Court File and Parties

CITATION: Pamela Poitras v. The Estate of Gilles Roger Poitras, 2016 ONSC 7262

COURT FILE NO.: 14-166

DATE: November 22, 2016

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Pamela Poitras, Applicant

AND

The Estate of Gilles Roger Poitras, deceased, Chantal Davey, in her personal capacity, Dany Poitras in his personal capacity, Chantal Davey and Dany Poitras, executors of the last will and testament of Gilles Roger Poitras, deceased, Jacquelin Poitras, Mariette Delorme and Louise Gougeon, Respondents

BEFORE: The Honourable Mr. Justice Martin James

COUNSEL: Mary Shushack, Counsel for the Applicant John W. Montgomery, Counsel for the Respondents other than Jacquelin Poitras No one appearing for Jacquelin Poitras

HEARD: Written Submissions

COSTS ENDORSEMENT

[1] This is a costs endorsement arising from a claim of undue influence respecting the preparation of a will and a request for an order for support pursuant to the Succession Law Reform Act.

[2] The applicant was unsuccessful in her effort to have the contested will of her late husband set aside because of undue influence alleged to have been exerted by the respondents, his children from a previous marriage.

[3] The applicant was successful, however, in proving that she was entitled to court-ordered support which was granted as a lump sum of $85,000.00.

[4] The Applicant’s costs claim is for $114,535.49. This amount is broken down as follows:

(a) fees of $95,394.00;

(b) HST on fees of $12,401.22; and

(c) disbursements including HST of $6,740.27.

[5] The fees component may be broken down further as follows:

(a) Mary Shushack, counsel, 293.4 hours at $300.00 per hour;

(b) Sharron Jansen, law clerk, 122.9 hours at $60.00 per hour.

[6] The applicant said she made a number of reasonable offers. Most, however, were time limited and only one was in place when the trial started. This offer was not more favourable to the respondents than the result at trial. The applicant’s written offers do not result in an entitlement to enhanced recovery of legal costs under Rule 49.

[7] The applicant also says the issues were numerous and complex. There were suspicious circumstances present when the new will was signed in 2013. The documentary evidence was voluminous.

[8] The respondents say that they were entirely successful on the issues of testamentary capacity and undue influence. They seek a portion of their costs based on partial indemnity of $56,388.33. They say that costs should be apportioned on the basis that about 25% of the applicant’s time was spent on the Succession Law Reform Act claim or $14,869.46. This amount is based on 25% of what the applicant’s reasonable partial indemnity costs should be or $59,477.82. This figure represents a 20% reduction due to excessive time spent then a further reduction of 60% to arrive at a partial indemnity amount. The bottom line for the respondents is that after crediting the applicant a reasonable allowance for her costs ($14,869.46), the applicant should pay $42,518.87 to the respondents.

[9] In my view, the applicant should recover a reasonable allowance for her costs. The general principles for assessing costs are set out in Rule 57 of the Rules of Civil Procedure and in particular, I have taken the following factors into account in determining an appropriate amount:

(a) the applicant was successful on one of the two branches of her claim;

(b) the amount of costs claimed by the applicant is excessive. The applicant was unsuccessful in the will challenge which consumed a substantial portion of time.

(c) the inclusion of substantial amounts for the services of paralegals and law clerks is often problematic. A lawyer’s billing rate includes secretarial support. Billings by staff in a supporting role, separate and additional to a lawyer’s billing rate, must be clearly identified including a statement of the specific service provided, the time spent providing the service and a specified billing rate. In this case, the applicant claims law clerk time of 123 hours which is not well documented;

(d) in the absence of dockets, it is impossible to determine whether the claims for preparation of correspondence are in addition to the time otherwise shown for a particular service. For example, Ms. Shushack claims 4.5 hours for investigating and requesting medical records, then an additional 4.9 hours for correspondence, including correspondence related to cross-examinations, which would probably be minimal.

(e) a substantial portion of the applicant’s efforts were directed at establishing the inadequacy of Mr. Conroy’s efforts and services. While this had a role to play in the issue of whether the testator knew and approved of the contents of his new will in the face of the pressure from the respondents, the time spent on this aspect of the case was substantial, unwarranted and ultimately unsuccessful.

(f) the respondents were unsuccessful in relation to the support claim.

(g) there was a factual finding that suspicious circumstances were present in relation to the preparation and execution of the new will. The behaviour of the respondents, other than Jacquelin Poitras, was far from exemplary. They improperly applied pressure to their father to favour their interests over the interests of the applicant;

(h) none of the various written offers exchanged by the parties engaged the provisions of Rule 49;

(i) costs recoverable from the unsuccessful parties ought to be proportional to the complexity of the issues and the outcome of the litigation, and

(j) the respondents’ own partial indemnity costs were claimed at about $56,000;

[10] In the result, the applicant is granted costs fixed in the sum of $40,000 plus applicable HST of $5,200, disbursements of $6,447.03 and HST on taxable disbursements of $293.24 for a total of $51,940.27, payable by the respondents within 60 days.

The Honourable Mr. Justice James

Date: November 22, 2016

CITATION: Pamela Poitras v. The Estate of Gilles Roger Poitras, deceased, 2016 ONSC 7262

COURT FILE NO.: 14-166

DATE: November 22, 2016

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Pamela Poitras, Applicant

AND

The Estate of Gilles Roger Poitras, deceased, Chantal Davey, in her personal capacity, Dany Poitras in his personal capacity, Chantal Davey and Dany Poitras, executors of the last will and testament of Gilles Roger Poitras, deceased, Jacquelin Poitras, Mariette Delorme and Louise Gougeon, Respondents

BEFORE: Honourable Mr. Justice Martin James

COUNSEL: Mary Shushack, Counsel for the Applicant No one appearing for Jacquelin Poitras John W. Montgomery, Counsel, for the Respondents

COSTS ENDORSEMENT

James, J.

Released: November 22, 2016