Costs Endorsement

COURT FILE NO.: CV-17-5515 DATE: 2018 12 07 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Wendy Crane, Applicant - and - Lesly Metzger, and, Nigel Cason, and The Public Guardian And Trustee, Respondents

BEFORE: Lemon J.

COUNSEL: Wendy Crane, In Person Shawn Campbell, Counsel for the Respondents, Lesly Metzger and Nigel Cason.

HEARD: In Writing

The Issue

[1] I heard argument on this matter on August 23, 2018. At the end of argument, I advised the parties that Ms. Crane’s application was dismissed for reasons to follow. Those reasons are dated September 13, 2018. At the end of those reasons, I requested costs submissions. Mr. Cason served his submissions on September 27, 2018. There have been no submissions filed by Ms. Crane. For unexplained reasons, Mr. Cason’s submissions did not come to my attention until December 6, 2018.

[2] Mr. Cason seeks costs of $30,059.67. For the following reasons, that amount is fixed to be paid by Ms. Crane within 30 days.

Authorities

[3] Rule 57.01 of our Rules of Civil Procedure sets out the factors that the court may consider when determining costs. The relevant factors that I should consider here are:

(a) the result in the proceeding,

(b) the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(c) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed

(d) the amount claimed and the amount recovered in the proceeding

(e) the complexity of the proceeding

(f) the importance of the issues;

(g) the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding.

[4] Modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan, (1999), 46 O.R. (3d) 330, at para. 22.

[5] Costs awards, at the end of the day, should reflect “what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties”: see Boucher v. Public Accountants Council for the Province of Ontario, (2004), 71 O.R. (3d) 291, at para. 24.

Analysis

[6] I agree with Mr. Cason’s counsel that Mr. Cason has been “completely and unequivocally” successful. He is presumed to be entitled to his costs.

[7] In my analysis, I said:

Looking only at the materials filed by Ms. Crane, it is clear that she is prepared to ignore the power of attorney, the truth and the law to get her way. That fundamentally destroys her evidence with respect to the balance of her case.

[8] Accordingly, Ms. Crane has been unreasonable throughout. The costs as ordered should reflect that.

[9] Ms. Crane alleged a host of detailed complaints against Mr. Cason that struck at his integrity. Those complaints needed to be responded to in an equally detailed fashion. This was very important litigation to both parties.

[10] Ms. Crane had counsel for a time to prepare the application; she would be aware of the likely costs if she were unsuccessful.

[11] Mr. Cason’s submissions outline a number of unnecessary delays caused by Ms. Crane or her counsel. Mr. Cason should not have to pay for those delays and costs thrown away.

[12] I have reviewed the bill of costs that has been submitted. The time required and the hourly rate appear appropriate. I note that, where possible, a less expensive law clerk has carried out work. The disbursements appear low.

[13] In the result, Ms. Crane shall pay costs to Mr. Cason in the amount of $30,059.67 within 30 days.

Justice G.D. Lemon

Date: December 7, 2018