OSHAWA

COURT FILE NO.: CV-14-87563-ES

DATE: 20151119

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Laquita K. Evangeline Dagg, James Stephen Cameron, by his litigation guardian Laquita K. Evangeline Dagg

Applicants

– and –

Andrew Felker, in his Capacity as Litigation Administrator for the Estate of Stephen Douglas Cameron, Kimberley Anastasia Cameron, Derek Alexander Hollinger Cameron, by his litigation Guardian Kimberley Anastasia Cameron, and Meaghan Elizabeth Hollinger Cameron, by her Litigation Guardian Kimberly Anastasia Cameron

Respondents

David Freedman, for the Applicants

Michael H. Tweyman, for the Respondent Kimberley Anastasia Cameron

HEARD: by written submissions

RULING ON COSTS

DOUGLAS J.

[1] On October 2, 2015 I released my Reasons for Judgment in the above matter.

[2] In my judgment I found in favour of the Applicants by concluding that the proceeds of a Canada Life Insurance policy formed part of the Estate of Stephen Douglas Cameron for the provision of support to dependants of the Estate. I further found in favour of the Applicants in finding that the Applicant Laquita K. Evangeline Dagg (“Dagg”) is a “spouse” within the meaning of s. 57 of the Succession Law Reform Act.

[3] Given the paucity of evidence on point, I deferred the issue of whether Dagg is a “dependant” within the meaning of s. 57 of the Succession Law Reform Act. The parties had previously agreed that the issues of the nature and quantum of support be paid to the dependants of the Estate would be determined in subsequent proceedings.

[4] I invited written submissions on costs from the parties and I have received and reviewed those submissions.

[5] In addition to the issue of costs of the trial proceedings before me it should also be noted that there are two additional issues of costs as follows:

(a) The costs of the motion before Bale J., reserved to the application judge pursuant to his Reasons for Decision released April 20, 2015; and

(b) Costs of a preliminary motion heard by me before commencement of the trial and upon which I found in favour of the Respondents on the question of issue estoppel.

[6] The Applicants submit that they were successful upon the motion before Bale J. and the first phase of the trial proceedings before me and are therefore presumptively entitled to costs. Costs are sought on a full indemnity scale payable out of the notional estate. Those costs are calculated in the amount of $165,136.92 inclusive of disbursements and HST.

[7] The Respondents submit that the costs sought by the Applicants are excessive and there should be no costs or costs ought to be reserved or made payable in the cause.

[8] I conclude that costs ought to be reserved to the application judge ultimately determining the outstanding issues for the following reasons:

(a) Bale J., in his Reasons released April 20, 2015 reserved costs of the motion before him to the application judge. I have only dealt with some of the issues raised in this application. More, as identified above, remain to be determined.

(b) Section 75 of the Succession Law Reform Act provides as follows:

The Court may direct that the costs of the application be paid out of the Estate or otherwise as it thinks proper, and may fix the amount of the costs payable by any party, exclusive of necessary disbursements, at a lump sum having regard to the value of the Estate and the amount of any support applied for or directed by its order.

Thus, an important component of assessment of costs pursuant to s. 75 is the form and quantum of support ultimately ordered by the court. These issues have yet to be determined and are thus not an available component of a costs assessment at this time.

(c) As the issues of whether Dagg is a dependant, and the form and quantum of support have been deferred to trial, a full appreciation of the parties’ relative success or failure is not yet attainable.

(d) Evidence regarding the parties’ respective abilities to pay an award of costs is not presently before me, and may be influenced by determination of the remaining issues.

[9] For all these reasons the issue of costs of proceedings before Bale J. and of the preliminary motion and trial proceedings before me are reserved to the judge ultimately disposing of the remaining issues.

DOUGLAS J.

Released: November 19, 2015