SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 09-45083
DATE: 2015/11/12
RE: Robert Steen and Robert Steen as executor of the estate of Gwendoline Cuttance Steen
Applicant
AND
Gibsons LLP and Gibson & MacLaren LLP
Respondent
BEFORE: C.T. Hackland J.
COUNSEL: Miriam Vale Peters for the Applicant
John Parr Telfer, for the Respondent
HEARD: Motion in writing
COSTS ENDORSEMENT
[1] This court conducted an assessment of the Solicitor and Client accounts rendered by the firm Gibson’s LLP (“Gibsons”) to their client Robert Steen. The court’s reasons are reported at 2015 ONSC 4933.
[2] This hearing was heard over a 6 day period, April 9-10, 27-29 and May 1, 2015.
[3] Mr. Steen seeks his costs of this assessment on a substantial indemnity basis or alternatively on a partial indemnity basis.
[4] In my view, Mr. Steen should receive costs only if it can be said that he was substantially successful, which is the general criteria for awarding costs and is reflected in Rule 57. While not specifically applicable to an assessment, Rule 57 nevertheless, provides a very useful framework for considering entitlement to costs.
[5] In this case, the court reduced the solicitor’s accounts by the sum of $73,000, which represented the approximate amounts billed and subsequently paid by the client for an unsuccessful motion to pay funds to the executor or into court, as part of the administration of the testator’s estate. In addition Gibsons agreed at the commencement of the hearing to waive payment of an outstanding account dated April 24, 2009 in the amount of $11,349 and, prior to the hearing, agreed to an additional reduction of $2893. In general terms, it can be said that the total reductions represent about one half of the amounts billed by Gibsons to their former client.
[6] In assessing the issue of substantial success, reference must be made to any Rule 49 offers.
[7] Gibsons made a Rule 49 offer on September 18, 2014 to refund to Mr. Steen the sum of $32,000 and to waive the 24 April, 2009 outstanding account of $11,349. This offer, valued at $43,349 was withdrawn eight days later and never replaced with a subsequent offer.
[8] On September 22, 2014, seven months before trial, Mr. Steen offered to accept the following: (I note this offer remained open for acceptance until the commencement of the hearing) and was a valid Rule 49 offer):
a) Gibsons would pay to Mr. Steen $80,000 plus HST, which represented a global reduction on all of Gibsons’ accounts;
b) Gibsons would forgive its final account dated April 24, 2009;
c) $38,000 plus HST for costs of the assessment; and
d) Interest would accrue at a rate of 12% on the sum of $80,000 from April 24, 2009 to the date of payment.
[9] Mr. Steen submits that his Rule 49 offer, while seeking more of a reduction in the accounts than he actually achieved at the hearing, was a “near miss” i.e. was reasonable and close to the amount awarded by the court. Gibsons on the other hand had no Rule 49 offer other than the $43,349 offer which remained outstanding for an eight day period in September 2014 and was thereafter revoked.
[10] Mr. Steen also relies in support of his claim for costs on the firm’s refusal to comply with Master Roger’s procedural order concerning document production from a case conference on January 15, 2014. This essentially resulted in a very unsatisfactory situation in which counsel for Gibsons entered into evidence a huge volume of documentation (which was a photocopy of the entire file in reverse chronological order) and which overlapped with the properly organized briefs filed by Mr. Steen’s counsel. This was frustrating and time wasting for all concerned and created an unnecessarily large paper record.
[11] Mr. Steen also complains that this assessment was ordered to be tried in the Superior Court, rather than by an Assessment Officer, due to allegations of lack of competence on the part of Gibsons. This transfer of this assessment to a judge was on the application of Gibsons. Notwithstanding this, at the hearing it was argued by Gibsons that the court should not hear the client’s complaints based on lack of competence or negligence. I agree the firm’s reversal of position is difficult to comprehend but, in my view only wasted a small amount of the court’s time.
[12] I am of the view that the client, Mr. Steen was substantially successful and achieved a major reduction (approaching 50%), in his bills from the law firm. However, I decline to award substantial indemnity costs, although this would be a close call.
[13] I have reviewed the time docketed and hourly rates of the client’s counsel, Ms. Vale Peters. I think they are reasonable and appropriate. Her claim for partial indemnity fees in the sum of $60,800 and HST on that sum of $7904 is allowed. I would note that this sum is inclusive of partial indemnity fees of former solicitors which I have approved.
[14] Mr. Steen claims disbursements in the sum of $54,282. This claim improperly includes the sum of $32,000 which is the amount of costs ordered to be paid by Mr. Steen personally in the costs award following the unsuccessful motion before Kershman J. This cannot be viewed as a disbursement on this assessment.
[15] Also, in terms of disbursements, Mr. Steen is claiming the sum of $21,861.47 representing fees paid for an expert report and expert witness whose evidence I did not admit at the hearing. I held that due to the witness’s prior relationship with Mr. Steen, he could not be accepted as neutral and unbiased. On the other hand, counsel for Mr. Steen might reasonably have believed that this evidence would have been admitted with bias concerns going only to the weight to be attached to the evidence. The witness was present at the hearing and testified in a voir dire. I will exercise my discretion to allow one half of the claimed witness’s fees i.e. $10,930
[16] The total disbursements allowed are in the sum of $11,908 plus HST.
[17] In summary, the applicant Mr. Steen is awarded costs of this proceeding, being fees in the sum of $60,800 plus HST in the sum of $7904 and disbursements in the sum of $11,908 plus any applicable HST, payable by Gibsons forthwith.
Mr. Justice Charles T. Hackland
Released: November 12, 2015
COURT FILE NO.: 09-45083
DATE: 2015/11/12
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Robert Steen and Robert Steen as executor of the estate of Gwendoline Cuttance Steen
Applicant
AND
Gibsons LLP and Gibson & MacLaren LLP
Respondent
BEFORE: C.T. Hackland J.
COUNSEL: Miriam Vale Peters for the Applicant
John Parr Telfer, for the Respondent
COSTS ENDORSEMENT
HACKLAND J.
Released: November 12, 2015