Court File and Parties

COURT FILE NO.: CV-05-157/17

DATE: 20210409

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MONA (KELLY) BERNARDI, THERESA PUPULIN, and SHELDON SHOIB, in their capacity as Estate Trustees of the Estate of Helen Kates (also known as Helen Joan Kates), Applicants

• and -

NICOLA FATICA and FIONA PEACEY, Objectors

• and -

MARA KATES, MAX MUSYNSKI, AVRA KATES, BENJAMIN KATES, TOM PEACEY, EMMA PEACEY, MICHAEL FATICA, MATTHEW FATICA, DANIEL FATICA, SEBASTIAN DAY, TASMAN DAY, OLIVE PESTER, DOREEN SEARS, JOHN MEDINA, MAUREEN MEDINA, DR. SHOU CHUN CHEN, LAURA TARCEA, PAULINE VAN VEEN, DAVID COOKE, ADAM FALARDEAU, JOANNE KATES, LEON MUSYNSKI, AMNESTY INTERNATIONAL, ART GALLERY OF ONTARIO, THE ARTHRITIS SOCIETY, CANADIAN CANCER SOCIETY, CANADIAN RED CROSS, CANADIAN STAGE COMPANY, CANADIAN WILDLIFE FEDERATION, CNIB, DAILY BREAD FOOD BANK, DAVID SUZUKI FOUNDATION, THE FRIENDS OF ALGONQUIN PARK, THE CANADIAN GOLDEN RETRIEVER ADOPTION SERVICE INC., SICK KIDS FOUNDATION, HUNTSVILLE DISTRICT MEMORIAL HOSPITAL, MADD, ONTARIO WILDLIFE FOUNDATION, THE SALVATION ARMY, SECOND HARVEST, ST. MICHAEL'S HOSPITAL FOUNDATION, TARRAGON THEATRE, TORONTO SYMPHONY ORCHESTRA, UNICEF CANADA, UNITED WAY CENTRAIDE CANADA, TVO, METHSCHILDE OBERDORF, ALLAN TOFF, JUNE MASON, PHIL MASON, JEANINE LEE, MARIA REGO, EVA LIMAS, LUCILLE MACDONALD, ELY MARKSON, EDWARD MUNSAYAC, GEOFF BROWN, MICHELLE MILUSE MARAS, DAVE LAVENDER, SPENSER JAMES, VERN ZIEBARTH, EDWIN FILLIER, LILY FILLIER, SUE DEVOE, DARYL BREWER, ROBERT CHRISTIE, PEARU TAMM, JANET SHIELDS, LOUIS LADOUCETT AND ALEX DUPUIS and THE OFFICE OF THE CHILDREN'S LAWYER, Respondents

BEFORE: Mr. Justice Gans

COUNSEL: Paul Trudelle, for the Applicants, Mona (Kelly) Bernardi and Sheldon Shoib A. Sean Graham, for the Applicant, Theresa Pupulin David M. Goodman, for the Objectors Kimberly A. Whaley and Matthew Rendely, for the Respondents, Mara Kates, Max Muszynski, Avra Kates, and Benjamin Kates Richard J. Worsfold, for the Respondents, Charities

HEARD: In writing

ENDORSEMENT

[1] The fixing of costs after a trial is a bit of a mug’s game.[^1]

[2] The fixing of costs at the conclusion of estate litigation is made all the more difficult where, as in the instant case, although notionally there were multiple questions, in the final analysis there was but one live issue.

[3] In addition, in my view, while there were ‘joined’ or ‘designated’ multiple parties and hence multiple counsel, some of the parties did not require full-time separate representation, or at least representation after the commencement of trial. As will be discussed later, several (albeit successful) parties are now seeking to feast at the estate trough, excessively and unreasonably.

[4] In the instant decision, I am plagued with the task of determining the pot from which costs should be paid; whether the principle of ‘loser pays’ applies or whether the costs should be covered by the ‘blended costs’ principle; and, in any event, whether any or all of the costs claimants should recover some or a goodly portion of what is sought.

[5] Overarching all these thorny issues is the simple fact that the successful parties made offers to settle along the litigation road, including one ‘real’ money offer made approximately one month before trial. All were, apparently, summarily rejected by the Objectors for what I consider to be ill-conceived reasons. This is particularly so since the children of the Objectors[^2] were to benefit under the challenged codicils even if, as occurred, the Objectors (their mothers) lost; and which loss, because of an order for security for costs, means that their residual inheritance is subject to a claw-back.

The Pot

[6] The historical presumption that costs in estate litigation should be paid out of the assets of the estate has given way to a more nuanced approach to the issue. Courts at both trial and appellate levels now subject the litigation itself to greater scrutiny to determine whether there are policy considerations that warrant a departure from the ‘loser pays’ principle of civil litigation.

[7] In McDougald Estate v. Gooderham,[^3] Gillese J.A. confirmed that, absent policy considerations, such as whether challenging the will was reasonable in light of the circumstances surrounding its execution, the standard costs rules in civil litigation should apply. This principle was affirmed by Laskin J.A. in Orfus Estate v. Samuel & Bessie Orfus Family Foundation[^4] and most recently in Trezzi v. Trezzi.[^5]

[8] The most poignant expression of these concepts can be found in the decision of D. M. Brown J., as he then was, in Salter v. Salter Estate.[^6] I referenced this case in the Kates Estate reasons for judgment proper.[^7] I also underscored it in post-judgment costs discussions with counsel, but evidently, from the review of costs material subsequently provided, not forcefully enough.

[9] Applying these concepts to the matter now before me, it is my opinion that in the circumstances of this case a blended costs approach as was developed in Sawdon Estate v. Watch Tower Bible and Tract Society of Canada[^8] is appropriate. The tricky issue will be to choose the suitable date after which the Objectors should pay the freight, or some of it, and at what level.

[10] While the Objectors have apparently seen some of the light cast upon this issue and have not advanced a claim for indemnity for the costs they incurred in waging this battle, they do argue that the costs of the successful parties should be borne by the estate in their entirety.

[11] As indicated above, I am not prepared to accede to this suggestion even though, as I observed in the judgment, there were ‘suspicious circumstances’ surrounding the execution of the codicils in August 2011, modest as they might have been in retrospect.

[12] In the first place, such an order would do an injustice to the Kates Grandchildren[^9] and the Charities and would indirectly benefit the Day Grandchildren, since ordering costs out of the estate would mean that the first mentioned beneficiaries would absorb a disproportionate amount of the costs caused by some of the Day Grandchildren’s mothers. More importantly, such a disposition would essentially fly in the face of the current state of the law, since it would undercut the scrutiny that I must apply to the issue of costs.

[13] As indicated above, there were notionally two issues before the court at the commencement of trial: testamentary capacity and undue influence. While there might have been some life breathed into the former as a result of certain ‘dated’ medical evidence suggesting Helen Kates’s cognitive impairment, the latter issue was singularly devoid of any cogent supporting evidence and should have been abandoned early in the piece, or at least never proceeded with at trial. Put otherwise, the Objectors did not have, nor did they attempt to lead, anything remotely giving rise to support for these allegations, let alone evidence of sufficient magnitude to discharge the onus cast upon them.

[14] Insofar as the testamentary capacity issue was concerned, which occupied the overwhelming bulk of the trial time, the Objectors should have reassessed their position after the examinations for discovery of Barry Smith, which took place in early 2018, or immediately after the first mediation before the Hon. Susan Greer. By then, they would have had time sufficient to review Mr. Smith’s entire file, digest and assimilate the same, and hear the details of the propounders’ position at the mediation.

[15] Assuming, however, that I am examining the moment in time when the reassessment ought to have occurred through the lens of all the evidence that was led at trial and not in real time, as it were, then perhaps the appropriate benchmark should be the moment that the propounders made a ‘real’ cash offer.

[16] After analyzing the benchmark events and the corresponding bills of costs, some of which comported with the form of bill requested,[^10] I have determined that the appropriate cut-off ‘point of bifurcation’ should be the time leading up to the second mediation before the Hon. Douglas Cunningham in June 2020, some three months before trial (“Cunningham Mediation”). All discoveries by then had long been completed, the psychiatric retrospective assessments had been tabled, a further pre-trial before Hainey J. had taken place, and various offers to settle from all but the Objectors had been delivered.

[17] In my view, the Objectors should not benefit from their intransigence in failing to resolve the matter reasonably at that moment in time. They should not get a free ride, as it were, to the moment of the significant cash offer made in late August 2020.

Who Recovers

[18] Four sets of solicitors have made a claim for costs.[^11] In the aggregate, they are seeking fees totaling $539,000 on a partial indemnity basis to $845,000 on a full indemnity basis. Having regard to the size of the estate, these claims give new meaning to the notion of proportionality.

[19] There is not only duplication of effort, even as between counsel for the Estate Trustees and the Charities, but the claims of the Kates Grandchildren and Theresa Pupulin also give rise to the question as to whether some or all of the fees sought by the latter parties are recoverable.

[20] It is clear to me that the heavy lifting during trial was undertaken by counsel for the Estate Trustees and the Charities. I am satisfied from the work product of Messrs. Trudelle and Worsfold, revealed at trial, that their two firms did much of the necessary work along the road to and including the trial. As such, they will be similarly compensated for the pre-trial work.

[21] Hence, the Estate Trustees and the Charities will be entitled to recover their fees for the time spent prior to the Cunningham Mediation to the end of trial, as discussed below. The rate of recovery of each of these two firms will also be analyzed below.

[22] While the Kates Grandchildren told me at the trial management meeting in late August 2020 that they intended to “submit their clients’ rights” to the Court,[^12] a concept with which I was not at the time familiar, they then purported to resile from that position at the opening of the trial proper.

[23] As part of their ‘second’ costs submissions, in which they attempted to plug holes left open in their first request for compensation, the Kates Grandchildren suggested that they were asked by the Charities’ counsel to participate in the trial.

[24] I make three observations in respect of this statement:

(1) This is the first time that such a position was ever asserted, even though I confronted the Kates Grandchildren’s counsel for a rationale for his change in position at the commencement of trial and laterally when I met with counsel to discuss costs submissions after the release of my judgment. In any event, while participation might have been requested, it was not warranted, a fact which I warned counsel about several times during and immediately after the trial;

(2) When one cuts away the verbiage in the exchange between counsel for the Charities and the Kates Grandchildren most recently provided, it is apparent that the Kates Grandchildren were asked to maintain a watching brief and would have but minimal involvement at trial, a fact which is borne out by what actually transpired and the work product provided;

(3) Counsel for the Kates Grandchildren acknowledged to me, as I recall, that the main thrust for making a request for costs would be to recover costs to trial for the work he suggested his firm undertook along the way and not at the trial proper, which he actually averred to in his second written submission. That proposition does not, in my view, provide a justification for the time logged by his firm in preparation for and at trial.

[25] In my view, the position of counsel for the Kates Grandchildren, who I would observe added precious little to the prosecution of the case during trial, is untenable. Accordingly, that firm will be entitled to recover but a token amount for the costs incurred from and after August 26, 2020, if only to reflect the fact that they participated in a meaningful offer to settle delivered prior to trial. What amount they recover for time spent before that date in respect of the benchmark events as reflected in their very heavy-handed dockets will be discussed below.

[26] Theresa Pupulin, who was without doubt a very credible and helpful witness, retained her own counsel in 2017. Although I understand her interests in the outcome of the litigation were different to that of the other Estate Trustees,[^13] I am not sure why she felt compelled to have counsel throughout the trial.

[27] She had a community of interest with the other Estate Trustees at least, if not the Charities, and her interests on the only real issue, namely the issue of capacity, were well attended to by those named counsel. While that issue was not free of doubt, her lawyer at trial made it repeatedly and abundantly clear that he was there to deal with the second issue of undue influence only.[^14]

[28] While I suspect Mr. Graham helped prepare Ms. Pupulin for her testimony, his participation in the trial on all other matters was limited to very few questions. Indeed, he acknowledged in his own costs materials that the undue influence issue was barely breathing when the matter came to trial. In my opinion, he could easily have made ‘cameo appearances’ during the virtual trial, a procedure which could have been readily accommodated without his day-to-day or minute-to-minute attendance.

[29] Furthermore, he took unusual positions on some matters, including late document production, and brought a wasteful motion mid-trial that would have all but derailed the proceedings had I permitted him to continue down that track.

[30] In the final analysis, his fees for the trial will be markedly reduced.

[31] Finally, on this global point of separate representation, I direct counsel to the comments of my colleague Pattillo J. in Primo Poloniato Grandchildren’s Trust (Trustee of) v. Browne,[^15] where he observed, “Once the interests are aligned, it is incumbent on the parties to agree on single representation or risk receiving reduced or no costs at all.”[^16]

[32] The instant case was one in which, in my view, counsel should have undertaken a division of labour all the way through to the end of trial to ensure that I would not have to separate the wheat from the chaff and sort out whether and where there was duplication for which compensation should now or not be permitted.

The Operative Offer to Settle

[33] The non-Objector parties (for ease of reference called the “Successful Parties”), made several offers throughout the litigation, which the Objectors did not entertain. For the most part, the early offers by several of the Successful Parties sought to end the litigation by the payment to them of some modest amount for costs, or even no costs, to the date of the offer.

[34] A substantial offer to settle totaling $850,000 (the “Offer”) was made three weeks prior to the commencement of trial, which would have been funded by the Successful Parties, including the Charities, the Kates Grandchildren, and Arowhon Pines. In addition, all the Successful Parties sought to be recompensed for their costs to the moment of the Offer on a full indemnity basis out of the estate. This, as I said before, was a ‘real’ offer and should have been seriously entertained by the Objectors. And now there are cost consequences flowing therefrom.

[35] Counsel for the Objectors argued that, because of the manner in which the issues were framed, the Successful Parties or some of them fall into the category of ‘defendant’ under Rule 49 and are therefore limited in terms of recovery.[^17]

[36] The starting position for my analysis is the Order Giving Directions made by Hainey J. in September 2017. Distilling that order to its simplest, I am of the view that, for purposes of the trial over which I presided and the processes to trial, the Estate Trustees During Litigation (Mr. Trudelle’s clients) and the Charities (Mr. Worsfold’s clients) were effectively designated ‘plaintiffs’, with the Objectors coming in as the ‘true defendants’. The secondary issue of undue influence, in my view, factors in but marginally and I decline to parse it out of the Rule 49 equation.

[37] For reasons that were not canvassed, none of the other named parties was put into a category for litigation purposes. Hence, the Kates Grandchildren and Theresa Pupulin in her own capacity, while clearly interested in the result, cannot shelter, as it were, under Rule 49. That said, and for the reasons set out above, I find that neither will be entitled to substantial indemnity after the date of the Offer.

Costs – The Bottom Line

[38] I do not intend to preface this portion of my judgment by setting out s. 131 of the Courts of Justice Act,[^18] Rule 57, or the case law reviewed in the innumerable decisions I and others have written over the 24 years that I have been sitting as a judge.[^19] That analysis and the criteria expressed in the Rules are hereby incorporated by reference.

[39] Furthermore, I have taken all the benchmark events and each of the bills of costs and ‘charted’ the same, which are appended as Tabs A and B to this endorsement.[^20] In some respects, this analysis has left me with an ‘apples and oranges’ comparison, since the descriptors used by counsel are not completely congruous. But I am content that the exercise of my discretion within the parameters described is reasonable in all the circumstances.

The Estate Trustees

[40] There is no reason why the Estate Trustees During Litigation should not be compensated for their costs incurred on a full indemnity basis. I do not believe that the amounts charged by Hull and Hull are excessive, since mostly all of the work was done by Mr. Trudelle himself and I am hard-pressed to say that his accounts should be pared back in any respect. They shall be entitled to recover $264,169.50 and the listed disbursements. Of that amount, the sum of $163,827 shall be payable by the Objectors and the balance shall be charged to the estate.

The Charities

[41] The accounts of Mills and Mills, counsel for the Charities, are not as easy to analyze. They did not provide me with a substantial indemnity figure, but moved from a partial to an actual billed fees number for costs. In addition, and not withstanding Mr. Worsfold’s first-rate counsel work, I believe there was a small amount of duplication in the work undertaken by his associates, for which I have affected a modest tweak.

[42] I will therefore award his firm costs in the aggregate of $195,000, of which $110,000 plus disbursements and HST shall be payable by the Objectors. The balance is payable out of the estate.

Theresa Pupulin

[43] Mr. Graham submitted significant accounts. In my opinion and for the reasons previously expressed, these are not justified in terms of either hours recorded or rates charged. He is seeking substantial indemnity fees of $190,000, approximately $140,000 of which is for his preparation and attendance at trial and beyond. That amount comes close to eclipsing the costs sought by Hull and Hull and Mills and Mills, which firms did, as indicated, the bulk of the heavy lifting.

[44] The amounts sought on even a partial indemnity basis for the same work are also off the dial, having regard to Mr. Graham’s own acknowledgment that his contribution on the capacity issue was limited to assisting other counsel before the trial.

[45] In my view, he is well compensated for his trial time, including trial and witness preparation (assuming he assisted Mr. Worsfold with Ms. Pupulin’s preparation for testimony) at $40,000.

[46] Mr. Graham is also seeking partial indemnity fees in excess of $82,000 for his time to and including the second mediation. This amount, having regard to the central issue covering his retainer, is also excessive when compared again to the work of the two other ‘main’ counsel. In my view, he is more than adequately compensated for such labours at an additional $40,000.

[47] I order that the sum of $40,000 plus all disbursements and HST be paid by the Objectors and the balance be charged against the estate.

The Kates Grandchildren

[48] I am truly troubled by the claims for costs submitted by Whaley Estate Litigation Partners. No less than seven lawyers docketed time to this brief at hourly rates that are staggering. The duplication at each of the benchmark events is, in my respectful opinion, manifest and accordingly unrecoverable.[^21]

[49] That firm is seeking to recover almost $44,000 for trial time on a substantial indemnity basis and $28,400 on a partial indemnity scale. I have determined to allow $7,500 for trial, having regard to my comments above.

[50] I have assessed the rest of their bill of costs and reviewed each of the benchmark events, and have determined to permit recovery on a partial indemnity basis limited to $40,000. This, in my view, is more than generous.[^22] The ‘multiple lawyering’ and complexity of the issues with which this firm was charged, in addition to those matters undertaken by the lead lawyers, does not come close to warranting the amounts claimed.

[51] They shall be entitled to recover $10,000 of the total assessed costs, plus disbursements and applicable HST, from the Objectors, with the balance to be paid out of the estate.

[52] I make no further observations in the body of the judgment in respect of this firm’s claim for costs. In my view, the appended charts speak volumes in support of my concerns.

Conclusion

[53] I will leave it to counsel to furnish me with an order to reflect the matters set out in the above endorsement, since a formal order will have to be taken out so the parties can avail themselves, if necessary, of the Order for Security for Costs.

ARTHUR M. GANS J.

Date: April 9, 2021

TAB A

DATE	EVENT
September 29, 2017	Order Giving Direction
December 8, 2017	Production of Barry Smith’s file First offer to settle from the Charities
February 5, 2018	Examination for Discovery of Mr. Smith
February 27, 2018	Mediation before Greer J.
August 13, 2018	Order for Security for Costs granted by Dunphy J.
October 11-12, 2018	Examinations for discovery
January 9, 2019	Retrospective capacity assessment report by Dr. Shulman finalized
February 25, 2019	Pre-trial before Hainey J.
February 4, 2020	Second offer to settle from the Charities
February 19. 2020	First offer to settle from the Kates Grandchildren
June 16, 2020	Second mediation before Cunningham J.
August 13, 2020	Second offer to settle from the Kates Grandchildren
August 24, 2020	Global offer to settle from the Successful Parties
August 26, 2020	Case management conference before Gans J.
September 11, 2020	Offer to settle from Theresa Pupulin
September 18 – October 2, 2020	Trial

TAB B

	TRUSTEES	PUPULIN	KATES	CHARITIES
Retainer, File Review, etc.	16.6 hours $11,293.00	11.9 hours $5,185.00	33.8 hours $15,902.90
Application Record, Order for Directions	23.2 hours $15,690.00	11.3 hours $5,932.50
Barry Smith File Work	20.2 hours $13,963.00		51.9 hours $24,094.00 This includes witness statements and materials
Mediation Feb. 27, 2018	19 hours $13,179.00	22.3 hours $12,822.50	45 hours $22,860.00	35.2 hours $16,399.50
Mediation June 16, 2020	11.6 hours $6,670.00		9.3 hours $5,115.00
Examinations for Discovery	24 hours $16,680.00 This includes undertakings	28.7 hours $16,502.50	76.8 hours $34,305.00	39.4 hours $16,630.00 This includes trial preparation and an expert report
Power of Appointment Issues			2.3 hours $1,598.50
Passing of Accounts Review			12.2 hours $4,370.00
Offers to Settle	6.6 hours $3,795		17.2 hours $9,882.50
Motion for Security for Costs	16.7 hours $11,606.50 This includes other interlocutory issues	16.8 hours $8,295.00	33.8 hours $15,879.00 This includes witness preparation
Correspondence Sent / Received			21.7 hours $11,847.50
Pretrial	23.5 hours $16,332.50	12 hours $6,900.00	17.5 hours $9,417.50	15.15 hours $8,181.00
Trial Preparation	238.2 hours $163,827.00	110.8 hours $63,710.00	104.25 hours $50,892.75
Trial	97.7 hours $56,177.50	97.7 hours $43,707.50	115.1 hours $55,180.00
Closing Submissions	18.1 hours $10,407.50		42.1 hours $14,945.50
Judgment, Costs Submissions	13.8 hours $7,935.00		32.85 hours $14,162.50
TOTAL	383.7 hours $264,169.50	333.5 hours $190,105.00	338.7 hours $160,587.90*	490.35 hours $227,411.75

*There is a slight difference between this figure and the original bill of costs.

[^1]: Mercifully, the game in the instant case is not totally academic, since no appeal from my judgment at first instance has been filed. Hence, whatever might occur as a result of my fixing of costs will not be tweaked because the judgment on the merits will not be overturned. [^2]: The Day Grandchildren as defined in the reasons for judgment: see Kates Estate, 2020 ONSC 7046, at para. 4. [^3]: (2005), 2005 CanLII 21091 (ON CA), 255 D.L.R. (4th) 435, 199 O.A.C. (3d) 36 (C.A.), at paras. 78 and 80. [^4]: 2013 ONCA 225, 86 E.T.R. (3d) 6, at paras. 89 and 103. [^5]: 2019 ONCA 978, 150 O.R. (3d) 663. [^6]: (2009), 2009 CanLII 28403 (ON SC), 50 E.T.R. (3d) 227 (Ont. S.C.). [^7]: See Kates Estate, at para. 103. [^8]: 2014 ONCA 101, 119 O.R. (3d) 812. [^9]: The Kates Grandchildren as defined in the reasons for judgment: see Kates Estate, at para. 3. [^10]: Counsel for all the parties but the Kates Grandchildren provided me with the form of bill of costs originally ordered. It took counsel for the Kates Grandchildren two ‘kicks at the can’ to comport with the mandated format, the latter of which was delivered in mid-February and only after I redirected counsel’s attention to the problem with which I was faced. [^11]: It is noteworthy that the Children’s Lawyer has not made a claim for costs. Generally speaking, I am advised that the Children’s Lawyer has the same entitlement to costs as any other party. However, the Children’s Lawyer and counsel for the Objectors struck a deal prior to trial that neither would seek costs against the other. This somewhat curious arrangement is made all the more reasonable since the Children’s Lawyer was representing a minor Day Grandchild who would be ‘doing battle’, as it were, with his aunts. [^12]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 75.07. [^13]: Ms. Pupulin was a beneficiary under the First Codicil to the Secondary Will and the company whose shares she received indirectly benefited from the impugned codicils. [^14]: Counsel for Ms. Pupulin sought to append articles from Frank Magazine to his submissions to underscore the ‘concerns’ of his client. This method of extraneous evidence introduction was not only improper but unhelpful. While, generally speaking, costs submissions are taken at face value and evidence, as such, is not usually filed, counsel are obliged to make accurate and helpful representations to assist the Court: see Voth v. Voth, 2016 ONSC 4002; Mackenzie v. 1785836 Ontario Ltd., 2018 ONSC 4992. [^15]: 2011 ONSC 4400, 71 E.T.R. (3d) 185, at para. 47. See also MacLeod v. Rayment & Collins, 2006 CanLII 16363 (Ont. S.C.); Wadson v. Mrozek Estate (2001), 39 E.T.R. (2d) 318 (Ont. S.C.). [^16]: There is but one wrinkle to the above analysis: on the eve of trial, counsel for Ms. Pupulin served an offer to settle in which he sought compensation in the amount of $50,000, presumably for fees to that moment in time, and costs thereafter on a partial indemnity basis. While the form of offer was interesting and Mr. Graham sought somehow to separate himself from the global offer made by the other parties to the Objectors three weeks prior, I am not sure I see how he is benefitted from this September 2020 offer. [^17]: Regrettably, as I recall from the welter of material sent to me, none of the Successful Parties traversed this issue in their reply material and I was left to struggle with it on my own. [^18]: R.S.O. 1990, c. C.43. [^19]: See, for example, Kollaras (Litigation Guardian of) v. Olympic Airways S.A., 1999 CanLII 14852 (ON SC), 1999 CarswellOnt 2015 (S.C.), aff’d 2000 CarswellOnt (C.A.); Gu v. Tai Foong International Inc., 2005 CarswellOnt 1848; Bimman v. Neiman, 2015 ONSC 4144, costs aff’d 2017 ONCA 264; and Aquam Corporation v. Richard Coffey et al., 2019 ONSC 145. [^20]: I am indebted to my law clerk, Anne Lewis, who compiled the appended charts from the material provided by counsel. Suffice to say, her work product was invaluable in providing me with a bird’s eye view of the unending array of numbers. [^21]: The hours logged by the name partner is alone reflective of the case in point. She logged 10.6 hours of trial time (when she was not there for any time at all, as I recall), an additional 8 hours for trial preparation, and countless hours along the trial process route. As I indicated above, when I received the first bill of costs from this firm, the format did not accord with my initial mandate. I asked for and was sent another bill of costs which, while in the form mandated, gave rise to more questions, both in terms of the benchmark amounts claimed and the totals reported. [^22]: In addition, the Whaley Bill of Costs included an amount for the passing of accounts, a claim which is not recoverable as a cost attendant to the litigation. It was buried in their material at first instance and only came to light when I requested a revised form of bill of costs.