Court File and Parties

Court File No.: 05-107/14 Date: 20170629 Superior Court of Justice - Ontario

Between: Henia Gefen, in her personal capacity and as estate trustee of the Estate of Elia Gefen, Plaintiff And: Arie Gaertner et al, Defendants

Before: Newbould J.

Counsel: Aaron Blumenfeld, for Harry Gefen Christopher M.B. Graham, for the estate trustee of the estate of Yehuda Gefen Ronald B. Moldaver, Q.C., for Henia Gefen

Endorsement

[1] On 27 January, 2015 I appointed an estate trustee during litigation and ordered cost submissions to be made in writing. For some reason, the parties did not until recently make cost submissions. Mr. Moldaver for Henia Gefen says that the costs should now be left to the trial judge. I do not agree. There is no reason to depart from the normal rule that costs of a motion are to be dealt with by the motions judge unless there is some good reason. There is no good reason not to settle the costs now.

[2] Harry Gefen and the Estate of Yehuda Gefen each seeks costs on a substantial indemnity basis because they say the motion should not have been defended, it being obvious that an ETDL had to be appointed. I do not see that as being grounds for costs on the higher scale. They also claim costs on the higher basis because of scurrilous allegations made gratuitously by Harry Gefen. I decline costs on the higher scale because there has been no decision on whether these allegations are correct or not. Had the allegations been of significance on the motion and proven not to be established, costs on the higher scale would have been warranted, but this was not the case.

[3] Mr. Moldaver says he asked for dockets and they were refused. Thus costs should not be awarded. I do not in this case agree. If Mr. Moldaver seriously thought the dockets would be of assistance, he could have schedule a 9:30 conference or brought a motion if necessary. In this case, sufficient particulars have been provided by the claimants.

[4] Harry Gefen claims legal fees of $46,818 plus HST. It is asserted by Mr. Moldaver that some of the work involved work on matters in the file other than for the motion. There may be something in this although particulars are not provided as to what that other work was. Moreover, Mr. Moldaver did not provide a cost outline as required by the rules and the attack on the amount of time spent may be viewed as an attack in the air. See Smith v. Rotstein 2012 ONSC 4200 and the authorities cited. There is no doubt that the evidence on the motion was extensive and it was hard fought. The hourly rates claimed are reasonable, if not modest. Taking into account the factors in rule 57.01, including what amount the unsuccessful party could reasonably expect to pay, a reasonable amount for fees for Harry Gefen is $45,000 plus HST.

[5] Harry Gefen also claims a disbursement paid to Professor Drummond of Osgoode Hall law school, who was retained to assist in the preparation of the case. She is the wife of Harry Gefen. She drafted a great deal of the material filed by Harry Gefen. Professor Drummond’s total charges based on a partial indemnity rate of $300 per hour, being 60% of her actual charges, is $63,000. One-half of this is claimed by Harry Gefen which with HST comes to $35,765. I think this expense is reasonable and it is allowed. The other disbursements are normal and allowed.

[6] In the result, Harvey and Henia Gefen are ordered to pay costs to Harry Gefen of $45,000 plus HST and disbursements of $35,765 to Professor Drummond and remaining disbursements, including HST, of $14,725.55, all to be paid within 30 days.

[7] The estate of Yehuda Gefen seeks costs on a partial indemnity basis for legal fees of $45,813.40 plus HST and disbursements of $738.12. The same considerations apply to this claim as with the cost claim made by Harry Gefen. In my view, a reasonable amount for legal costs is $45,000 plus HST. The disbursements are reasonable.

[8] In the result. Harvey and Henia Gefen are ordered to pay costs to estate of Yehuda Gefen for legal fees of $45,000 plus HST and disbursements of $738.12, all to be paid within 30 days.

Released: June 29, 2017 Newbould J.