Court File and Parties
COURT FILE NO.: CV-19-41 DATE: February 10, 2020
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
ALEX VAN DELEN Applicant Danielle Bertin, Counsel for the Applicant
- and -
DEBORAH ANN HUTCHINGS Respondent Jesse R. Dostal, Counsel for the Respondent
HEARD: In writing
Endorsement
The Honourable Mr. Justice H. S. Arrell
INTRODUCTION:
[1] This was an estate matter which was ultimately resolved subject to the issue of costs.
FACTS:
[2] The applicant was married to Ms. Leblanc for approximately 30 years. She died on December 2nd, 2017. She had a child from a previous marriage who is the respondent, Deborah Ann Hutchings. There appears to be obvious animosity and distrust between the applicant and the respondent.
[3] Prior to the death of Ms. Leblanc, she and the applicant, although not legally separated, were involved in a family court dispute regarding Ms. Leblanc’s power of attorney. I assume the applicant and Ms. Leblanc were living separate and apart.
[4] The applicant alleges he was not informed by the respondent of his wife’s death until approximately 2 months later. I am also advised that the respondent listed herself as the executer on the death certificate of her mother, when she was not.
[5] The record would further indicate that Ms. Leblanc had a safety deposit box at the CIBC. The key to that safety deposit box was held by her granddaughter and co-power of attorney, Lisa Hutchings.
[6] In January of 2015 it is alleged that the applicant drilled the safety deposit box without the knowledge or consent of Ms. Leblanc or indeed her power of attorney. Ms. Leblanc and her first husband “listed a will” as part of the list of contents in the safety deposit box. The applicant states he removed nothing from the safety deposit box.
[7] The respondent filed a notice of objection when no will was forthcoming from the applicant. It turns out there was no valid will.
[8] The applicant wrote to respondent’s counsel on April 18th, 2018 and suggested the use of a third party to administer the estate. However, the respondent declined the person suggested as he had a disciplinary history with the Law Society. In turn, the respondent suggested a second party to administer the estate however that was not acceptable to that respondent, and a third person was suggested who was never agreed upon prior to an application being commenced.
[9] Examinations were held and ultimately there was a resolution of this matter by way of the respondent withdrawing her Notice of Objection.
[10] The applicant argues that he was successful as the notice of objection was withdrawn and he should be entitled to costs on a full indemnity basis as this is one of those situations where the losing party’s behaviour in the litigation is worthy of sanction.
[11] The respondent argues that no costs should be payable and that none of her conduct is worthy of sanction. In the alternative, if costs are awarded, the amount being claimed by the applicant of almost $10,000.00 is excessive.
ANALYSIS:
[12] The Court of Appeal has stated that the overwhelming principle for costs in exercising its discretion when awarding costs is reasonableness as was stated in Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 at para. 51-52.
[13] As noted by Armstrong, JA. in Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 the fixing of costs involves more than merely a calculation using the hours docketed and the costs grid. He further stated in paragraph 24 “In our view, the costs award 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] S. 131 of the Courts of Justice Act provides that “Costs of and incidental to a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.” R. 57.01 of the Rules of Civil Procedure annunciates the general factors to be considered by a court in exercising its discretion in relation to costs. I have considered those factors.
[15] I note that two offers were made by the applicant on December 23rd, 2019; one, that the respondent withdraw her notice of objection and pay $4000.00 in costs or; two, in the alternative, offer to let the court decide the amount payable as to costs. Those offers were not accepted.
[16] The respondent offered to withdraw her notice of objection but on the condition that there be no order as to costs.
[17] None of the offers attract R. 49 costs consequences. Although ultimately the parties did agree to the final proposal of the applicant on the day of the motion.
[18] I am not persuaded that the actions of the respondent were so outrageous as to attract substantial indemnity costs sanctions. I do however have some concern with her actions of not advising the applicant, a husband of 30 years, of his wife’s death or funeral arrangements. I also have some concern that she listed herself as the executer when in fact she was not. Finally, there is an allegation in the material that she has not advised the applicant of the whereabouts of the ashes of his wife.
[19] I also have some concerns about the applicant drilling into his wife’s safety deposit box obviously without her consent or knowledge. It appears to the court that neither party is without a degree of inappropriate behaviour.
[20] Finally, I find the amount claimed by the applicant to be excessive, especially the preparation for discoveries, given what was a relatively very simple matter that in fact should not have required discoveries. There is no doubt, however, that the applicant was the more successful party and is entitled to some costs. Under all the circumstances those costs should be reduced, especially when proportionality is considered, from what is being claimed by the applicant.
[21] Under all of the circumstances, I am assessing costs at $5000.00 inclusive of HST and disbursements as an appropriate and fair sum for the respondent to pay to the applicant.
Arrell, J. Released: February 10, 2020