Court File and Parties

Citation: Kirby v. Grolmus, 2017 ONSC 880 Court File No.: 13-43587 Date: 2017-02-06 Superior Court of Justice – Ontario

Re: ELSBETH KIRBY, Plaintiff And: RICHARD HERBERT GROLMUS, Defendant

Before: The Honourable Mr. Justice C.S. Glithero

Counsel: Richard A. Wellenreiter and Jason Little, for the Plaintiff M. Jasmine Sweatman, for the Defendant

RULING ON COSTS - MOTION TO STRIKE PLEADINGS

[1] By written reasons released on November 30, 2016, I dismissed the defendant’s motion to strike most portions of the statement of claim and invited costs submissions in writing. Those submissions have been received from both parties.

Position of the Plaintiff

[2] The successful plaintiff seeks an award of costs on a substantial indemnity basis in the amount of $8,849.65. In addition to that, I construe the submissions in paragraph 18 as also requesting an amount of $1,624 for preparation of costs submissions. The total is $ 10,473.65.

[3] In terms of the scale of costs, the plaintiff relies on findings in my reasons at paragraph 45. As to the first of those findings, namely that the motion to strike was brought 3 years after the action was commenced, and after all pleadings had been exchanged and amended and after discoveries were completed of both parties, other than the outstanding motion for undertakings and refusals, the plaintiff points to Rule 21.02 which expressly provides that failure to make a motion to strike pleadings promptly may be considered when awarding costs and the plaintiff asks me to do so.

[4] The plaintiff advises that she made two offers to settle. The first, dated November 16, 2016 offered to settle the motion on the basis that the defendant would consent to a dismissal of his motion to strike and would pay costs to the plaintiff on a partial indemnity scale.

[5] The second offer to settle by the plaintiff dated December 8, 2016 was made after my ruling and appears to be an attempt to settle the costs issue, which I had urged counsel to try and do in my reasons. In that offer, the plaintiff offers to settle for 75% of the full indemnity amount as set forth therein, and advises that if the matter is not settled, the plaintiff will be seeking costs on a substantial indemnity basis.

[6] The motion was heard as a long motion and occupied 4.5 hours of court time. Fairly extensive materials were prepared, filed and relied upon.

[7] In my opinion, the plaintiff’s bill of costs with respect to fees is reasonable as to hourly rates charged for the more senior counsel, Mr. Little, who was called to the Bar almost 5 years ago and for a law clerk.

[8] I have no reason to quarrel with the claim for disbursements.

Position of the Defendant

[9] The defendant maintains the motion to strike was necessary and reasonable, and costs should be left to be determined by the trial judge who will have a full appreciation of the evidence and therefore, the necessity for the motion. In the alternative, the defendant says the order should provide that each party bear their own costs.

[10] The defendant seeks to bolster his argument that costs should be left to the trial judge by advising me of his application for leave to appeal to the Divisional Court and by providing a copy of his factum in that regard.

[11] It appears that in part, the defendant’s position is that I should be persuaded that I was wrong, having regard to his factum on leave to appeal, and that accordingly I should leave the matter of costs to the trial judge before whom the defendant expects to be successful.

[12] I am not inclined to leave the costs issue to any future court as it seems to me that it is as expeditious to everyone if I decide the issue now rather than having it raised months or years down the line. If I am found to have erred by some future court, this costs ruling will fall as well.

[13] The defendant argues that its motion to strike was in fact brought promptly, even though it was 3 years after the statement of claim. This position is based on the contention that the plaintiff waited almost 2 years after an examination for discovery to bring the motion to compel answers to undertakings and refusals and that accordingly the defendant was somehow entitled to wait until the plaintiff had taken that step. Given the defendant’s position that the plaintiff had no standing to bring most of her claim, and was not entitled to an accounting, I fail to see why such a position ought not to have been the subject of a prompt motion to strike before everyone spent so much time on the completion of pleadings and on discoveries.

[14] The defendant also submits that the motion was not retaliatory, but rather was “brought as a response when all other efforts failed to convince the plaintiff” that the defendant’s position as to the defects in her claim, alleged by the defendant, were not accepted, and when the plaintiff went forward with its motion to compel refusals and undertakings. That sounds retaliatory to me.

[15] The defendant further claims that there was no amount claimed or recovered by the plaintiff in the motion – while literally true, the plaintiff was successful in being allowed to continue her claim for over $600,000. The defendant also claims that the motion was not complex. I note that it took 4 ½ hours to argue quite extensive materials and at least, according to my ruling, was not as simple as the defendant would have me believe.

[16] The defendant submits that the plaintiff’s offer to settle dated November 16th contained no element of compromise. I think there to be some merit to that submission. The offer was in effect to give up the right to seek costs on a substantial indemnity scale. As the award of costs on that scale is very much the exception, rather than the rule, the element of compromise is diminished.

[17] The defendant also repeats his position that it would have been more reasonable to stay the claims for an accounting until after the issue of the validity of the 2008 Will had been determined. As indicated in my ruling, in my opinion the evidence of the impugned financial transactions would have been admissible on the issues of testamentary capacity and undue influence and hence on the issue of the validity of the Will in any event, so the defence submission would not be cost effective.

[18] In terms of the offer to settle dated December 8, 2016, the defendant’s position is that it was not served on counsel of record for the defendant. It was served on the agent hired by the plaintiff to argue this motion on her behalf, and that counsel had been dealing with plaintiff’s counsel so I see no merit in that submission. The defendant also contends that the December 8th offer could not be accepted because an application for leave to appeal my decision had been commenced. I don’t understand that service of the leave to appeal application prevents consideration and acceptance of an offer to settle costs arising from the impugned decision.

[19] The submissions of the defendant are silent with respect to the amount claimed, the time spent and the disbursements claimed by the plaintiff. The bill of costs of the defendant, included in his submissions, show that more senior counsel, less senior counsel, a law clerk and a law student all spent more time on this motion than did counsel for the plaintiff.

Discussion

[20] I take into account that the plaintiff at least made some offer to settle, although without much element of compromise, whereas the defendant made no effort.

[21] I take into account the impact of rule 21.02.

[22] The plaintiff succeeded, her financial interest was significant and hence was the importance of the motion outcome.

[23] Having regard to the factors identified in rule 57, I fix the costs in the amount of $9,000 inclusive of fees, disbursements and applicable HST, payable by the defendant to the plaintiff within 30 days.

C. Stephen Glithero J.

Date: February 6, 2017