Court File and Parties

Barrie Court File No.: CV-19-2179 Date: 20200505 Superior Court of Justice - Ontario

Re: Christina Vivian, Plaintiff And: Jacqueline Glorinna Horne, Defendant

Before: The Hon. Madam Justice A.A. Casullo

Counsel: Ben Ulster, for the Plaintiff Tracey Rynard, for the Defendant

Heard: In writing

Costs Endorsement

[1] On February 25, 2020, I heard the plaintiff’s motion for disclosure. After recessing to draft my endorsement, I gave oral reasons and dismissed the motion. I awarded costs to the defendant.

[2] On February 28, 2020, I received a letter from Mr. Ulster, through my judicial assistant, respecting the costs portion of my endorsement. Ms. Rynard was copied on Mr. Ulster’s letter. Mr. Ulster recalled that after oral arguments, but before any substantive decision on the issues, counsel for the defendant submitted a Bill of Costs that I immediately brought back to chambers when I recessed to prepare my decision.

[3] Mr. Ulster’s concerns were two-fold: first, he was not provided with Ms. Rynard’s Bill of Costs, and second, he was not provided an opportunity to address the court regarding the quantum of costs sought by the defendant.

[4] Mr. Ulster requested an opportunity to make costs submissions or, in the alternative, requested that I reconsider the costs portion of my endorsement.

[5] While I recalled hearing the matter, I did not have an independent recollection of what transpired in respect of costs. I reviewed the oral recording of the hearing to refresh my memory. Mr. Ulster made his submissions first. Ms. Rynard gave her responding submissions, at the end of which she handed up her Bill of Costs. It appears that during Mr. Ulster’s reply submissions, I neglected to ask whether he had a Bill of Costs to hand up to the court.

[6] By letter dated March 2, 2020, I replied to both Mr. Ulster and Ms. Rynard, confirming I was prepared to hear Mr. Ulster’s submissions on costs, and asked that counsel speak with the trial co-ordinator to obtain a date to appear before me.

[7] Ms. Rynard replied to Mr. Ulster’s letter on March 6, 2020, expressing surprise at his request. In her view, this was Mr. Ulster’s motion, and his motion material included a request for costs. Thus, it was incumbent upon him to provide a Bill of Costs and be prepared to argue the costs of the motion. Ms. Rynard submits that it was not incumbent on the court to remind counsel of their obligations in this regard.

[8] If I were to entertain submissions, Ms. Rynard asked that these be made in writing, and that the defendant be afforded an opportunity to reply. Upon consideration, I agreed that written submissions would be appropriate, and advised counsel of this in a letter dated March 13, 2020.

[9] Counsel thereafter confirmed that the order has not yet been taken out.

[10] That is the background to where I now find myself – reviewing submissions on costs and potentially reconsidering my reasons.

[11] At no point did counsel address whether I had the jurisdiction to entertain Mr. Ulster’s request. I chose not ask counsel for submissions on this issue. This is a modest estate, and apart from the costs of the litigation to-date to both parties, their lawyers have expended further time and expense drafting written submissions.

[12] After reviewing the recent decisions of Pichelli v. Kagalj, 2019 ONSC 1371, and MTCC No. 985 v. Cheney, 2016 ONSC 64, I am satisfied that judges have a residual discretion to change their decision, in certain circumstances.

[13] Both Pichelli and MTCC relied on the Court of Appeal’s decision in Montague v. Bank of Nova Scotia, [2004] O.J. No. 13, in which that Court held (at para. 34):

I cannot agree that the rule prohibits the trial judge from changing her order. There can be no doubt that until judgment is formally entered in the court record, the judge has a very broad discretion to change it.

[14] In Pichelli, Justice LeMay also relied on Brown (Trustee of) v. Municipal Property Assessment Corp., Region 14, 2014 ONSC 7137 (Div. Ct.), where the Divisional Court recognized the possibility that a judge could change her order, albeit confirming that this right is not absolute (at para. 20):

I acknowledge there is a fairly broad power, in a judge, to change an order after it has been announced but before it has been signed and entered. Any such change should only be made, however, if it is either technical (e.g. to correct an arithmetic error) or it is necessary to avoid a miscarriage of justice: Clayton v. British American Solutions Ltd., [1935] 1 D.L.R. 432 (B.C.C.A.) at pp. 440-441. Even then, if a change is to be made, it must be fully explained to ensure that the authority is not abused.

[15] Is this an appropriate circumstance in which I can consider changing my decision? The audio recording confirms that Mr. Ulster was not given a copy of Ms. Rynard’s Bill of Costs. This should have been done by Ms. Rynard when she handed the court a copy, however, it was ultimately incumbent upon me to ensure Mr. Ulster received a copy.

[16] During argument, Ms. Rynard explained why her client’s costs were so high. At the conclusion of her submissions, she handed up her Bill of Costs. During his reply submissions, Mr. Ulster did not advise he had not received a copy of the defendant’s Bill of Costs, nor did he hand up the plaintiff’s Bill of Costs.

[17] Before recessing to draft my endorsement, I asked if any offers to settle had been exchanged, and was advised that they had not. Once court reconvened fifteen minutes later, I gave my oral endorsement, including my decision on costs. I then asked counsel whether I could be of any further assistance, and no additional issues were raised.

[18] I find it would be a miscarriage of justice if I were not to consider Mr. Ulster’s costs submissions. Much like Justice Mew in MTCC (at para. 7):

[…] I am simply being asked to enable the parties to be heard on an issue when they would ordinarily have had the opportunity to do. The fact that they did not was due to an error of process on my part. I perceive no real prejudice to the Owners arising from the request that has been made, other than the possibility of a different disposition on the issue of costs.

[19] Whether or not Mr. Ulster should have broached the matter of costs on his own, the onus was on me to ensure he had an equal opportunity to speak to the issue. I did not do so, and I am satisfied I have the jurisdiction to reconsider my decision in respect of the costs award.

Discussion

[20] A bit of background will be useful. This is an estates matter. The plaintiff is the deceased’s daughter, and the defendant, his common-law spouse of a number of years. The deceased died intestate. The only asset of any significance is the home the deceased held in joint tenancy with the defendant, title in which passed to the defendant upon the deceased’s death. The plaintiff alleges that her father lacked the capacity to transfer the house into joint tenancy one year prior to his death, and this allegation forms the basis for the estate litigation.

[21] The plaintiff filed an Application for a Certificate of Appointment of Estate Trustee without a Will dated December 2, 2019. The defendant filed a Notice of Objection on December 23, 2019. In the normal course, the applicant would have filed a Motion for Directions to proceed with the contentious matters, including discovery. This has not yet occurred. Instead, in a parallel proceeding, the plaintiff filed a Statement of Action, pursuant to which the within motion for disclosure was brought.

[22] In his written submissions, Mr. Ulster states that the complexity of the issues argued on the motion was relatively low. The plaintiff was not seeking substantive relief; the motion was limited to disclosure of documents from various professionals associated with the deceased, as well as obtaining a Certificate of Pending Litigation against title to the family residence.

[23] Mr. Ulster appended his Bill of Costs with his written submissions, which totalled just over $3,400, excluding the time required to speak to the matter in court. Acknowledging that the defendant was entitled to costs given her success, he suggested an award in the vicinity of $2,850 would be more realistic, in light of the limited focus of the motion.

[24] In her written submission, Ms. Rynard agreed that the complexity of the issue argued was only moderately complex. However, the issues addressed in the defendant’s materials were extensive due to the nature of the plaintiff’s course of legal action: namely, the decision to file an application, then issue the Statement of Action and advance this motion for disclosure. The defendant submits the Statement of Action is vexatious, and intended to circumvent the minimum threshold requirement for disclosure in the application process.

[25] The plaintiff’s decision to launch parallel proceedings required the defendant to prepare a factum explaining why the two separate matters should have only been one proceeding, and to outline the caselaw regarding the minimum evidence threshold. According to Ms. Rynard, lengthy preparation was necessary in order to explain to the seriousness of what she deems to be inappropriate procedural issues.

[26] At the hearing of the motion, I agreed with the defendant that the appropriate action was to maintain course with the application, wherein the plaintiff could obtain the relief she sought. I did not determine that the plaintiff’s actions were vexatious, hence my decision regarding costs: the defendant sought full indemnity recovery of $14,569.16, and I awarded partial indemnity costs in the amount of $8,741.50.

[27] I am not persuaded that the costs award should be varied. When I reviewed the defendant’s Bill of Costs on February 25, 2020, I did not regard the time and effort expended on behalf of the defendant as grossly disproportionate to the issues before the court. The defendant was wholly successful in defending the motion, but I found no grounds upon which to award more than partial indemnity costs. This reconsideration has not altered that decision.

[28] There will be no costs in respect of this endorsement.

[29] I would like to thank counsel for their time and effort in addressing an issue that arose entirely through my inadvertence.

CASULLO J. Date: May 5, 2020