ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-37156
DATE: 2014-04-24
BETWEEN:
GRAEME MCMASTER
Applicant
– and –
MALCOLM JAMES MCMASTER, MARY ROSE MCMASTER, LINDA MCMASTER, JAMES W. OLIVER, and TURKSTRA MAZZA ASSOCIATES
Respondents
Clare E. Burns, for the Applicant
Respondents Malcolm and Linda McMaster, Self-represented (formerly represented by Marc Munro)
HEARD: February 7, 2013
AMENDED COSTS JUDGMENT DATED 30TH APRIL 2014
WHITTEN J.
[1] Judgment was released in this matter the 28th February, 2013. The judgment concluded with the usual invitation for counsel to confer and possibly agree with respect to the level and appropriate quantum of costs. Failure to achieve accord would necessitate the filing of written submissions. Accord was not achieved. The costs submissions of the applicant although promptly served upon the respondent, did not come to the attention of the Court until recently. The respondent has not filed any such submissions.
Issue
[2] The Court must decide:
Whether or not costs on a substantial indemnity basis are payable by the respondent;
Whether the quantum of costs and disbursements are appropriate. The disbursements in this matter do not present as being untoward.
Analysis
[3] Costs pursuant to S.131 of the Courts of Justice Act are “in the discretion of the Court, and the Court may determine by whom and to what extent the costs shall be paid.” The exercise of a discretion implies an eye to what is objectively reasonable and just.
[4] Rule 57.01 of the Rules of Practice lists a series of factors for a jurist to consider. There is an emphasis on the behaviour of a party both before and during any litigation. The former time is one encompassed within the concept of “the importance of the issues at stake.”
[5] In this matter the principle issue was the conduct of the respondent as a fiscal guardian of his mother’s assets pursuant to the Substitute Decisions Act (SDA). The original judgment in this matter was quite damning of his conduct in which he depleted his mother’s assets and put her remaining assets at risk. Examples of the later are the outstanding property and personal taxes, and the CIBC indebtedness for trading on the market. His fiscal stewardship was described by the Court as “a disaster for his mother”.
[6] The later time period, namely the conduct of the party during the litigation is invariably informed by the behaviour in the former period which generated the issues in import. In other words, if the fiscal management was as bad as the Court has characterized it, why would the respondent put the applicant to the expense of pursuing the litigation and to some extent perpetuating his mother’s financial vulnerability.
[7] There is this popular belief or myth in estate matters, or matters closely related, such as the application related to fiscal guardianship, the estate or the incapable person pays the legal expenses. As Justice Brown notes in Fiocco v. Lombardi Ontario Superior Court 2009 Carswell 5185, at paragraph 32, this is not a principle cast in stone. One cannot ignore the objectives of the SDA; namely the protection of those incapable. It is entirely possible that having the person in need of protection paying the costs would be antithetical to the objectives of the statute. It is neither reasonable not just that Mary McMaster, the elderly mother, pay for these costs expended to remove her son as her fiscal guardian, in a way it would be diminishing the significance of what he did. This was not just a manifestation of a family feud. The applicant or some court appointed guardian would have had to act to protect Mary McMaster’s economic base.
[8] The respondent’s behaviour both before and during the litigation is as Justice Epstein described in paragraph 28 of Davies v. Clarington (Municipality) 2009 Carswell 6185 “behaviour worthy of sanction, behaviour which is reprehensible, and an abuse of process”.
[9] In a way the respondent by his conduct created the fiscal emergency and it is entirely appropriate and just that he pay costs on a substantial indemnity basis.
[10] Turning now the actual bill of costs, as mentioned there does not appear to be any issue with respect to the disbursements.
[11] As for the cost of the services rendered, it is noted that the lead counsel is a well known respected leader in the field of estate litigation.
[12] The hourly rate is understandable. Counsel was assisted by other counsel within her firm and support staff. With a “team approach” there is a concern that there is some duplication of effort. Namely that a junior lawyer directs and supervises the work of support staff. That junior lawyer’s effort in turn is reviewed by a more senior lawyer and so forth. There are firms where one counsel works with support staff, that ratio would obviously diminish the risk of duplication. So while the description of the work done at the various stages of the litigation is reasonably detailed one cannot tell which member of the team did what. Having said that it is the lead counsel who is responsible for the work effort at the end of the day. This difficulty in determining who of the team did what, does merit a reduction as it is possible that one counsel as referred to above could have performed the work of the “team”.
[13] For these reasons the total attributed to “initial file review and dealing with issues, preparation for the application on October 2nd 2012 (which was adjourned)” is reduced by $10,000 to $9,613. The preparation for the hearing of the application returnable on February 3rd 2013 is reduced by $1,000 to that of $15,064.
[14] Finally one regards that portion of the bill of costs attributable to “reviewing accounting material and preparation of bill of costs” set at $2,947. As the description suggests there was an accounting input as to the creation of the bill of costs. It’s difficult to comprehend how two counsel would spend almost 20 hours between them organizing this material. Therefore this aspect of the bill of costs is reduced to $1,000.
[15] The Court is confident that counsel can recalculate the total allowed in the bill of costs and the applicable HST.
[16] Judgment accordingly will be approved by this Court and will be payable by the respondent within 30 days of entry of the judgment.
Dated at Hamilton, this 24th day of April, 2014
The Honourable Mr. Justice A.C.R. Whitten
AW/vt