SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 723/13
DATE: 20140912
RE: THE ESTATE OF NORMAN WANNER PANABAKER, CHRISTINE MARCELL, PAUL PANABAKER and JANET PANABAKER, in their capacity as Executors of THE ESTATE OF NORMAN WANNER PANABAKER, and JAMES PAUL PANABAKER – and – JAMES WILLIAM ROBINSON and DEBORAH ANN ROBINSON
BEFORE: Fragomeni J.
COUNSEL:
Trenton D. Johnson, for the Applicants
Theodore C. Dueck, for the Respondents
COSTS ENDORSEMENT
[1] The Respondents acknowledge that the Applicants were successful in their Application. I have read and considered the costs submissions of the Respondents as it relates to the characterization of the events and attempts to resolve the issues prior to the commencement of this application. I cannot conclude that any of the conduct attributed to the Applicants by the Respondents would disentitle them to an award of costs. I cannot accept the position of the Respondents that each party bear their own costs.
[2] The issue to be determined at the motion before me was focused on whether the right of way allowed for vehicular ingress and egress. I determined that it did and that as a corollary to that determination that the Respondents remove any interferences with the right of way. The Applicants were successful on those issues and are entitled to costs.
[3] Rule 57.01 sets out the factors the Court must consider in determining costs as follows:
57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and
(i) any other matter relevant to the question of costs.
[4] The Respondents seek a substantial reduction in the Applicants costs for the following reasons:
• There were no serious attempts by the Applicants to discuss their differences prior to retaining counsel.
• There was no issue raised relating to vehicular ingress or egress in the first letter from the Applicants’ counsel to them.
• The threat of legal costs in the context of those letters was inflammatory.
• After further correspondence by Applicants’ counsel there was no willingness to discuss or negotiate or consider any nuanced approach to a practical resolution of the problem.
• Had the Applicants approached the issues differently, including exploring the possibility of mediation a solution could have been arrived at avoiding litigation costs.
• It is not, therefore, accurate, as suggested by the Applicants, that this expensive legal process was entirely the fault of the Respondents.
• At paragraph 14 of their costs submissions the Respondents submit the following:
Given the length of time of historical use of the right of way, the nature and length of time the obstructions had existed, and the very recent emergence of this issue about vehicular access, we submit that a more conciliatory and collaborative approach to the problem by the Applicants would undoubtedly have resulted in a different response from the Robinsons. We submit the Court can and should consider that when assessing the reasonableness of the Applicants’ requests for costs and exercising its discretion in that regard.
[5] In their reply the Applicants set out the following at paragraph 8:
Sixth, contrary to paragraph 23 of the Cost Submissions of the Respondents, it is the Applicants’ position that this would not be an appropriate case for the court to order each party to bear their own legal costs. First, the Applicants did not “rush to litigation”. It was clear to them, from dealings with the Respondents and as evidenced in correspondence from the Respondents’ lawyer, that the Respondents were not willing to allow vehicle access. Second, the Notice of Application and supporting affidavits (along with correspondence sent prior to litigation), clearly set out that the Applicants were seeking vehicle access over the right of way. There were no unnecessary issues introduced into the litigation. In this case the Applicants were entirely successful and ought to be awarded costs as a result of same.
[6] The Respondents take no issue with the amount of time required for cross-examinations nor with the hourly rates related to that scope of the work.
[7] I am satisfied that the appropriate scale of costs is on a partial indemnity basis.
[8] The Applicants seek costs in the sum of $24,306 including HST which represents 65% of their full fees of $37,395. The disbursements are, inclusive of HST $2,382.74. At paragraphs 27 and 28 the Respondents set out the following with respect to the disbursements:
As for the disbursements claimed, we respectfully point out that photocopies, courier charges, mileage and parking, long distance phone calls and faxes are not normally considered “assessable disbursements” for purposes of costs awards, and should be eliminated from consideration here. That leaves only $1,330.05 of disbursements for Cross-examinations and transcripts, Online searches, Process server and Court filing fees. As submitted in paragraph 24 above, to the estimated 1/3 extent that the $980.50 Cross-examination and transcript fees reflect time spent on the unnecessary affiants and issues presented by the Applicant, those disbursements should be further reduced by $326.83.
- The cost of obtaining a survey (while it was admittedly the Respondent’s property being surveyed) was directed specifically to the area of the 30 foot right of way and mapping all of the claimed or potential obstructions within that area. It therefore benefited the Applicants, and was necessary for both parties to have before the Court in any event. We submit that this particular disbursement cost of $1,799.53 should be shared by the parties equally, and therefore reduced by 50% in the Applicant’s claim.
[9] In summary the Respondents submit that that a reasonable award of costs would be $11,480.80 for fees and HST of $1,492.50 plus $1,902.98 for disbursements for a grand total of $14,876.28.
[10] Having considered all of the submissions filed by the parties I am prepared to fix costs in favour of the Applicants in the all inclusive sum of $20,000.00.
[11] Order to issue that the Respondents pay to the Applicants their costs fixed in the all-inclusive sum of $20,000.00.
Fragomeni J.
DATE: September 12, 2014
COURT FILE NO.: 723/13
DATE: 20140912
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: THE ESTATE OF NORMAN WANNER PANABAKER, CHRISTINE MARCELL, PAUL PANABAKER and JANET PANABAKER, in their capacity as Executors of THE ESTATE OF NORMAN WANNER PANABAKER, and JAMES PAUL PANABAKER – and – JAMES WILLIAM ROBINSON and DEBORAH ANN ROBINSON
BEFORE: Fragomeni J.
COUNSEL: Trenton D. Johnson, for the Applicants
Theodore C. Dueck, for the Respondents
COSTS ENDORSEMENT
Fragomeni J.
DATE: September 12, 2014