The Estate of George Kargakos v. Kargakos et al., 2020 ONSC 8204
COURT FILE NO.: 16-68991
DATE: 20200106
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DEMITRIOUS KARGAKOS, Plaintiff
AND
THE ESTATE OF GEORGE KARGAKOS and THOMAS STAMOULIS, Defendants
AND BETWEEN
THE ESTATE OF GEORGE KARGAKOS, Plaintiff by Counterclaim (Moving Party)
AND
DEMITRIOUS KARGAKOS, CHRISTINA KARGAKOS, CANADIAN IMPERIAL BANK OF COMMERCE and PAUL SOUSA, Defendants by Counterclaim (Responding Party)
BEFORE: Madam Justice Heather J. Williams
COUNSEL: Gigi Costanzo, Counsel for the Plaintiff/Defendants by Counterclaim
John H. Yach, Counsel for the Defendants/Plaintiff by Counterclaim
HEARD: In writing
costs ENDORSEMENT
[1] The Estate of George Kargakos was successful in its motion for possession of a jointly-held property and related relief. The relief initially sought on the motion had included orders for production, but the production-related issues were resolved before the hearing.
[2] The estate is asking for costs on a partial indemnity scale in the all-inclusive amount of $38,607.62, to be payable forthwith.
[3] The respondent, Demitrious Kargakos, argues: (1) that the costs of the motion should be reserved to be decided by the trial judge; (2) alternatively, that the estate should be awarded no costs of the motion; (3) that I should take into account an offer Mr. Kargakos made prior to the hearing of the motion to jointly repair and maintain the property; (4) that the time spent by the estate’s lawyer was excessive and that all-inclusive costs of $24,305.12 would be fair; and (5) that any costs awarded should be payable over 12 months.
[4] In response to Mr. Kargakos’s arguments:
(1) Should costs be reserved to be decided by the trial judge?
[5] Rule 57.03(1) of the Rules of Civil Procedure provides for costs of a contested motion to be fixed and ordered payable within 30 days, unless the court is satisfied that a different order would be more just.
[6] I do not consider this to be a situation in which it would be appropriate to reserve costs to the trial judge. The issue on the motion was narrow and, unlike the cases relied upon by Mr. Kargakos,[^1] I see no potential for injustice if Mr. Kargakos is ordered to pay the costs of the motion now and goes on to be successful at trial. Further, as the judge who heard and decided the motion, I consider myself to be in a better position to decide the issue of the costs of the motion than the trial judge is likely to be.
(2) Should the moving party be awarded no costs?
[7] Mr. Kargakos argued that he had no choice but to respond to the estate’s motion in order to protect his trust interest in the property the estate was seeking to sell. He says that in these unique circumstances, I should consider awarding no costs to the estate.
[8] I am not convinced that the circumstances are unique. I also see no merit in Mr. Kargakos’s argument; I found that the property was likely to deteriorate and lose value if it was not sold and that damages would adequately compensate Mr. Kargakos if he is successful at trial.
(3) Should Mr. Kargakos’s offer to jointly repair and maintain the property affect the costs awarded?
[9] Mr. Kargakos’s offer was to do no more than what the estate reasonably could have expected him, as a co-owner of the property, to have done throughout. The offer appeared to be an effort on the part of Mr. Kargakos to avoid the outcome of the motion; it was not a compromise on his part.
[10] I do not consider the offer to be relevant to the costs of the motion.
(4) Was the time spent by the estate’s lawyer excessive and what award of costs would be fair?
[11] I place little weight on Mr. Kargakos’s argument that the estate’s lawyer logged too many hours in preparing his motion materials, given that the estate was the moving party and that, prior to the hearing of the motion, the estate’s lawyer out-docketed Mr. Kargakos’s lawyer by fewer than five hours.
[12] Rule 57.01 of the Rules of Civil Procedure lists the factors a court may take into account in exercising its discretion to award costs under s. 131 of the Courts of Justice Act. In considering these factors, I make particular note of the following:
The estate’s lawyer’s hourly rate was considerably higher than that of Mr. Kargakos’s lawyer. The estate’s lawyer was called to the bar of Ontario in 1993 and charged $500.00/hour. The estate’s lawyer is seeking a partial indemnity rate of $300.00. Mr. Kargakos’s lawyer was called to the bar in 1998 and charged $300.00/hour. Mr. Kargakos’s lawyer’s bill of costs used a partial indemnity rate of $180.00.
The partial indemnity fees requested by the estate were $32,250.00. The partial indemnity fees of Mr. Kargakos’s lawyers were $17,064.00.
Neither lawyer delegated work to professionals charging a lower hourly rate.
The estate’s bill of costs included some time for legal research, reviewing cross-examination transcripts and preparing a list of undertakings, work that might have been done by a professional charging less than $500.00/hour.
The estate was entirely successful on the motion.
The issues on the motion were not legally complex.
The issues were important to the estate because of concerns that an estate asset was losing value; Mr. Kargakos said that the issues were of “critical” importance to him because he believes he has a trust interest in the property.
[13] In Boucher v. Public Accountants Council for the Province of Ontario, (2004) 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), the Court of Appeal said that costs “should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.”
[14] In all of the circumstances, I consider $25,000.00 in fees to represent a fair and reasonable amount for Mr. Kargakos to pay.
[15] The estate shall also have HST on these fees of $3,250.00 plus its requested disbursements plus HST in the amount of $2,165.12.
[16] The total fees, disbursements and HST I order Mr. Kargakos to pay to the estate is $30,415.12.
(5) Should the costs be payable over a 12-month period?
[17] In light of the not insignificant amount of this order and Mr. Kargakos’s plea of hardship, I am prepared to deviate from the 30-day period for payment in Rule 57.03(1). Mr. Kargakos shall have 12 months to pay the costs, provided that one-quarter of the amount owing is paid to the estate each quarter.
[18] Mr. Kargakos shall pay the estate instalments of $7,603.78 on or before the three-month, six-month, nine-month and 12-month anniversary of the date of this order. Should any of these payments not be made by the stipulated deadline, the entire outstanding balance of the $30,415.12 shall be payable immediately.
Date: January 6, 2020
The Estate of George Kargakos v. Demitrious Kargakos et al., 2020 ONSC 8204
COURT FILE NO.: 16-68991
DATE: 20200106
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: DEMITRIOUS KARGAKOS, Plaintiff
AND
THE ESTATE OF GEORGE KARGAKOS and THOMAS STAMOULIS, Defendants
AND BETWEEN
THE ESTATE OF GEORGE KARGAKOS, Plaintiff by Counterclaim (Moving Party)
AND
DEMITRIOUS KARGAKOS, CHRISTINA KARGAKOS, CANADIAN IMPERIAL BANK OF COMMERCE and PAUL SOUSA, Defendants by Counterclaim
BEFORE: Madam Justice H.J. Williams
COUNSEL: Gigi Costanzo, Counsel for the Plaintiff/Defendants by Counterclaim
John H. Yach, Counsel for the Defendants/Plaintiff by Counterclaim
costs ENDORSEMENT
Madam Justice H.J. Williams
Released: January 6, 2020
[^1]: Quizno’s Canada Restaurant Corp. v. 1450987 Ontario Corp., 31599 (ON SC); The Trustees of the Drywall Acoustic Lathing and Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2017 ONSC 3369.