ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CYNTHIA MARY DAVIDSON
Golan Yaron, for the Applicant
Applicant
- and -
NEIL MATHEW JAMES LAWRENCE
Dorothy Hagel, for the Respondent
Respondent
HEARD: October 23, 2015
COSTS ENDORSEMENT
Justice D.L. Edwards
[1] On October 23, 2015 I heard a summary judgment motion during which the applicant sought an order declaring the last will and testament of Aleen Lawrence dated October 3, 2013 was valid. For oral reasons given I dismissed the motion and directed that the parties provide cost submissions limited to three pages.
[2] I have received and reviewed the cost submissions from the parties and this is my cost order.
[3] The respondent seeks a cost order against the applicant personally on a substantial indemnity basis in the amount of $36,861.72. In the alternative, the respondent seeks costs on a partial indemnity basis against the applicant personally with the remaining costs to be paid to the respondent out of the estate.
[4] The applicant acknowledges that the respondent is entitled to a cost award, but submits that the more appropriate amount on a partial indemnity basis would be $4,000, and on a substantial indemnity basis would be $5,120. In addition, the applicant submits that costs should be paid from the estate assets.
[5] Rule 57.01 of the Rules of Civil Procedure describe the factors that I may consider in addition to the result of the proceeding and any offers to settle when I exercise my discretion on the issue of costs.
[6] In addition to those factors, in estate litigation the question arises as to whether some or all of the costs should be paid from the estate assets.
[7] The respondent submits that the motion for summary judgment was irresponsible and unreasonable and a waste of resources. Because of this the respondent submits that the applicant is not entitled to costs out of the estate, and indeed, any cost award in favour of the respondent should be against the applicant personally. In support of this position the respondent directs my attention to McDougald Estate v. Gooderham, 2005 21091 (ON CA).
[8] The respondent further submits that as the motion was wasteful and unnecessary he should receive costs on a substantial indemnity basis: 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238; Gamble v. McCormick, (2002), 4 E.T.R. (3d) 209 (S.C.J.).
[9] The applicant asserts that the timing of the summary judgment motion was reasonable due to the inactivity of the respondent since the consent order of November 2014 that the respondent issued on February 2015. This order allowed the respondent to make any and all inquiries regarding the deceased.
[10] The applicant submits that proceeding to the summary judgment motion was a prudent cost-effective attempt to resolve the litigation and that her conduct was reasonable, both in her affidavit material, and in bringing the motion.
[11] The applicant asserts that the cost award sought by the respondent is unreasonable and excessive. Counsel for the respondent have filed a Bill of Costs showing that approximately 100 hours of legal work were incurred for the summary judgment motion that was heard on a regular or short motion day. This contrasts to 15 hours of legal work by the respondent's counsel.
[12] A factor for me to consider in awarding costs is the amount of costs that an unsuccessful party could reasonably be expected to pay. Counsel for the applicant submits that based upon his 15 hours of legal work, on a full indemnity basis his costs would be $6,108 inclusive of disbursements; on a partial indemnity basis $3,000; and on a substantial indemnity basis $4,000.
[13] Counsel for the applicant submits that a cost award in that range would be a more appropriate amount, as it would be consistent with what the unsuccessful party could reasonably expect to pay.
[14] Bearing in mind the factors described in Rule 57.01, I am satisfied that the respondent is entitled to a cost award. The questions are what the quantum should be and who should pay that cost award, the applicant personally, the estate or a combination thereof.
[15] I am satisfied that:
(a) the respondent was entirely successful;
(b) the issue was of extreme importance to both parties. Had the motion been granted it would have effectively ended the litigation;
(c) the matter was not legally complex, but somewhat factually complex;
(d) neither party lengthened or shortened the summary judgment motion; and
(e) neither party refused to admit any facts.
[16] The respondent asserts that the motion was improper or unnecessary. I disagree. The summary judgment motion is a step available to parties in litigation. If the unsuccessful party in a summary judgment motion faced an increased cost award due to that lack of success, this would be a significant deterrent to the use of a procedure that is encouraged by the courts.
[17] I did not accept a number of the grounds raised by the respondent as reasons for dismissing the motion. However, I did conclude that there was a genuine issue requiring a trial and therefore did dismiss the motion.
[18] I do not find any conduct of the applicant that would justify costs on a basis other than a partial indemnity basis.
[19] What then would be inappropriate amount of costs?
[20] The Notice of Motion sought various relief. However the only issue argued before me was the summary judgment motion. The other issues remain outstanding. As well, the respondent sought relief in his materials including a revocation of the Certificate of Estate Trustee with Will. Those issues were not argued.
[21] Given the oral argument and the fact that this was a short motion day, I did not deal with any of the other issues in my endorsement. Indeed the confirmation form noted that the summary judgment motion was the only matter to be argued.
[22] My cost order, therefore, should be focused upon the appropriate costs incurred with respect to the matter that was argued before me.
[23] I am satisfied that the costs sought by the respondent include time expended with respect to other issues, such as the extent of the assets of the estate. As this was not argued before me I am not prepared to include these costs in my cost order.
[24] Considering all of these factors I am satisfied that on a partial indemnity basis the sum of $5,000, inclusive of HST, is in an appropriate amount for a cost order.
[25] The next question is against whom this order should be made.
[26] I find that in bringing this motion that the applicant cannot be said to have undertaken an unnecessary or ill-advised proceeding that was necessitated by her own conduct. Based upon the materials before me the circumstances do not rise to the level in McDougald Estate.
[27] I am not prepared therefore to order that the applicant pay the costs personally.
[28] I order that the sum of $5,000, inclusive of HST, be paid from the estate assets to the respondent.
[29] I would add that I asked for costs submissions not to exceed three pages. Neither party adhered to that requirement.
Justice D.L. Edwards
Released: November 27, 2015
COURT FILE NO.: CV-14-04454-ES
DATE: 2015 11 27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CYNTHIA MARY DAVIDSON
Applicant
- and –
DOROTHY LAWRENCE
Respondent
COSTS ENDORSEMENT
Justice D.L. Edwards
Released: November 27, 2015