OTTAWA COURT FILE NO.: 15-64365
DATE: 2015/11/27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: William Richard Plummer, Applicant
AND
Edith Gweneth Plummer, Barbara Thompson-Walker,
in her capacity as Power of Attorney for Property for
Edith Plummer, Marilyn Kennedy, in her capacity as
Power of Attorney for Personal Care for Edith Plummer, and
The Ontario Public Guardian and Trustee, Respondents
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Miriam Vale Peters for the Applicant
Yasmin M. Vinograd for the Respondent,
Edith Gweneth Plummer
Kathleen P. McDormand for the Respondent,
Barbara Thompson-Walker
HEARD: In Writing
Ruling as to Costs
[1] This ruling is further to my decision, released on July 30, 2015 with respect to a motion for an order for directions. The motion was brought in the context of an application for guardianship of the property and personal care of Edith Plummer. The applicant is the son of Edith Plummer. In the proceeding, he questions the validity of attorneys for property and personal care executed by his mother in December 2014.
[2] In December 2014 Mrs. Plummer appointed Ms. Thompson-Walker as her attorney for property, with the applicant named as an alternate attorney for property. Mrs. Plummer also appointed Mrs. Thompson-Walker and the applicant, jointly and severally, as her attorneys for personal care.
[3] Although Marilyn Kennedy is described in the title of proceeding as an attorney for personal care for Edith Plummer, she has not been appointed as such. She does not act formally in any capacity on behalf of Edith Plummer. Mrs. Kennedy is a friend of Edith Plummer.
[4] The applicant and the respondents, Edith Plummer and Barbara Thompson-Walker agreed upon a number of terms of an order pursuant to which Edith Plummer was to attend a capacity assessment. The parties were unable to reach an agreement with respect to the inclusion or exclusion in the order for directions of three terms proposed by the applicant (the “Production Terms”) with respect to:
• Edith Plummer’s medical records from October 2012 forward; and
• The “legal file” of lawyer Eric Honey. It was Mr. Honey who prepared the power of attorney documents, the validity of which the applicant is now questioning on the basis of alleged lack of capacity on the part of Edith Plummer at the relevant time.
[5] The applicant’s motion proceeded solely with respect to the Production Terms. For the reasons set out in my endorsement dated July 30, 2015, the order for directions did not include the Production Terms.
[6] On the return of the motion, counsel for Mrs. Plummer, acting as agent for Marilyn Kennedy, requested that the application as against Ms. Kennedy be dismissed. The request was made on the grounds that Ms. Kennedy is not: a) named in any document as an attorney for personal care of Mrs. Plummer; and/or b) a necessary party to the application.
[7] The request on behalf of Ms. Kennedy was not granted because:
• The applicant did not, prior to the return of the motion, have an opportunity to consider the request;
• Ms. Thompson-Walker had only recently retained counsel and her counsel did not have instructions on the matter; and
• It would have been unfair to both the applicant and Ms. Thompson-Walker to grant the request without giving each of them an opportunity to consider the terms, if any, they might seek in relation to the dismissal of the application against Ms. Kennedy.
a) Positions of the Parties
[8] The positions of the parties with respect to costs are as follows. The applicant says there was no successful party on this motion or that “at best”, the success on the motion was “divided”. The applicant relies on the request on behalf of Ms. Kennedy not being granted as part of the divided success. The applicant requests that costs of the motion be reserved to the judge who ultimately hears the guardianship application or, in the alternative, that each party bear his or her own costs of the motion.
[9] Edith Plummer requests costs payable by the applicant on a substantial or, in the alternative, partial indemnity basis for the following reasons:
• The applicant was unsuccessful on the motion with respect to the Production Terms;
• The applicant’s insistence that the Production Terms be included was unreasonable given the practicalities with respect to the capacity assessment; and
• Edith Plummer offered to consent to an order for directions on the terms as per the order for directions ultimately made.
[10] The position of Ms. Thompson-Walker is essentially the same as that of Edith Plummer.
[11] In summary, Mrs. Plummer and Ms. Thompson-Walker say that proceeding on the motion for directions was unnecessary and premature. With respect to the latter, all of the parties represented on the motion agreed that if the capacity assessment indicates that Edith Plummer has capacity, then there is no need for the production of either the medical records or Mr. Honey’s file.
b) Entitlement to Costs
[12] I find that the motion proceeded to a hearing specifically because of the applicant’s intransigence in refusing to leave the Production Terms to be addressed, if necessary, at a later date. In their respective costs submissions, Mrs. Plummer and Ms. Thompson-Walker have each included copies of e-mail communication between counsel for the parties represented on the motion. The e-mail messages set out the attempts to negotiate the terms of an order for directions.
[13] The e-mail communication demonstrates the applicant’s insistence that the Production Terms be included in the order for directions. The applicant was prepared to agree that the order for directions provide that the Production Terms would only be enforced if it were determined by the capacity assessor that Edith Plummer lacked capacity as of September 2015 (when the capacity assessment was to be carried out). The applicant’s position was that the inclusion of the Production Terms in the order for directions would eliminate the requirement for the parties to return to court (and to incur additional expenses), if necessary, subsequent to the capacity assessment. The applicant considered his approach to the Production Terms to be cost-effective.
[14] I do not agree with the applicant’s submission that success in the matter was “divided”. The request on behalf of Ms. Kennedy for dismissal of the application against her was not granted in part because counsel for the applicant did not have notice, prior to attending on the return of the motion, that such a request would be made. The applicant was given the opportunity to consider the request before responding to it. That indulgence does not support an argument of divided success on the motion.
[15] I am confident that Ms. Kennedy’s request for dismissal of the application as against her would not have been made in open court but for the appearance of the parties on the return of the applicant’s motion. The request in open court on Ms. Kennedy’s behalf was reasonable and a cost-effective way to initiate the discussion of the merits of the application against her. No doubt the discussion would have been initiated out-of-court in any event. Minimal court time was spent on that issue.
[16] The real focus of both the motion and court time was the applicant’s request for inclusion of the Production Terms in the order for directions. There were a number of procedural and substantive reasons why the applicant did not succeed on the motion. It should have been obvious to the applicant that:
• The relief requested with respect to the Production Terms could not be granted because:
➢ Parties affected by the order, including Mr. Honey, had not been given notice of the motion; and
➢ There was no basis upon which to dispense with the requirement for service of the motion record on the non-parties; and
• The Production Terms were not well-considered and were likely unworkable in the context of the provisions of the Substitute Decisions Act, 1992, S.O. 1992, c. 30.
[17] I find that the motion to address only the Production Terms was an unnecessary step within the meaning of subrule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[18] Mrs. Plummer and Ms. Thompson-Walker were each prepared to agree to an order for directions as proposed by the applicant – with the exception of the Production Terms. Although the offers made in that regard do not fall within Rule 49 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, I am entitled to consider the offers when deciding the matter of costs.
[19] For the reasons set out above, I find that each of Mrs. Plummer and Ms. Thompson-Walker is entitled to her respective costs of the motion on a partial indemnity basis in any event of the cause.
c) Fixing Costs
i) Edith Plummer
[20] I agree with the applicant that the costs claimed by Edith Plummer are excessive and include matters not related to the motion. The full indemnity fees identified on Mrs. Plummer’s behalf are $14,035 (in excess of 50 hours of work). By comparison, the applicant’s full indemnity fees are $7,000 and they include the drafting of a management plan (work which was not done on Mrs. Plummer’s behalf).
[21] From the in excess of 50 hours of time claimed on behalf of Mrs. Plummer, I would:
• Reduce the time for communication with opposing counsel from 3.9 hours to 3 hours;
• Reduce the time for communication with client from 9.3 hours to 5 hours; and
• Reduce the time related to reviewing the application record and preparing responding materials from 29.7 hours to 12 hours.
[22] The hours identified of 50.7 are therefore reduced by 20.2 hours to 27.8 hours. Ms. Vinograd was called to the bar in 2011 and has a full indemnity hourly rate of $235. I find that rate to be reasonable for a lawyer with four years’ experience. The partial indemnity fees allowed to Mrs. Plummer are calculated as follows:
Full indemnity fees = $235 x 27.8 hours = $6,533.00
Partial indemnity fees = $6,533.00 x 0.60 $ 3,919.80
HST on fees $ 509.57
Sub-total (fees & HST) $ 4,429.37
[23] Of the disbursements totalling $346.97 (excluding HST) claimed for the motion, I:
• Eliminate the filing fees for the notice of appearance ($102.00), as that is an expense to be claimed in the context of the overall application and is not specific to the motion;
• Reduce the photocopy charges to $85.00 (from $164.30) because the particulars (number of pages and charges per page are not provided). At $.50 per page, $164.30 represents 328 pages which is clearly excessive;
• Allow the courier charge of $37.84;
• Eliminate parking ($12.83), as there is no explanation as to how the parking expense relates to the motion; and
• Allow the filing fee of $30.00 for filing the materials specific to the motion.
The disbursements are reduced from $346.97 to $152.84, with HST to be calculated based on the latter amount.
[24] In summary, the partial indemnity fees payable to the respondent, Mrs. Plummer by the applicant are:
Fees $ 3,919.80
HST on fees $ 509.57
Disbursements $ 152.84
HST on disbursements $ 19.87
Total $ 4,602.08
ii) Barbara Thompson-Walker
[25] I do not agree with the applicant’s submission that: a) it was unnecessary for Ms. Thompson-Walker to be represented at the return of the motion; and b) therefore she should not recover any costs for the motion. As the primary attorney for property and, jointly and severally with the applicant, an attorney for personal care of Edith Plummer it was reasonable for Ms. Thompson-Walker to be represented on the return of the motion.
[26] The full indemnity fees identified in the costs submissions of Ms. Thompson-Walker are $5,602.54 including H.S.T. The fees are based on 13.4 hours of work (including 2.5 hours for the motion) and an hourly rate of $370.00 for counsel with 15 years of experience. The partial indemnity rate claimed is $222. The fees claimed on the partial indemnity scale total $2,974.80 (exclusive of HST).
[27] I find the time spent of approximately 11 hours for: a) reviewing the application and motion records; and b) communication with the client to be slightly excessive. No responding materials were prepared and filed on behalf of Ms. Thompson-Walker. It is reasonable to infer that some of the time spent is related to the application more generally and is not related to the motion for an order for directions. For that reason, I would reduce the time spent from a total of 13.4 hours to 9 hours.
[28] The partial indemnity fees allowed to Ms. Thompson-Walker are calculated as follows:
Full indemnity fees = $370 x 9 hours = $3,330.00
Partial indemnity fees = $3,330.00 x 0.60 $ 1,998.00
HST on fees $ 259.74
Sub-total (fees & HST) $ 2,257.74
[29] The disbursements claimed on behalf of Ms. Thompson-Walker total $172.62, including HST. I do not allow any of the disbursements claimed on behalf of Ms. Thompson Walker:
• The $102.00 fee for filing the notice of appearance is an expense to be claimed in the context of the overall application and is not specific to the motion;
• The LPIC Transaction Levy of $50.00, if recoverable as a disbursement item, is to be addressed in the context of the overall application.
• The court run charge of $15.00 is, I infer, related to the filing of the notice of appearance (given that no materials were filed on behalf of this respondent on the motion).
• No explanation is provided for the laser printing charge of $3.25.
[30] In summary, the partial indemnity fees payable to the respondent, Ms. Thompson-Walker by the applicant are $2,257.74.
Date: November 27, 2015
Justice S. Corthorn
OTTAWA COURT FILE NO.: 15-64365
DATE: 2015/11/27
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: William Richard Plummer, Applicant
AND
Edith Gweneth Plummer,
Barbara Thompson-Walker, in her capacity as Power of Attorney for Property for Edith Plummer,
Marilyn Kennedy, in her capacity as
Power of Attorney for Personal Care for Edith Plummer, and
The Ontario Public Guardian and Trustee,
Respondents
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Miriam Vale Peters for the Applicant
Yasmin M. Vinograd for the
Respondent, Edith Gweneth Plummer
Kathleen P. McDormand for the Respondent, Barbara Thompson-Walker
RULING AS TO COSTS
Justice S. Corthorn
Released: November 27, 2015