O’Donovan v. O’Donovan, 2017 ONSC 4143

CITATION: O’Donovan v. O’Donovan, 2017 ONSC 4143

COURT FILE NO.: FS4-07/C-26-07/C-248-07/ES-623-07/C772-07/08-004-09/ 08-005-09/ES-1040-11/ ES-1041-11 and ES-827-16

DATE: 2017-06-28

ONTARIO

SUPERIOR COURT OF JUSTICE at KITCHENER

In the Michael Val O’Donovan Family Trust #1

In the Michael Val O’Donovan Family Trust #2

In the Sheila O’Donovan Family Trust

SUPERIOR COURT OF JUSTICE – ONTARIO

Brian O’Donovan, Patrick O’Donovan, Michael O’Donovan and Tyler O’Donovan Applicants

-and -

Sheila O’Donovan (in her personal capacity and her capacity as Trustee of The Sheila O’Donovan Family Trust), Edward Kalkstein (in his personal capacity and in his former capacity as Trustee of the Sheila O’Donovan Family Trust), Steven O’Donovan aka Stephan O’Donovan, Christopher Anthony O’Donovan, The Estate of Michael Val O’Donovan, And Ministry of the Attorney General Office of the Children’s Lawyer, Respondents

COUNSEL: Arieh Bloom, Justin Nasseri & Sean Grayson - Solicitors for the Applicants

H. Scott Fairley & Elena Mamay, - Solicitors for Sheila O’Donovan (in her personal capacity and her capacity as (Trustee of the Sheila O’Donovan Family Trust)

Mark Muir Rodenburg, - Solicitor for the Children’s Lawyer on behalf of all the minor beneficiaries, the unborn and the un-ascertained beneficiaries (watching brief)

Edward Kalkstein (not represented at hearing)

The Estate of Michael Val O’Donovan, Unrepresented

BEFORE: The Honourable Mr. Justice J.W. Sloan

HEARD: June 12, 2017

ENDORSEMENT

Motion to Remove Solicitors and Add Defendant - Costs

[1] After a half-day motion, in which she was successful, the respondent Sheila O’Donovan seeks her costs on a substantial indemnity basis in the amount of $81,193.45, or alternatively on a partial indemnity basis in the amount of $61,637.67.

[2] As set out in the previous endorsement, Ms. O’Donovan was forced to find new counsel when Mr. Amey passed away.

[3] Upon choosing counsel in early 2017 the Applicants threatened to bring their motion in March, however did not serve their motion record until May 2017.

[4] When they did serve their motion it created some urgency because the larger motion, to stay the actions, was set to continue for four days in August. This meant that Ms. O’Donovan’s lawyers had to assimilate bankers’ boxes full of material to respond to the motion.

[5] In addition they had to produce responding material to prepare for and attend on cross examinations and of course on the motion itself.

[6] While I did not find anything nefarious in the applicant’s motion, I also did not rule out whether or not Mr. Cappelli may have had a conflict of interest.

[7] In their submissions on costs both parties seem to hyperbolize.

[8] Keeping in mind the tenet of proportionality, what would the applicants expect to pay for costs if they were unsuccessful?

[9] They would have known, because of their association with this file, that Ms. O’Donovan’s new lawyers, who knew nothing of the file, faced a monumental task of responding to the motion.

[10] Despite arguments from Ms. O’Donovan, I do not find that this is a case or substantial indemnity costs are warranted.

[11] I also find the request for costs at all levels to be breathtaking.

[12] After taking everything into consideration, I am prepared to allow costs to Ms. O’Donovan in the amount of $35,000 for fees, plus $4,550 for HST, plus $2,970.33 for disbursements for a total of $42,520.33.

J. W. Sloan J.

Released: June 28, 2017