Court File and Parties

COURT FILE NO.: CV-17-25151(Windsor) DATE: 2019-08-26 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Cheri Hernandez, Applicant AND: Norman Hernandez, Anna Hernandez, Barbara Taylor, and the Office of the Public Guardian & Trustee, Respondents

BEFORE: Justice R. Raikes

COUNSEL: Nour Jomaa, Counsel for the Applicant Anthony R. Leardi, Counsel for the Respondents

HEARD: In writing

Costs ENDORSEMENT

[1] This cost endorsement arises from my decision released July 3, 2019 (2019 ONSC 4067).

[2] The Applicant sought an order terminating the authority of her brother, Norman Hernandez, to act as his mother’s power of attorney for personal care, declaring her mother incapable, and appointing the Applicant to be the guardian of personal care for her mother. She was unsuccessful.

[3] The Respondent, Norman Hernandez, seeks costs for the application on a full indemnity basis payable by the Applicant. Alternatively, he seeks costs on a full indemnity basis payable in part by the Applicant and in part from the assets of the estate of Anna Hernandez. He seeks costs of $69,485.88 inclusive of disbursements and HST.

[4] The Respondent relies, in part, on an offer to settle that also addressed the dispute involving the power of attorney for property which was not before me.

[5] The Applicant submits that each party should bear their own costs or, in the alternative, costs should be limited to partial indemnity and be payable out of the estate of Anna Hernandez.

[6] As part of her cost submissions, she asserts that I was misled by the Respondent’s factum, misread the evidence cited and therefore came to the wrong conclusion. In essence, costs should not follow because my decision is wrong. That is an interesting approach and one best advanced on appeal if need be.

[7] She further asks that I deny costs because the Respondent swore affidavits that made inflammatory and baseless allegations against the Applicant. I note that two of the allegations relate to the management of Anna’s monies which, as I indicated, was not before me. As for the other allegations, the Applicant made several unflattering allegations against the Respondent in her affidavits that were not borne out. This was bitterly contested litigation between siblings.

[8] The Respondent was the successful party. I see no reason to deprive him of his costs. The usual rule that costs follow the event applies.

[9] I decline the Respondent’s request for full indemnity costs. The offer to settle served on the Applicant combined the resolution of the disputes concerning both powers of attorney. The terms dealing with the power of attorney for personal care were not severable from those dealing with the power of attorney for property. It was a package offer. He did not better his offer in the result.

[10] The usual rule is that costs are awarded on a partial indemnity scale unless there is conduct which warrants the court’s approbation by awarding a higher scale. The Respondent points to the number of changes of counsel and the effect that had on the schedule for cross-examination. He also points to the motion brought at the commencement of the hearing to strike numerous paragraphs in various affidavits filed by the Respondent. Her own affidavit evidence contained similar defects but there was no reciprocal motion.

[11] I do not agree that the motion to strike paragraphs or parts of paragraphs was improper. That motion took much of the first day. The Applicant was successful on some but not all of the objections made. I have taken that success into account in fixing the quantum of costs payable.

[12] This was a three day hearing in which viva voce evidence was adduced and oral submissions made. Counsel were well-prepared on both sides. No quarter was given. The issues were very important to the parties as reflected in the many affidavits filed, the detailed submissions made and the thoroughness of counsel. Prior to the hearing, cross-examinations of several witnesses were conducted and the transcripts of same formed part of the material on the application.

[13] The legal issues raised were of moderate complexity. Much of the law in the area is well-settled.

[14] Mr. Leardi was called to the Bar in 1998. He dockets 194.1 hours according to the costs outline submitted. The applicant submits that the dockets provided are insufficient in detail to permit me to determine a fair costs award. I disagree.

[15] The Bill of Costs includes time spent at case and settlement conferences. The Applicant contends that absent an endorsement reserving the cost of same to the hearings judge, those costs are not recoverable. I disagree. This is civil litigation. The costs of the application are not confined to the preparation for and attendance to argue the application. These are reasonable steps necessary to the advancement of the litigation, much like a civil pre-trial conference. I do agree that the dockets include motion time which was not reserved to me and, as such, are not before me and are not recoverable.

[16] Mr. Leardi’s hourly rate is $295. That rate is appropriate to his experience at the Bar and the skill shown in the application.

[17] The Applicant did not file a Bill of Costs nor disclose the amount that she has paid for the application. That is often done to provide a comparator and to assist in ascertaining the reasonable expectations of the parties.

[18] It is inconceivable that the parties were not aware that they were exposed to an adverse cost award if unsuccessful. They had to be aware that those costs could be substantial given the many affidavits filed by each, the cross-examinations of witnesses under oath, the number of days spent at the hearing and the written submissions made.

[19] I fix the costs on a partial indemnity scale in the amount of $37,500 inclusive of disbursements and HST.

[20] Those costs are payable by the Applicant personally. The Court of Appeal has made it abundantly clear that costs in estate matters are to be paid personally by the litigants, not the estate except in exceptional cases: Tierney (Estate) v. Brown, 2015 ONSC 6949. This is not an exceptional case.

[21] I appreciate that this litigation concerns a power of attorney, not an estate per se; however, that distinction does not affect the outcome.

Justice R. Raikes

Date: August 26, 2019