COURT FILE NO.: CV-05-570
DATE: 2014/02/21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
R.A.1, R.A.2
P. Amey, for the Plaintiffs
Plaintiffs
- and -
J.M., C.S. and J.M., AS LITIGATION ADMINISTRATOR OF THE ESTATE OF J.S.2
G. Smits, for the Defendants
Defendants
The Honourable Mr. Justice Kent
REASONS RE: COSTS AND INTEREST
INTRODUCTION:
[1] R.A.1 and R.A.2 were sexually abused by their maternal uncles, D.S. and M.S. in the late 1970’s and early 1980’s. At the time of this trial in 2013, R.A.1 and R.A.2 were 38 and 35 years of age respectively. There is no doubt that the sexual abuse was extensive and that both R.A.1 and R.A.2 suffered significantly as a result of that abuse.
[2] This court found that R.A.1 and R.A.2 were also physically abused by their mother, the defendant, J.M., formerly J.S.1, daughter of the defendant C.S. and his wife J.S.2. R.A.1 and R.A.2 testified that their mother, J.M., administered excessive physical discipline to them over a period of time, principally in the 1980’s, prior to the breakup of their parents’ marriage in 1990. Such abuse was denied by J.M..
[3] R.A.1 and R.A.2 maintained at trial that their mother and their maternal grandparents C.S. and J.S.2 did not fulfil their fiduciary duty to protect their grandchildren from sexual and physical abuse.
[4] After an 11 day trial, the court found that the failure of J.M. to stop the sexual abuse of her sons by her brothers did not constitute a breach of her fiduciary duty to her sons, because she lacked actual or constructive knowledge that it was taking place.
[5] Similarly, the court found that the claims of the plaintiffs against their grandparents C.S. and J.S.2 were not established.
[6] The plaintiffs, however, were successful in their claims for breach of fiduciary duty against the defendant, J.M., with respect to physical assaults and in the result a damage award of $35,000 for each of the plaintiffs, was made by the court.
[7] Counsel for the plaintiffs acknowledges that a reasonable estimate of the time devoted to that portion of the claim upon which the plaintiffs were successful would be 25 per cent.
[8] Counsel for the defendant argues that as between the sons and their mother, success was divided and that there should be no order as to costs.
ANALYSIS:
[9] To consider the result in this case as one of divided success is too simplistic. Granted, the mother’s breach of her fiduciary obligation was determined to be limited to her intentional infliction of harm upon her children. The breach of her fiduciary obligation was not one that occurred on a single occasion. Her assaults upon her vulnerable children occurred repeatedly over a decade. See paragraphs 49 to 57 of the reasons for judgment.
[10] In the above circumstances, the plaintiffs should not be deprived of their costs even though their success was limited. The court should condemn the assaultive behavior of the defendant mother. That condemnation and disapproval can be achieved by an award of substantial indemnity costs against her. See: N.C. v. Blank [1998] O.J. No. 2544, at para. 184 and Norberg v. Wynrib [1992] S.C.R. 226 at para. 115.
[11] No claim succeeded as against the grandparents, C.S. and J.S.2. The claims against them were novel and overreaching in both fact and law. They were, however, represented by the same counsel who represented their daughter J.M.. Although any allocation of defence preparation and counsel time as between the S.s and J.M. would be speculative, it is clear that the lion’s share of that time was expended on the defence of J.M..
[12] In the above circumstances, even though the S.s as successful defendants should not be denied costs, their award on a partial indemnity basis should remain relatively modest.
QUANTUM OF COSTS:
[13] Counsel for the plaintiff having acknowledged that any award to his clients should be reduced by 75 per cent given their limited success, seeks $35,256.50 for fees. He asks that disbursements be allowed in full. The disbursements sought are principally the fees paid to experts. The expert evidence assisted the court in assessing damages. Those disbursements of $21,200 should be allowed in full, but all other claimed disbursements and fees reduced by 75 per cent.
[14] Accordingly, the substantial indemnity costs of the plaintiffs are fixed at $35,256.50 for fees, $3,816.52 for applicable taxes and $23,826.58 for disbursements, making a total of $62,899.60 payable by the defendant, J.M. to the plaintiffs.
[15] The S. defendants’ costs on a party and party basis are fixed at $13,000 inclusive of fees, disbursements and all applicable taxes payable by the plaintiffs to the S. defendants.
PRE-JUDGMENT INTEREST:
[16] Counsel for the plaintiffs submits that interest should be fixed at 5 per cent per annum from December 2005 when the statement of claim was issued. He accepts the submission of counsel for the defendant that J.M. could not have been aware of the plaintiffs’ potential claim for breach of fiduciary duty with respect to their claim of physical abuse until the action was commenced. He does not seek interest for the period prior to December 2005.
[17] Counsel for the defendant asks that a lower rate than that for “personal injury” claims be used. He also argues that the 8 years taken by the plaintiffs to prosecute their claim demonstrates prosecution in an untimely fashion and seeks a reduction in either the rate of pre-judgment interest or the term for which pre-judgment interest applies.
[18] This court sees no reason to deviate from the rate of 5 per cent per annum. The delay in prosecution of the claim is, however, a different matter. There was nothing so unusual about this case that it should have required 8 years from the issuance of the statement of claim to completion. The period for which pre-judgment interest payable is, therefore, limited to 5 years.
Order accordingly.
KENT, J.
Released: 21 February, 2014
COURT FILE NO.: CV-05-570
DATE: 2014/02/21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
R.A.1, R.A.2
Plaintiffs
- and -
J.M., C.S. and J.M., AS LITIGATION ADMINISTRATOR OF THE ESTATE OF J.S.2
Defendants
REASONS RE: COSTS AND INTERESTS
KENT, J.
Released: 21 February, 2014