Savoury v. Farray-Stuart, 2016 ONSC 3450

1In this action, the plaintiff, an elderly lady, sought recovery of substantial sums of money she lent her younger friend, the defendant, Veronica Ethel Farray-Stuart. Ms. Farray-Stuart used approximately $78,567 received from the plaintiff to buy a house which she put in her own name and at a later date, transferred an interest in this property to the defendant Gwenneth Matthew without advising the plaintiff. The action was settled on the basis that Ms. Farray-Stuart would repay to the plaintiff the sum of $125,000 plus her partial indemnity costs.

2The plaintiff’s actuary calculated the amount owing although this was a challenging job given the inter-mingling of funds and lack of appropriate documentation in some instances.

3In May 2009, Ms. Farray-Stuart executed a promissory note in favour of the plaintiff in the amount of $118,659, payable by March 1, 2012. Some payments were made against this note. The note was obtained at the insistence of the plaintiff’s grandson, who was understandably concerned about the situation.

4However, the plaintiff was forced to commence and prosecute this action in order to collect the balance. Ms. Farray-Stuart was not particularly cooperative in resolving this claim, to which she had no valid defence, until she retained her present counsel.

5A substituted service order was required; a motion for a CPL on the property was brought as well as a summary judgment motion on the promissory note, which was granted by me (in the sum of $125,000). There were excessive delays on Ms. Farray-Stuart’s part in retaining and instructing counsel. The plaintiff sought a declaration that all or part of the debt should be deemed to be secured by way of equitable mortgage on the property in issue.

6Plaintiff’s counsel seeks partial indemnity costs in the sum of $43,840 on behalf of his client. Plaintiff’s counsel handled the matter competently and charged 82 hours to the matter at rates of $255 to $295 per hour, together with 132 hours of low clerk time at $145 to $155 per hour.

7The matter was settled on the eve of what would have been a two day trial on the equitable mortgage issue. The debt itself was no longer in dispute.

8Counsel for the defendant, Ms. Farray-Stuart submits that the fees claimed are excessive and beyond his client’s reasonable expectations. He also complains that included in the fees claimed are the default proceedings against the defendant Matthew.

9In my view, the hourly rates and time charged by plaintiff’s counsel are not excessive. The time attributable to dealing with the interests of the defendant Matthew is properly claimed against the defendant Ms. Farray-Stuart because she conveyed an interest in the land to Matthew in such a way as to prejudice the plaintiff’s interests. Further, the defendant Ms. Farray-Stuart adopted an approach to this litigation that required the plaintiff to take the various steps she did.

10As the case law illustrates, the Court has the discretion to fix the fees it considers appropriate and is not bound by the exact hours multiplied by the billing rates of counsel. This was not a complex case, although the accounting issues were not free of difficulty.

11In all the circumstances, I fix the partial indemnity costs of the plaintiff in the sum of $30,000 fees plus disbursements of $8,646, inclusive of HST, payable forthwith by the defendant Ms. Veronica Ethel Farray-Stuart.