Catto v Catto, 2016 ONSC 5047

Catto v Catto, 2016 ONSC 5047

Court File and Parties

Court File No.: 15-65662 Date: 2016/08/09 Superior Court of Justice - Ontario

Re: Nam Reid Catto and Chuck Catto, Applicants And Donna McKay in her personal capacity and in her capacity as Estate Trustee of the Estate of Mark Catto, Respondents

Before: Mr. Justice Robert J. Smith

Counsel: Miriam Vale Peters, for the Applicants Larry Douglas Love, for the Respondents

Heard: In writing

costs endorsement

Overview

1Nan Catto (“Nan”) was not successful on her request for an order directing that Mark’s ashes be exhumed from his grave in Peterborough and half of his ashes be returned to her for burial in the family plot in Lacolle, Québec; or for an order appointing her as Estate trustee without a will. Mark’s wife, Donna was successful in opposing this motion. Nan was successful on her request for an order directing the Estate to repay her for the monies she paid for Mark’s funeral and other expenses related to her son’s death. Finally, Chuck Catto, (“Chuck”) was successful in obtaining an order to inspect the hockey card collection to try to determine which hockey cards that were in Mark’s possession belonged to him.

2The factors to be considered when fixing costs are set out in Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and include in addition to success, the amount claimed and recovered, the complexity and importance of the matter and the principle of proportionality, the conduct of any party which unduly lengthened the proceeding, whether any step was improper, vexatious or unnecessary, or taken through negligence mistake or excessive caution, a party’s denial or refusal to admit anything, any offer to settle, the principle of indemnity, scale of costs, hourly rate claimed in relation to the partial indemnity rate set out in the Information to the Profession effective July 1, 2005, the time spent, and the amount that a losing party would reasonably expect to pay.

Positions

3The respondent, Donna McKay, seeks cost of $10,133.65 on a substantial indemnity basis as she exceeded the terms of her offer to settle dated February 16, 2016 after the hearing. The respondent proposes that the costs awarded be offset against the amount ordered payable by Donna for the reimbursement of the funeral expenses paid by Nan. I agree with this proposal.

4The applicant submits that success was divided because Donna was ordered to divide the hockey cards and repay the sum $9,138.00. The applicant submits that she has incurred $14,435.00 in fees and requests that a third of her fees in the amount of $4,811.67 be paid by Donna.

Success

5In this case success was divided as the Donna was successful in having Nan’s request to exhume Mark’s ashes and give her one half of his ashes dismissed, however, and she was ordered to repay the funeral expenses of $9,138.00 which Nan had paid. The hockey cards were ordered to be inspected and then if the actual ownership could not be determined, to be divided equally.

Complexity and Importance and Proportionality

6The issues were of average complexity and were important to the parties. The amount of reimbursement claimed was below the Small Claims Court limit.

Offers to Settle, Scale of Costs, Hourly Rates and Time Spent

7In this case, the respondent made an offer to settle on February 16, 2016 wherein the she offered to deliver all of the hockey cards in her possession to the applicants and agreed to pay to the applicants the sum of $9,138.32 which were paid for funeral expenses and also offered to deliver various hockey paraphernalia. The offer to settle exceeded the results obtained and very closely mirrored the result after the hearing with the exception that the respondent offered to give 100% of the hockey cards to the applicants instead of half as ordered. As a result of the offer to settle, Donna is entitled to receive substantial indemnity costs from February 16, 2016 onwards. I will only award a small amount of costs for the period before February 16, 2016 because success was divided; however, Donna was successful on the main issue which was the right to be named as the administrator of the Estate.

Amount the Unsuccessful Party Would Reasonably Expect to Pay

8In this case, the applicant has incurred her costs of $14,435.00 plus taxes and disbursements of almost $1,000.00. The applicant would therefore have expected to pay approximately this amount. The amount claimed on a substantial indemnity claimed by counsel for Donna was very reasonable and proportionate to the amount involved.

Disposition

9Having considered all of the above factors and the divided success and that the offer to settle was exceeded by the respondent, the fact that a substantial amount of the legal work was done prior to the date of the offer to settle, the applicants are ordered to pay costs to the respondents in the amount of $5,000.00 plus HST of $650.00, plus disbursements of $500.00 plus HST of $65 for a total of $3,215.00. This amount shall be set off against the amount of $9,138.00 owing by the respondent to the applicant. In addition, Donna shall deliver, to Chuck Catto, at her expense, all hockey cards in her possession purchased and collected up to the 1999-2000 NHL season.

R. Smith J.

Date: August 09, 2016

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