CITATION: Kirby v. Grolmus, 2017 ONSC 937

COURT FILE NO.: 13-43587

DATE: 2017-02-07

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 – UNDERTAKINGS AND REFUSALS MOTION

[1] This motion by the plaintiff and a motion to strike pleadings by the defendant came before me on November 24, 2016. As counsel could not agree on which motion should proceed first, I ruled that it would be the motion to strike as the outcome of that motion would impact on this motion. Both motions could not be heard the same day because the motion to strike lasted 4 ½ hours. I reserved on the motion to strike and directed counsel to obtain a new date for the hearing of this motion from the trial coordinator.

[2] My written reasons dismissing the motion to strike were released November 30, 2016. Counsel had arranged to have this motion heard on December 1, 2016. That is perhaps unfortunate in that counsel only had my ruling for a day before the day they picked for the hearing of this refusals/undertakings motion.

[3] As my ruling on the motion to strike was in the plaintiff’s favour, and as I held therein that much of the disputed evidence would be admissible at trial in any event, as being potentially probative of or relevant to the state of mind of the testator, in terms of improvident questionable financial transactions, it may well have been reasonable for the defendant to consent to the plaintiff’s motion to compel in respect of many of the undertakings and refusals without prejudice to its appeal rights, as the defendant has applied for leave to appeal my ruling to the Divisional Court. In fact, as the motion unfolded, many of the undertakings and refusals regarding accounting issues and standing were agreed to during argument.

The Plaintiff’s Position

[4] The plaintiff was almost entirely successful on the undertakings and refusal motion which was brought in respect of nearly 90 items. Two of the refusals were held by me to be in respect of irrelevant matters.

[5] The plaintiff claims that the defendant’s opposition to the motion was unreasonable and that the defendant had no basis to have refused to answer so many items.

[6] The plaintiff seeks costs on a substantial indemnity basis in the amount of $8,285.27, together with an additional $992.50 for fees in respect of costs submissions. The total is $9,277.77.

[7] The plaintiff also relies on the costs submissions on this motion of the two offers to settle dated November 16th and December 9, 2016, both of which were referred to in my reasons on the motion to strike costs issue. In respect of this motion, the November 16th offer was to accept costs on a partial indemnity scale. In the December 9th offer, the proposal was to accept costs in the amount of 75% of the full indemnity amount, amounting to $6,618.14 and 100% of disbursements in the amount of $343.51, for a total of $ 6,961.65.

The Defendant’s Position

[8] The defendant’s position is that the refusal motion was not necessary and contends that the defendant was never put on notice of the pending motion and was never provided any opportunity to try and settle the alleged deficiencies. I disagree with this as the correspondence contained in the plaintiff’s costs submissions show many requests to have the defendant comply with the undertakings and answer the refusals and provide to the defendant a chart of the many unfulfilled items. As to the allegation that the defendant was never provided with an opportunity to settle the alleged deficiencies, it seems to me counsel ought to learn that communication is a two-way street. There was nothing to stop the defendant from answering the plaintiff’s requests for fulfillment of these items much more promptly, or to offer some alternative or compromise solution.

[9] Counsel for the defendant also repeats her submissions that the items that were the subject matter of the motion were not germane to the issue of the validity of the 2008 Will, which the defence maintains was the only issue for trial. I disagreed in my ruling, holding that the evidence as to the financial transactions was relevant to the testamentary capacity of the testator.

[10] The defendant also contends that having to answer the refusals “predetermines the plaintiff’s claim in her favour”. I don’t understand that submission – being required to provide the information provides the plaintiff with potential evidence with which she may or may not be able to make out her claim. The defence submission that it “predetermines the plaintiff’s claim in her favour” is perhaps an inadvertent slip, indicating as it appears to, that such evidence will substantiate the plaintiff’s claim.

[11] I reject the defendant’s contention that the plaintiff did not give the defendant adequate time or notice as the exchanged correspondence clearly shows in my view, that it was the plaintiff attempting to push these matters along.

[12] The defendant asks that costs of this motion be left to the trial judge, or there should be no order as to costs. I repeat my observations in the ruling as to costs on the motion to strike.

[13] The costs submissions of the defendant essentially repeat most of the positions advanced in respect of the costs issue on the motion to strike and my comments would be the same.

[14] The defendant’s costs motions do not challenge the amount of time spent, the hourly rates charged, or the disbursements claimed by the plaintiff. Rather, the defence submissions set out their own hourly rates. The bill of costs submitted on behalf of the defendant is substantially higher than that of the claim of the plaintiff, as it is in the amount of $17,797.50 plus HST, plus disbursements.

Discussion

[15] I take into account that the plaintiff at least attempted to resolve matters by making offers to settle, which were almost wholly in the plaintiff’s favour, and contained little element of compromise. But at least they had some potential to avoid some measure of costs, both as to the motion and as to the costs submissions. The defendant did not respond or make any offers of his own.

[16] In my opinion the motion turned out to be relatively straightforward, given that the outcome of so many of the items contested was in effect determined by my ruling on the motion to strike. But the motion was important to the plaintiff and related to a sizeable amount of money in terms of her claim.

[17] Obviously the amount claimed by the plaintiff for costs is within what an unsuccessful party could reasonably expect to pay given that the defence claims a higher amount than did the plaintiff.

[18] I take into account the efforts of Mr. Little to colour code the various items into categories with common elements which contributed materially to the effective submissions and disposition of the motion.

[19] I take into account that many of the costs submissions on this motion mirrored those on the motion to strike, and hence ought not to be compensated twice.

[20] The plaintiff’s bill of costs shows total fees up to December 9, 2016, on a partial indemnity scale, in the amount of $ 5,685.31, and on a substantial indemnity scale in the amount of $ 6,928.11. I conclude that the costs figures submitted for time spent and hourly rates are reasonable. I fix costs for fees up to December 9th in the amount of $6,000, plus additional fees in respect of the cost submissions fixed in the amount of $600, for a fees total of $ 6,600. To this I add disbursements in the amount of $343.51, plus applicable HST on both fees and disbursements. All of which is payable by the defendant within 30 days.

C.S. Glithero J.

Date: February 7, 2017