of the motions do not move the action forwards towards resolution. I do not see that as being so in this case.

[6] Firstly the estate has been implacably hostile to the defendant and has not admitted that there is any basis to any of her claims. In this case there is strong evidence that the automobile was gifted to her by the deceased and yet she has been deprived of possession of the vehicle and accused of theft. She also has documentary evidence to support her claim to an interest in the home. Accordingly I found that there was sufficient evidence to support an order under Rule 44 in relation to the vehicle as well as a Certificate of Pending Litigation in relation to the house. This is not insignificant relief.

[7] Secondly, the exploration of the merits of the plaintiff’s claims which has taken place in the context of this motion is not irrelevant to the action itself and need not be wasted. The vast majority of the docketed time was spent investigating the merits, cross examining on affidavit material and gathering evidence from corroborating witnesses. For the most part these are costs that would have been necessary whether or not the motions were argued. Indeed, if counsel act prudently they should be able to utilize these resources in lieu of discovery and to shorten or focus an eventual trial. Thus, subject to the discretion of the trial judge it seems most appropriate that the bulk of the costs be dealt with as costs of the action.

[8] Between December of 2011 and September of 2012 each of the parties each invested legal time with a value of more than $100,000 in pursuing this matter. Because of the nature of the motion, requesting interim support, interim possession of personal property, and securing an interest in land, the merits of the plaintiff’s claims were central issues. It risks real injustice to award these costs to one of the parties in connection with the motion when those very same costs will be claimed in the action and it is not clear which party will prevail. In those circumstances an award of costs to either party on an interim basis would seriously tilt the scales of justice and potentially impede resolution on the merits. Just because the plaintiff failed to establish a right to certain interim relief does not mean she cannot succeed in the action itself. Conversely entitlement to interim relief is no guarantee of success at trial.

[9] In my view the plaintiff should have modest costs in relation to the claim for interim recovery of personal property and the granting of a C.P.L. I fix those costs at $6,000.00 which is composed of $5,000 for fees plus HST and the disbursements for service, setting down the motion and a portion of the photocopies.

Additional Argument

[10] The plaintiff has elected to have the estate pay funds into court rather than to have the estate deliver up possession of the automobile. This is in accordance with paragraphs 36 and 37 of my reasons. The estate is to post $35,000.00 with the accountant of the Superior Court to stand to the credit of the action.

[11] The defendants sought leave to make further submissions in connection with a lien supposedly attached to the vehicle and paid off by one of the executors. I declined to hear this argument. Firstly this is not new evidence. It is referred to in the affidavit of Mr. Zaban. Secondly it is not an issue that would clearly result in a different outcome. The amount paid into court is security and will be held by the accountant to the credit of the action. If the plaintiff is not successful in her claim then the funds will be returned to the estate or to the trust as the case may be. The amount to be paid into court is an amount which is in the discretion of the court.

The venue motion

[12] Although I had understood that the venue motion was to be dealt with in writing, both counsel seek to make submissions by conference call. That is appropriate. Accordingly the Registrar will arrange an appointment and the venue motion will be spoken to at that time.

Summary & Conclusion

[13] In conclusion, the plaintiff shall have costs of the motion in relation to the recovery of personal property and the claim to an interest in land. Those costs are fixed at $6,000.00 and are payable forthwith. The balance of the costs incurred in respect of the motion shall be treated as costs in the cause.

[14] I decline to hear further submissions in respect of a lien attaching to the automobile. The estate is to pay into court the sum of $35,000.00 to the credit of the action.

[15] The Registrar will set a date for a conference call to permit counsel to speak to the venue motion and that motion is adjourned to such date.

Master MacLeod

Date: January 3rd, 2013