Court File and Parties
OTTAWA COURT FILE NO.: 16-70191
DATE: 2018/05/23
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Garry Cecil Edgar O’Brien, Applicant
AND
Roy David McGilvray, Respondent
BEFORE: Madam Justice R. Ryan Bell
COUNSEL: James Katz, Counsel for the Applicant
Roy David McGilvray, Self-represented
HEARD: In writing
ENDORSEMENT on costs
[1] In my decision of April 18, 2018, I determined that Mr. O’Brien, as the successful party on the application, is entitled to his costs. The parties have not agreed on the quantum of costs. Mr. McGilvray has provided me with brief submissions for “financial consideration.” Mr. O’Brien relies on the costs outline submitted at the conclusion of the hearing.
[2] Mr. O’Brien seeks costs on a partial indemnity basis in the amount of $12,459.98, inclusive of HST and disbursements. Mr. McGilvray submits that he will suffer financially from the sale of 1866 O’Toole Road, Cumberland. He takes the position that he should not have to “contribute” to the sale of the property, which I ordered under section 3 of the Partition Act, R.S.O. 1990, c. P.4. He also takes the position that any sale should occur only if the offer meets or exceeds the appraised value of the property. In a written communication received by me yesterday, Mr. McGilvray objects to “being responsible for any further legal costs of Mr. O’Brien.” It does not appear that Mr. McGilvray provided a copy of his most recent email correspondence to counsel for Mr. O’Brien. In any event, in this endorsement, I am addressing only the quantum of Mr. O’Brien’s costs in connection with the application.
[3] In my April 18, 2018 decision, I directed a reference to the Master with respect to the conduct of the sale of the property. The Master, in her discretion, will determine all issues concerning the sale of the property, including the listing price, an accounting of the net proceeds and the disbursement of net proceeds. The submissions advanced by Mr. McGilvray are not in relation to the costs of the application.
[4] In fixing costs, the objective is to fix an amount that is fair and reasonable, having regard to the range of factors in Rule 57.01, for the unsuccessful party to pay, rather than an amount fixed by the successful party’s actual costs (Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.)).
[5] In my view, this was not a complex matter; however, the issue of whether the property should be sold or partitioned was clearly a matter of great importance to both parties. From the outset of their relationship as tenants in common, Mr. O’Brien and Mr. McGilvray have been unable to cooperate. In my decision, I noted Mr. McGilvray’s hostility to Mr. O’Brien. I accept that given the strained relationship between the parties and the value of the property (appraised value of $2,400,000 as of June 2017), the application was very important to Mr. O’Brien. In responding to the application and arguing in favour of partition, Mr. McGilvray submitted that a sale of the property would be tantamount to eviction and that Mr. O’Brien’s presentation exemplified malice. While I concluded that Mr. McGilvray’s assertions in this regard were unfounded, his assertions demonstrate the importance of the matter to him.
[6] The costs outline on behalf of Mr. O’Brien discloses that his lawyers and a student-at-law spent a total of 15.7 hours (approximately $2,650) in drafting the notice of application and affidavit in support. In my view, this amount of time is high given the nature of the affidavit and the brevity of Mr. O’Brien’s affidavit. I conclude that there was some overlap in the work done by counsel and by the student-at-law. I have determined that for the drafting of the notice of application and supporting affidavit, an amount of $1760 in legal fees is appropriate.
[7] Mr. Katz was the only lawyer who spent time in relation to the other steps in this proceeding. I have determined that the amount of time spent by Mr. Katz on these steps and the partial indemnity rate claimed are appropriate, having regard to Mr. Katz’s experience.
[8] For these reasons, I have determined that it is fair and reasonable to fix the costs payable by Mr. McGilvray to Mr. O’Brien in the amount of $11,454.28, inclusive of disbursements and HST. As stated in my April 18, 2018 decision, these costs are to be paid from Mr. McGilvray’s share of the net proceeds of sale. Pursuant to section 129(1) of the Courts of Justice Act, the award of costs bears interest at the post-judgment interest rate of 3 per cent, calculated from the date of this order. Mr. McGilvray may elect to pay the costs prior to the sale of the property, in which case interest will accrue until such time as the costs are paid.
Madam Justice R. Ryan Bell
Date: May 23, 2018
OTTAWA COURT FILE NO.: 16-70191
DATE: 2018/05/23
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Garry Cecil Edgar O’Brien, Applicant
AND
Roy David McGilvray, Respondent
BEFORE: Madam Justice R. Ryan Bell
COUNSEL: James Katz, Counsel for the Applicant
Roy David McGilvray, Self-represented
ENDORSEMENT on costs
RYAN BELL J.
Released: May 23, 2018