Court File and Parties
COURT FILE NO.: 01-420013 DATE: 2017-01-10 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jeremy Blackmore, in his capacity as Estate Trustee of the Estate of Robert MacNeil, Applicant AND: Mark Bower, Respondent
AND BETWEEN: Mark Bower, Respondent (Applicant by Counter-Applicant) AND: Jeremy Blackmore, in his capacity as Estate Trustee of the Estate of Robert MacNeil, and also in his personal capacity, Respondents
BEFORE: L. A. Pattillo
COUNSEL: Benjamin Arkin, for the Applicant Kathryn Balter, for Jeremy Blackmore in his personal capacity Douglas M. Cunningham, for the Respondent Mark Bower (Applicant by Counter-Application)
HEARD: In Writing
Costs ENDORSEMENT
[1] On November 18, 2016, I released reasons allowing the application of the Estate of Robert MacNeil (the “Estate”) to recover its interest in a townhouse which was owned by Mr. MacNeil and the Respondent Bower (“Bower”) at the time of Mr. MacNeil’s death. At the same time, I dismissed the Estate’s motion for contempt against Bower and Bower’s cross-application against the Estate and Jeremy Blackmore (“Blackmore”), the Estate Trustee, in his personal capacity, claiming, among other things, unjust enrichment.
[2] At the conclusion of my reasons, I directed that if costs could not be agreed, each party should make submissions. I have received submissions on behalf of both the Estate and Blackmore personally. Mr. Cunningham advises that he has been unable to obtain instructions from his client since communicating my decision. As a result, he has made no submissions concerning the Estate and Blackmore’s claims for costs except in respect of how the costs should be paid.
[3] In my decision I concluded on the evidence that at the time of the deceased’s death, he and Bower owned the townhouse together as tenants in common. Prior to the hearing, the townhouse had been sold. As part of my decision, I directed that the closing proceeds of $447,962.44 held in trust by the real estate solicitor (the “Trust Funds”) were to be distributed as follows:
- To the Estate, $423,338.02 in total; and
- To Bower $24,624.42.
[4] The Estate and Blackmore have incurred significant legal costs in respect of the application, the contempt motion and in responding to Bower’s cross-application. They are entitled to their costs. The Estate’s total partial indemnity costs are approximately $115,000. Blackmore personally has total partial indemnity costs of $39,000. In addition, both the Estate and Blackmore personally made numerous offers to settle to Bower prior to the commencement of the hearing.
[5] Both the Estate and Bower have submitted that if Bower did not appeal my decision, they would accept a costs award of $75,000 inclusive of disbursements and taxes, to be allocated between them as I might determine. Bower has not appealed the decision.
[6] In my view, considering the issues raised and the result and factoring in that the Estate’s contempt motion was dismissed (although it was just a small part of the proceedings), I consider that $75,000 is a fair and reasonable amount for the costs of both the Estate and Blackmore. Further, given Bower’s incurred costs as provided by Mr. Cunningham, an amount of $75,000 is well within what Bower would reasonably have expected to pay.
[7] In the circumstances, I need not consider the offers to settle from both the Estate and Blackmore.
[8] Accordingly, the costs of the application and cross-application for the Estate and Blackmore are fixed at $75,000 in total.
[9] As noted, the Estate and Blackmore each had counsel given the separate allegations Bower made against Blackmore personally. While Blackmore was entitled to separate advice concerning Bower’s claim against him personally, given the similarity of the claims, proportionality required only one counsel to represent him in the cross-application, particularly at the hearing given that Bower abandoned all but the unjust enrichment claims against Blackmore personally and that same claim was advanced against the Estate. As a result, I allocate the $75,000, $55,000 to the Estate and $20,000 to Blackmore personally.
[10] The Estate and Blackmore submit that the costs should be paid first out of Bower’s share of the townhouse proceeds ($24,624.42) and second from Bower’s 5% beneficial share of the Estate (estimated to be about $20-25,000).
[11] As part of his submissions, Mr. Cunningham has provided an irrevocable direction to the real estate solicitor and himself from Bower dated October 28, 2016, providing that Bower’s share of the Trust Funds are to be paid to Mr. Cunningham for services rendered and to cover Bower’s share of the mediator’s invoice for the mediation. Mr. Cunningham has advised that he has rendered an account to Bower in excess of Bower’s share of the Trust Funds and he has significant unbilled time remaining. He indicates that he is asserting a solicitor’s charging lien for unpaid fees over both Bower’s interest in the Trust Funds and his interest in the Estate.
[12] While I am prepared to give effect to Bower’s irrevocable direction which pre-ceded the hearing, I am not prepared to recognize Mr. Cunningham’s claim for a charging order. He has brought no application for such relief. Even if such an application was before me, I would not give effect to it, given the result achieved for Bower, without a full understanding of the basis upon which Bower resisted the application and commenced the cross-application, both of which I consider to have been ill-conceived.
[13] In the result, Bower’s share of the Trust Funds in the amount of $24,624.42 currently held by the real estate solicitor shall be paid to Mr. Cunningham on account of his fees with the specific direction that Mr. Cunningham is to pay Bower’s share of Invoice #3095309 dated December 11, 2014 from Dentons Canada LLP in respect of the mediator’s fees.
[14] The Estate and Blackmore’s costs as assessed herein shall be paid from Bower’s 5% interest in the Estate, first to Blackmore personally and the balance to the Estate.
[15] Blackmore is to be indemnified out of the assets of the Estate for costs incurred by him in these proceedings in his capacity as estate trustee.
[16] In the absence of any comments from Mr. Cunningham, I have signed the form of judgment provided to me by the Estate.