McGregor v. McGregor Pitawanakwat, 2015 ONSC 3263

COURT FILE NO.: C-14-0007-SR

DATE: 2015-05-22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Robert Joseph McGregor, Applicant

AND:

Mary Angela McGregor Pitawanakwat, Respondent

BEFORE: The Honourable Mr. Justice R. Dan Cornell

COUNSEL: Eric Hovius, for the Applicant

Respondent, Unrepresented

HEARD: Written Submissions

ENDORSEMENT

[1] On March 11, 2015, I granted the relief that was being sought by the applicant with the result that the respondent was required to vacate the property in question. Having now received the cost submissions from both parties, I take this opportunity to fix the costs of the proceedings.

[2] The applicant seeks substantial indemnity costs for a variety of reasons. These include delays caused by adjournments to retain counsel, changes in counsel, asserting unsupportable positions and using procedural tactics to delay the application. This was to her benefit as she lived rent free until such time as she was to vacate the property. The respondent is an intelligent and educated person. She indicated that she had attended Osgoode Hall Law School and that she had taught as a university professor. It was clear during the course of the proceedings that the respondent is quite familiar with the legal system as evidenced by the articulate manner in which she presented her case.

[3] Although there was no formal Rule 49 offer to settle, Rule 49.13 permits the court to take into account any offer to settle made in writing in determining the appropriate award for costs.

[4] On two occasions, the applicant had offered to settle the proceeding in virtually the same manner as my decision, except that no costs were payable. This was arrived at after negotiations with the respondent’s lawyer at that time. The respondent then chose to become unrepresented, repudiated the agreement resulting in more delay and unnecessary expense. Given the approach and conduct of the respondent throughout the course of these proceedings, I can only conclude that these negotiations were not conducted in good faith, but rather for the purpose of delaying the proceedings with resultant increased costs to the applicant.

[5] The respondent was advised by Del Frate J. about the requirements the respondent needed to follow to raise a constitutional question. Despite having an adjournment to permit this to be done, the respondent appeared in court on March 11, 2015, to request yet a further adjournment to serve a notice of constitutional question and to retain legal counsel. When this request was denied, the respondent began to address the court in Anishinaabemowin, despite the fact that she is highly educated and speaks impeccable English.

[6] It is very clear from the record that the respondent was going to delay the proceedings in any manner that she could. As a result of this, it is clear that the respondent caused the applicant to incur much higher legal costs than would otherwise have been incurred but for her conduct.

[7] Apart from this, it was quite clear that the respondent’s position was without merit. This position depended upon an alleged will that had been prepared by the parties’ father. Putting aside the various questions that were raised about the validity of this testamentary document, the fact remains that at no point in time did the respondent ever attempt to have such will probated or otherwise validated. Even if this were to have been done, the so-called will indicated that the respondent would inherit an acre on Lot 14 whereas the respondent knew quite well that she occupied a portion of the applicant’s property which comprised Lot 15. Beyond this, all of the property had previously been transferred with the result that even if the so-called will was held to be a valid testamentary instrument, it was of no consequence as the testator had previously divested himself of any interest in the property.

[8] It is clear that the respondent acted in a most unreasonable manner by delaying the process as long as possible and presenting a defence that had no prospect of success. I find that the actions of the respondent rise to a level of reprehensible conduct and accordingly I award substantial indemnity costs.

[9] The solicitor and client costs amount to $23,815 and disbursements of $4,383.82 for a total of $28,198.82. In view of the aboriginal status of the parties, no HST is payable.

[10] The disbursements largely involve four trips made by the applicant’s lawyer from southern Ontario to Gore Bay, Ontario. These costs were minimized and reasonable in view of the fact that counsel for the applicant chose to drive rather than incur the costs of air fare and car rental. These multiple trips were directly as a result of the respondent’s various efforts to delay the proceeding and to seek adjournments. In view of this, I award the full amount of the disbursements in an amount of $4,383.82.

[11] To this, I add substantial indemnity fees in an amount of $20,000 for a total of fees and disbursements in an amount of $24,383.82.

The Honourable Mr. Justice R. Dan Cornell

Date: May 22, 2015