CITATION: Lavereau v Papania, 2015 ONSC 1109
OTTAWA COURT FILE NO.: 13-658
DATE: March 20 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JAMES ANTHONY LAVEREAU
Harland I. Tanner, for the Plaintiff/Moving Party
Plaintiff/Moving Party
- and -
ANN LOUISE PAPANIA, JOYCE ROSEMARY LAVEREAU and RONALD WILLIAM LAVEREAU
No One Appearing on Behalf of the Defendants
Defendants/Respondents
HEARD: January 23, 2015
REASONS FOR JUDGMENT
James J.
[1] The plaintiff has made a motion for judgment in relation to the defendant Ann Louise Papania who has been noted in default of delivery of a statement of defense. The plaintiff seeks judgment in the amount of $70,074.48 as liquidated damages and is reserving his right to pursue a judgment in relation to unliquidated damages.
[2] By endorsement dated February 23, 2015 I provided an opportunity to counsel for the plaintiff to deliver additional submissions which were received on March 4, 2015.
[3] The plaintiff says that the following amounts make up his liquidated damages claim:
a) $57,457.38 for the plaintiff’s share of the estate that had been set aside and was later distributed to the defendants;
b) $8,867.10 representing 25% of the defendant’s legal costs paid by the estate;
c) $3,750.00 representing 25% of the trustee remuneration paid to the defendants.
The Facts
[4] The statement of claim makes the following allegations that are deemed to be admitted to be true:
a) The parties are the children of Joan Rose Lavereau who died on April 28, 2003.
b) The plaintiff learned of his mother’s death in 2012.
c) Joan Rose Lavereau left a will dated October 14, 1998 wherein the defendants Joyce Rosemary Lavereau and Ann Louise Papania were named as estate trustees. The will provided that the plaintiff was to receive a 25% share of the residue. The estimated value of the estate at the time the certificate of appointment of estate trustee was issued was $273,139.44.
d) There was an interim distribution on July 2, 2004 of $80,000 and 25% of this amount, being $20,000, was set aside for the plaintiff.
e) In February, 2005 the defendant Ronald William Lavereau applied for an order removing his sisters as estate trustees and requested that he be appointed as estate trustee in their place. An order to this effect was made on April 22, 2005.
f) An estate accounting was provided to the plaintiff and indicated the total value of the estate was $299,652.93. The total expenses, including the initial interim distribution, amounted to $158,937.55, leaving a balance remaining of $140,715.38. This sum was distributed to the beneficiaries including the sum of $35,178.85 that was set aside for the plaintiff, making $55,178.85 the total amount to be set aside for the plaintiff.
g) In or about June 2010 the defendants agreed to divide and share the funds that had been set aside for the plaintiff. With accrued interest the total amount now amounted to $57,457.38. From this the sum of $1,000 was paid to the estate solicitor and $18,069.12 was paid to the defendant Ann Louise Papania.
h) The plaintiff’s position is that he should be compensated for the legal costs that were paid out of the estate as a result of the dispute between the estate trustees that led to Ronald William Lavereau succeeding his sisters as estate trustee. The amount of these legal costs was $35,468.41 and the plaintiff claims to be entitled to 25% of this amount being $8,867.10.
i) In addition the plaintiff’s position is that the defendants mismanaged the estate and are not entitled to the compensation that was paid to the three estate trustees of $15,000 each. He claims 25% of $15,000, being $3,750.
[5] There are no material facts pleaded in the statement of claim that would entitle the plaintiff to the relief described in subparagraphs (h) and (i) above. The plaintiff simply states in the statement of claim that this is his position.
[6] Although not part of the motion, the plaintiff’s position is that the defendants failed to adequately value the personal property of the deceased and he claims a right to recover 25% of the amount found to have been inadequately valued. In addition, the plaintiff’s position is that the defendants sold certain real property below market value and claims 25% of the “uncaptured value of the property”. These latter two items constitute the plaintiff’s unliquidated claim.
Discussion and Analysis
[7] Rule 19.02(1) says that a defendant who has been noted in default is deemed to admit the truth of all allegations of fact made in the statement of claim and is not entitled to notice of any step in the action except where the court orders otherwise or as provided in rule 19.02(3).
[8] Rule 19.05 says that where a judgment has been noted in default, the plaintiff may move before a judge for judgment against the defendant on the statement of claim in respect of any claim for which default judgment has not been signed.
[9] Rule 19.05(2) says that a motion for judgment shall be supported by evidence given by affidavit if the claim is for unliquidated damages.
[10] Rule 19.06 says that a plaintiff is not entitled to judgment on a motion for judgment or at trial merely because the facts alleged in the statement of claim are deemed to be admitted, unless the facts entitle the plaintiff to judgment.
[11] Rule 19.07 says that a judgment obtained against a defendant who has been noted in default does not prevent the plaintiff from proceeding against the same defendant for other relief.
[12] It appears to me that the plaintiff is clearly entitled to judgment against Ann Louise Papania for the sum of $18,069.12, being the portion of the funds that were supposed to be held for his benefit but that were distributed to this defendant. I am satisfied that the facts as pleaded support the granting of a judgment for this part of the plaintiff’s claim. I am not satisfied that this defendant should be liable to repay, as liquidated damages, amounts that were distributed to the other defendants.
[13] While the plaintiff’s statement of claim discloses that it is the plaintiff’s position that there has been mismanagement in the estate disentitling the trustees to compensation and that the legal costs of their dispute ought not to have been deducted from estate funds, a mere statement of his position does not prove his entitlement. There is no evidence before me by way of deemed admission of facts pleaded in the statement of claim to support the allegation of mismanagement in the estate or that it was inappropriate for costs to be awarded payable from estate funds. To be clear, I am not taking issue with the plaintiff’s legal entitlement to advance the various claims that he has made and perhaps he will ultimately be successful on them but the evidence to prove the claims on this motion is inadequate. An affidavit is permitted in appropriate circumstances to assist to quantify a claim for damages. Here there is an affidavit from a person in the law firm of the plaintiff’s counsel. This cannot be used to buttress the factual underpinning of the claim. The facts to support the claims must arise out of the allegations in the statement of claim that are deemed to be admitted. Not having been proved on this motion, the claims that have not been allowed will have to be proved at a trial along with the plaintiff’s allegations that the personal property was not properly valued and that the real property was sold for an amount below market value.
[14] Accordingly, judgment shall issue in favour of the plaintiff against the defendant, Ann Louise Papania, for the sum of $18,069.12.
[15] The plaintiff seeks costs of $10,837.83 for fees and disbursements of $3,956.23. The largest disbursements relate to issuing and serving a motion record in July 2013 ($1,008.06), serving a notice of motion in September 2013 ($751.71) and serving a motion for directions in July 2014 ($608.29). A review of these invoices indicates that the costs of service reflected in these invoices include the costs of serving the other defendants. In large part, the invoices are sufficiently itemized to identify the charges in relation to the defendant Ann Louise Papania. In my view it is appropriate that only a portion of these expenses be charged to and recoverable from Ann Louise Papania as respondent on this motion.
[16] With respect to the fees claimed, it appears that the plaintiff’s bill of costs is prepared on a substantial indemnity basis, rather than the more common partial indemnity scale. Costs on this scale are rarely granted and are reserved for exceptional circumstances that are not present here. Usually partial indemnity costs are allowed at 60% of the substantial indemnity rate. Accordingly, fees are allowed at $5,755 and disbursements at $1,500 for a total of $7,255 plus HST.
[17] The plaintiff is at liberty to pursue the additional claims against this defendant as he may be advised.
Mr. Justice Martin James
DATE RELEASED: March 20, 2015
CITATION: Lavereau v Papania, 2015 ONSC 1109
OTTAWA COURT FILE NO.: 13-658
DATE: March 20, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JAMES ANTHONY LAVEREAU
Plaintiff/Moving Party
-and –
ANN LOUISE PAPANIA, JOYCE ROSEMARY LAVEREAU and RONALD WILLIAM LAVEREAU
Defendants/Respondents
REASONS FOR JUDGMENT
Mr. Justice Martin James
DATE RELEASED: March 20, 2015