ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF: The Estate of John Paul Gauthier, Deceased.
B E T W E E N:
Derek David Sitko,
Plaintiff
Robert Stead, for the Plaintiff
- and –
Albert James Gauthier, in his capacity as Attorney for Property of the Late John Paul Gauthier, deceased, and in his Capacity as Estate Trustee,
Morris J. Holervich, for the Estate Trustee
Defendant
A N D B E T W E E N:
Derek David Sitko,
Applicant
Robert Stead, for the Applicant
- and -
Albert James Gauthier,
Respondent
Morris J. Holervich, for the Respondent
HEARD: January 27, 28, 29, 30 and July 14, 2014, at Thunder Bay, Ontario
Mr. Justice F. B. Fitzpatrick
Decision On Costs
Background and Submissions
1In my decision dated September 29, 2014 I indicated the objectors were successful on this application. The style of cause notes the objector Derek David Sitko as both the “plaintiff” and the “applicant”. While normally costs follow success in a matter, there were circumstances noted in my judgment at paragraph 69 by which I alerted the parties that certain factors would be influencing my discretion to award costs in this case. Those comments appear to have been forgotten by the parties in their costs submissions.
2According to the submissions of the parties there were no offers to settle exchanged between the parties. There were a number of court appearances, and six pretrial orders prior to the 5 day trial of this action for a passing of accounts. No discoveries were conducted prior to the trial. Only two witnesses were called at trial.
3Albert Gauthier has submitted that in fact the only witness to the matter called by the applicant/plaintiff should pay him costs, despite being a non-party to this matter. This submission ignores the clear statement in my trial decision that the plaintiff/applicant David Sitko was successful. I reject in total the submission of Albert that Paula Sitko, the one witness called by the plaintiff/applicant be personally liable for costs in this matter. I also do not agree with Albert’s submission that he was in some way successful in this matter. I have already decided this issue. He had to pay money back. His accounts were passed but only after his claim for compensation was reduced. In my view, Albert’s submissions regarding costs were unhelpful.
4David Sitko submits that Albert should pay him $87,738.59 for costs of a matter that took 5 days to try, where there were no discoveries and in which he did not testify. Clearly David is seeking costs on a full indemnity basis. This too, in my view, was a largely unhelpful submission. $14,685 of the costs sought by David are for clerk time. The clerk did not appear in Court. During the trial when there were difficulties encountered by counsel for David, often his response to inquiry from the Court as to why he did not appear familiar with the material was “my clerk did that” or “my clerk prepared these”. This was not a satisfactory response. Nor does it somehow entitle his client to collect these costs from the other side. No amount will be allowed for clerk time.
Analysis
5Much of the jurisprudence concerning costs has stressed the discretionary aspect the Court has in making these awards. Also the Rules provide guidance for the exercise of this discretion. In particular Rule 57 contains several benchmarks by which to consider submissions regarding costs. In my view, the concept of proportionality underlies a number of the express factors set out in Rule 57.01 (1).
6In this case, 5 days of trial yielded a decision whereby Albert, the attorney for property for his father, was required to pay back to the estate of his father the sum of $10,000. He was awarded compensation for his efforts of $14,308.07.
7The amount ordered repaid and the amount of compensation awarded are within the limits of the Small Claims Court. If added together the amount is still within the jurisdiction of the Small Claims Court. If the amount initially claimed for compensation by Albert arose in some other civil context, he would have been required to proceed to collect this amount in an action conducted in the Small Claims Court. Rule 57.05 permits this Court to deny a plaintiff costs if monies in the amount at issue in this matter were recovered in an action that had been commenced and continued to trial in Superior Court. As this was an estate matter, the parties had no choice but to proceed in Superior Court. However, this Rule in my view further reinforces the concept of proportionality in the exercise of any discretion regarding costs.
8This concept of proportionality has been completely ignored by David in submitting a bill of costs of over $87,000.00. As noted above, it appears David’s claim for costs is made on a full indemnity basis. There is nothing in his submissions that would lead me to even remotely consider making such an award. The conduct of Albert was not improper, vexatious or unnecessary. I agree that Albert was difficult, evasive and inefficient. However, his conduct was not of a quality that would entitle David, who initially sought the passing of accounts, to collect his costs on anything approaching a full indemnity basis.
9There is nothing in submissions of David that address how it was that a matter that involved less than $25,000.00 to begin with, ended up taking 5 days to try, other than accusations that Albert was evasive and unresponsive to requests to produce information. There are pretrial procedures provided for in the Rules which could have addressed such difficulties such as making a request to admit, or conducting discoveries in advance of trial. These tools were not engaged. The parties did not even exchange affidavits of documents in this matter. In my view, this manner in which this case proceeded cannot form the basis for a request for costs of $87,000.00 when the ultimate award in favour of the plaintiff/applicant was a repayment of $10,000.00.
10This trial was not conducted efficiently. For example, the Court lost most of first day of trial because Albert did not show up for Court. Often times the examination of the witnesses proceeded very slowly as painstaking care was taken to go through items of payments that ultimately were never referred to in argument or had any bearing on the ultimate result. However, I am not prepared to place the burden of this inefficiency completely on Albert as urged on me by David. Also I do not fault counsel for this. In my view, this matter arose and proceeded in the fashion it did, because of deep animosities between brother and sister, (Paula Sitko the mother of David) who I agree was the driving force behind this litigation as evidenced by her testimony in this matter. These people chose to conduct a very personal battle involving their deceased father in the public forum of these court proceedings.
11The actions of both witnesses in this matter, and the merits of their respective positions have been set out at length in my trial judgment. There is no need to repeat the comments here. However this entire matter had an air of throwing everything up against a wall and seeing what would stick. This comment applies equally to both sides. But it is not meant to condone how this passing of accounts was conducted.
12In my view a passing of accounts is a process whereby an interested third party can ensure that private economic or personal oversight by a fiduciary over a beneficiary is conducted in a reasonable manner with an emphasis on how money is being spent on the beneficiary’s behalf. It is not meant as a vehicle to air long standing personal vendettas or to attack the conduct of another which had no impact on the beneficiary at issue.
13Clearly Albert was required to pass his accounts. He collected an excess amount of compensation and was apparently unprepared to pay it back without a Court order. Ultimately the amount he was required to repay was significant only in relation to the amount he claimed. It represented about 40 percent of the compensation he had taken. Correspondingly, it is my judgment that the costs he should be required to pay for this proceeding should be proportionate to those amounts.
Disposition
14I fix costs of this trial in the amount of $5,000,00 plus HST. In addition, Albert shall pay disbursements in the amount of $1,053.51 plus HST. The costs plus disbursements shall be payable on or before January 1, 2015 by Albert to David.
_______”original signed by”
The Hon. Mr. Justice F.B. Fitzpatrick
Released: December 3, 2014
COURT FILE NO.: CV-11-0256 & CV-12-0082
DATE: 2014-12-03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Derek David Sitko,
Plaintiff
- and –
Albert James Gauthier, in his capacity as Attorney for Property of the Late John Paul Gauthier, deceased, and in his Capacity as Estate Trustee,
Defendant
A N D B E T W E E N:
Derek David Sitko,
Applicant
- and -
Albert James Gauthier,
Respondent
DECISION ON COSTS
Fitzpatrick J.
Released: December 3, 2014
/mls