SUPERIOR COURT OF JUSTICE – ONTARIO
RE: McLaughlin v Royal Bank of Canada et al.
BEFORE: LeMay, J.
COUNSEL: J. Gilmore, for the Applicant C. Bargman, for the Respondents
E N D O R S E M E N T
LeMay J.
1This was an interim proceeding in an estates matter. The Applicant, Shirley McLaughlin, sought various Orders from the Court. Ultimately, the only matter that I was called upon to determine was whether Shirley could remain in the home that she and Kenneth Drury Sr. occupied. I dismissed Shirley’s motion, and I must now fix costs.
2I am fixing costs for the interim issues that were argued before me. There are larger issues that continue to be litigated between the parties. That litigation is not yet complete, and I am not fixing the costs for any of the matters that remain ongoing.
The Positions of the Parties
3The Respondent, Robert, seeks costs in the sum of $40,681.76 on a partial indemnity basis. He takes this position for the following reasons:
a) The Applicant’s claim was remote, and stood little chance of success. In spite of this fact, the claim was aggressively pursued by the Applicant.
b) The Applicant put the Respondent “in peril of losing his property”, and wrongfully excluded him from his property.
c) The claim was a complex one, and was an attempt to expand the scope of the rights granted under the Succession Law Reform Act.
4The Applicant resists this claim for costs, and says that either no costs should be payable, or that the costs should be reserved to the trial judge for the following reasons:
a) I should have regard to the financial circumstances of the Applicant, and she cannot afford to pay costs.
b) The Applicant is likely to be successful at trial in obtaining some form of dependent’s relief under the Succession Law Reform Act.
c) The Respondent took an aggressive position on this application.
d) The Applicant was partially successful in obtaining some relief in this case.
Analysis
5I start from the premise that, where possible, the Court should fix the costs of each step in a proceeding in a timely way. In my view, the issue that was argued before me is a discrete step in the process. It concerned a specific issue, namely whether the Applicant should be entitled to continue living in the house that the Respondent, Robert, has title to.
6With that in mind, consideration must be given to the various factors set out in Rule 57.01. The most relevant of those factors in this case are:
a) The success of the parties in the step of the proceeding
b) The amount of costs that an unsuccessful party could reasonably expect to pay.
c) The importance of the issues.
d) The conduct of a party that tended to shorten or lengthen the proceedings.
7I start with the success of the parties. I note that the Applicant was successful in the interim proceeding before Bloom J. on April 11th, 2016, both in obtaining some interim support and in being entitled to remain in the house. The terms around the interim support remain in place. Costs were not addressed by the endorsement of Bloom J.
8The Applicant sought additional relief in this case, relating to the sale of the Wilson Avenue property and the appointment of a Trustee in Litigation. All of that relief was granted on consent, but it did require a motion to obtain this relief.
9In the circumstances, therefore, there was divided success. In my view, this means that the Respondent, if he is to obtain costs should be given substantially reduced costs. He should not be entitled to claim all of the costs that he actually incurred in the appearances before Bloom J. and myself.
10Then, there is the question of the amount of costs that an unsuccessful party could reasonably be expected to pay in this matter. The parties conducted cross-examinations in this matter, but I note that a portion of the cross-examination was directed to the question of whether the Applicant was a dependent within the meaning of the Succession Law Reform Act.
11The issue that was argued before me was a narrow one. It is not the whole question of whether the Applicant is a dependent, or whether she is entitled to support from the Estate. Those are questions to be determined in a different proceeding. As a result, the unsuccessful party in this case would certainly not expect to pay $30,000.00 or $40,000.00 in costs. A reasonable expectation for the costs in the portion of the litigation argued before me is in the range of $10,000.00 inclusive of HST and disbursements for a party that was entirely successful. While the Respondent had more success than the Applicant, success was mixed, and the Respondent should be entitled to substantially less than this amount in costs.
12Finally, there is the question of steps taken by the parties that tended to shorten or lengthen the proceedings. As I noted in my reasons on the merits, the Respondent brought a landlord and tenant proceeding in this case. In my view, that was a step that was not necessary, and tended to both lengthen the proceedings and make them more complicated.
13As a result, I award the Respondent Robert costs relating to the issue before me of $4,000.00 inclusive of HST and disbursements. These costs are to be paid 120 days after the closing of the Wilson Avenue property.
14I have deferred the costs award in this matter because of the Applicant’s financial circumstances. I accept that she would currently have substantial difficulties in meeting the costs award. However, I also acknowledge that she may very well be entitled to additional support once the Wilson Avenue property is sold. Given that fact, I do not view this as a case where the Respondent should be deprived of his costs. Instead, the balancing of interests favours an outcome where the costs are deferred to a time when the Applicant may have additional resources to pay them.
15For clarity, I note that the costs only cover the preparation of the materials and attendance before me. They do not relate to the interim interim motion before Bloom J, and do not address the costs associated with the larger proceeding.
LeMay, J.
DATE: August 5, 2016
CITATION: McLaughlin v. Royal Bank of Canada, 2016 ONSC 5014
COURT FILE NO.: 16/16
DATE: 2016 08 05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: McLaughlin v Royal Bank of Canada
BEFORE: LeMay, J.
COUNSEL: J. Gilmore, for the Applicant C. Bargman, for the Respondents
ENDORSEMENT
LeMay, J.
DATE: August 5, 2016