BARRIE

COURT FILE NO.: CV-14-389

DATE: 20140911

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

THERESA ROCHE ERSKINE

Applicant/Moving Party

– and –

THERESA ROCHE MCNAUGHT and JOHN P. CHUBB and PUBLIC GUARDIAN AND TRUSTEE

Respondents/Responding Parties

Ellen Brohm, for the Applicant/Moving Party

Corey Wall, for the Respondent/Responding Party John P. Chubb

HEARD: by written submissions

REASONS ON COSTS

DiTOMASO J.

BACKGROUND

[1] The parties agreed that costs in respect of this matter would be determined by way of written submissions. I have received and reviewed written submissions from each of the parties.

[2] By my order dated July 25, 2014, the Moving Party/Applicant Theresa Roche Erskine (“Ms. Erskine”) obtained injunctive relief on a motion without notice. Following receipt of the motion on July 27, 2014 to have my Order set aside the materials filed by the Moving Party on the Motion to Set Aside, John P. Chubb, son of Theresa Roche McNaught, provided the evidentiary basis necessary for the order to be set aside.

[3] The matter was adjourned at my direction and brought back on July 28, 2014 as I requested confirmation from the treating physicians that Ms. McNaught was medically able to be transported by airplane. The additional medical evidence did confirm that Ms. McNaught was medically able to be transported by airplane home to the United Kingdom (“UK”).

[4] The matter was argued before me on July 29, 2014. After the matter had been argued, the court adjourned to prepare reasons. However, before reasons were prepared, the Applicant Ms. Erskine consented to the order sought as evidenced by my order of July 29, 2014.

[5] The parties disagree as to whether or not the ex-parte motion should have been brought in the first place.

POSITION OF THE PARTIES

Position of Mr. Chubb

[6] On behalf of the Moving Party to set aside, Mr. Chubb, it is submitted that his motion to set aside was necessary as a result of Ms. Erskine’s failure to meet her obligations regarding the injunctive relief granted on July 25, 2014.

[7] It is submitted that the Applicant failed to comply with the following obligations regarding the July 25, 2014 ex-parte motion for injunctive relief:

(a) rule 40.02(1) – an interlocutory injunction or mandatory order may be granted on motion without notice for a period not exceeding ten days. [emphasis added]

(b) rule 40.03 – on a motion for an interlocutory inunction or mandatory order, the moving party shall, unless the court orders otherwise, undertake to abide by any order concerning damages that the court may make if it ultimately appears that the granting of the order has caused damage to the responding party for which the moving party ought to compensate the responding party. [emphasis added]

(c) rule 39.01(6) – where motion or application is made without notice, the moving party or applicant shall make full and fair disclosure of all material facts, and failure to do so is in itself sufficient ground for setting aside any order obtained on the motion or application. [emphasis added]

[8] As a result of the July 25, 2014 order barring the repatriation of Mr. Chubb’s mother, it is alleged that there was delay in receiving specialist care, additional uncovered health care costs were incurred (unspecified) and Mr. Chubb suffered emotional distress. It is unknown and I cannot comment on whether there was any delay in receiving specialist care and even if there was delay, such delay contributed to the death of Ms. McNaught on the evening of July 30, 2014. There are no particulars as to whether or not she died while under medical care here in Ontario or while enroute to the UK or she passed away upon returning home.

[9] Nevertheless, what is clear to me is that when Mr. Chubb had the opportunity to serve and file his affidavit material, there was disclosure of a sort that painted an entirely different picture in respect of the mother/son relationship that Mr. Chubb had with his mother. Further, Mr. Chubb’s affidavit addressed the arrangements that Mr. Chubb had already made to return his mother to medical care in the UK and his further intentions to take an active role in her care. Also, in his affidavit, he deposed that there had been no discussion in respect of his mother wanting to move to Ontario. Quite to the contrary, there was discussion about redecorating her residence upon her return from her Ontario visit. To be fair, if the subject of Ms. McNaught wishing to move to Ontario was raised, this would have been a topic for discussion. However, the topic was not raised.

[10] Further, I do not know how difficult it was for Ms. Erskine to locate and serve Mr. Chubb with her documents giving him an opportunity to respond without bringing the ex-parte motion. Certainly, upon his receiving word of what had happened, he immediately retained counsel and on an expedited basis was before the court on detailed affidavit material ready to have counsel argue the motion to set aside.

[11] It is submitted on behalf of Mr. Chubb that there ought to be a reward of full indemnity costs in the amount of $15,581.80 in all of these circumstances.

[12] In addition to the above, Mr. Chubb relies on s.131 of the Courts of Justice Act, factors enumerated under rule 57.01 of the Rules of Civil Procedure and the principles set out in Boucher v. Public Accountants Council for the Province of Ontario 2004 ONCA 14579 and Moore v. Bartucci, 2012 ONSC 4964. In the alternative, Mr. Chubb claims partial indemnity costs in the amount of $9,603.99 or substantial indemnity costs in the amount of $13,340.25. In any event, Mr. Chubb submits that he was the moving party to set aside, that he was successful on his motion and that there is no reason to depart from the usual order that costs follow the event.

Position of Ms. Erskine

[13] I have received and reviewed cost submissions on behalf of the moving party of first instance Theresa Roche Erskine.

[14] It is submitted that the fact that the motion was brought ex-parte has little relevance on the issue of costs. The motion was necessary for directions in respect of a number of issues, not the least of which was an expression of her wish by Ms. McNaught to move to Canada to Ms. Erskine and her husband, prior to the stroke. It was not until Mr. Chubb’s affidavit sworn July 28, 2014 was received that Mr. Chubb had shared with his family his intended plan of care.

[15] It is submitted that Ms. Erskine’s concerns combined with the impending immediate transfer required the motion for directions to be brought.

[16] While the court recognized that the parties were all acting in the best interests of Ms. McNaught, the fact is that Mr. Chubb had made concrete and expensive arrangements to have his mother transferred back to the UK. This was not a case where Ms. McNaught had suffered a stroke here in Ontario and had no-one to care for her except her Ontario relatives. Quite to the contrary, her son was actively involved in enabling her return to England where she would receive specialist care which he had arranged.

[17] Ms. Erskine submits that she acted in good faith, and she incurred legal fees as well as hospital expenses unlikely to be reimbursed because of Mr. Chubb’s failure to purchase the correct travel insurance policy. I make no finding in this regard.

[18] On behalf of Ms. Erskine, the Bill of Costs is challenged on the basis that two lawyers spent two hours preparing essentially one affidavit. Excessive time was spent and this was not an expected contribution to the quantum of costs. In addition, 11.6 hours of research was conducted. No factum was produced and the authorities provided were, for the most part, legislation that was already included in Ms. Erskine’s factum used in support of the ex-parte motion.

[19] Finally, Ms. Erskine submits that an appropriate figure for costs would be on a partial indemnity scale in the amount of $3,500.

ANALYSIS

[20] I find that Mr. Chubb as the successful party is entitled to costs of the motion to set aside and that there is no reason to depart from the usual order that costs follow the event.

[21] The issue to be determined is whether Mr. Chubb is entitled to full indemnity, substantial indemnity or partial indemnity costs and if so, what is the quantum of those costs.

[22] I do not agree that Mr. Chubb is entitled to full indemnity costs. I am not of the view that the conduct of Ms. Erskine is such that it would attract costs on a full indemnity scale in the amount of $15,581.80.

[23] That having been said, I am of the view that Mr. Chubb is entitled to substantial indemnity costs having been put to the serious expense of setting aside an ex-parte order in circumstances where he was entitled, as Ms. McNaught’s son, to take the steps that he did to have her repatriated to the UK for specialist care after she suffered a stroke here in Ontario. Unfortunately, Ms. McNaught passed away on the evening of July 30, 2014. It is only speculation as to whether her departure as originally planned would have made any difference in respect of her eventual passing on the evening July 30. It is not necessary for me to engage in that speculation.

[24] In coming to the conclusion that Mr. Chubb is entitled to substantial indemnity costs, I have considered the rule 57.01 factors as set out in Mr. Chubb’s submissions as follows:

• The amount claimed and the amount recovered in the proceeding.

[25] The subject of the motion and the related proceeding was for injunctive or declarative relief.

• The complexity of the proceeding.

[26] This matter including the following factors adding to its complexity: conflict of laws issues relating to Ms. McNaught’s citizenship, residency, and the power of attorney granted to her son; Ms. Erskine’s alleged failure to comply with the Rules of Civil Procedure regarding the relief sought.

• The importance of the issues

[27] The issue was the guardianship, health, well-being, and medical treatment of Ms. McNaught. Specialist medical treatment arranged by Mr. Chubb was delayed. Ultimately Ms. McNaught passed away. There was not full disclosure on the part of Ms. Erskine.

• The conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding

[28] Had Ms. Erskine met her obligation as set out in these submissions, or had the motion been brought on notice, it is submitted that the initial order, very likely, would not have been granted.

• Whether any step in the proceeding was improper, vexatious or unnecessary or taken through negligence, mistake or excessive caution

[29] Mr. Chubb was critical of the video evidence tendered by Ms. Erskine on the motion of July 25, 2014. He submits the video evidence together with the affidavit mischaracterized Ms. McNaught’s intentions to move to Ontario.

• A party’s denial of or refusal to admit anything that should have been admitted

[30] It was only as the court was about to adjourn to prepare reasons that Ms. Erskine consented to the order sought even though, as Mr. Chubb submits, there was sufficient evidence to meet the test to set aside the order after the July 27, 2014 submissions.

[31] I have taken all of the 57.01 factors into account. Altogether they are supportive of the position taken by Mr. Chubb that this is a case that attracts substantial indemnity costs.

[32] I do not find that the Moore v. Bartucci case cited on behalf of Mr. Chubb is particularly helpful in our case. While in the Moore case, it was held that full indemnity costs were fair, reasonable and proportional, I do not come to the same conclusion in our case.

[33] Rather, I am guided by the principles put forth in the Boucher case. I am further guided by the principles of fairness, reasonableness and proportionality discussed by the Ontario Court of Appeal in Davies v. Clarington (Municipality) 2009 ONCA 722 paras. 51 – 56.

[34] The fixing of costs is not a mathematical exercise of hourly rate times hours spent. I have no doubt that the two lawyers having carriage of this matter for Mr. Chubb spent the time that they spent researching this matter and producing the affidavit material addressing all of the issues on an expedited basis. Mr. Chubb was before the court in very short order and fortuitously was before the same judge that issued the ex-parte order on July 25, 2014.

[35] I do not agree that the appropriate figure for costs in this matter would be $3,500, on a partial indemnity scale. The scale is not proper and the costs are too low. Neither am I satisfied that on a substantial indemnity scale the sum of $13,340.25 is appropriate.

[36] I find this figure somewhat high and would exercise my discretion in reducing the amount claimed as a result of two experienced counsel being involved in the preparation of a single affidavit with 11.6 hours of research being conducted. No factum was produced and the authorities were for the most part already assembled in Ms. Erskine’s factum used in support of the ex-parte motion.

[37] I would reduce the substantial indemnity costs claimed in the amount of $13,340.25 to the sum of $10,000 all inclusive of fees, disbursements and HST.

CONCLUSION

[38] It is ordered that Theresa Roche Erskine pay John P. Chubb the sum of $10,000 for costs all inclusive within 60 days from the date of this decision.

DiTOMASO J.

Released: September 11, 2014