COURT FILE NO.: CV-20-00648075

DATE: 20210407

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: THE BOARD OF TRUSTEES OF THE IRONWORKERS ONTARIO PENSION FUND

AND:

DEANNA LANTZ a.k.a. DEANNA MUZZI, ALEISHA LANTZ-GIANNINI and EVAN CARTER

BEFORE: Mr. Justice Chalmers

COUNSEL: S. Hodge, for the Applicant

J. Angelakis, for the Respondents Deanna Lanttz a.k.a. Deanna Muzzi, Aleisha Lantz-Giannini

A. Kassa, for the Respondent, Evan Carter

HEARD: April 6, 2021, by videoconference

ENDORSEMENT

Overview

[1] The Applicant, The Board of Trustees of the Ironworkers Ontario Pension Fund, brings this Application for an Interpleader Order with respect to the sum of $62,841.54. The Respondents, Deanna Lantz a.k.a. Deanna Muzzi and Aliesha Lantz-Giannini consent to the relief sought. The Respondent, Evan Carter opposes the Application on the basis that the liability of the Applicant should not be extinguished once payment of the sum is paid into court.

Background Facts

[2] The facts are not seriously in dispute.

[3] The Applicant administers a Pension Fund pursuant to an Amended and Restated Agreement and Declaration of Trust, made as of April 18. 2018 (the “Plan”). Brandon Lantz was member of the Plan from April 1, 2012. At the time he joined the Plan he designated his mother, Deanna Muzzi and sister, Aleisha Lantz-Giannini as his beneficiaries.

[4] On August 27, 2018, Mr. Lantz submitted an application for retirement. In his pension application form he indicated that his spouse was Evan Carter. The Applicant wrote to Mr. Lantz on December 17, 2018 and advised that he was ineligible to retire under the terms of the Plan. He was also advised that his beneficiaries on file were Ms. Muzzi and Ms. Lantz-Giannini and that if he wished to change his beneficiaries, he would have to complete a new form. Mr. Lantz did not complete the form to change his beneficiaries.

[5] Mr. Lantz died on March 20, 2019.

[6] On April 9, 2019, the Applicant sent death benefit applications to Ms. Muzzi and Ms. Lantz-Giannini on the basis that they were the designated beneficiaries. The completed applications were returned to the Applicant on April 17, 2019. In mid-April 2019, Ms. Carter contacted the Applicant about Lantz’s pension benefits. On May 9, 2019, Ms. Carter filed an affidavit in which she declared she had been in a common-law relationship with Mr. Lantz for the past eight years and they had a child together, named Preston Carter-Lantz (“Preston”). The Applicant advised Ms. Muzzi of the competing claim by letter dated May 17, 2019. In the letter, the Applicant stated that the payment of the benefit is put on hold for 120 days starting May 31, 2019 to allow Ms. Carter sufficient time to initiate legal action. Ms. Carter did not initiate a legal action.

[7] On October 28, 2019, the Applicant wrote to counsel for Ms. Muzzi and Ms. Lantz-Giannini and Ms. Carter. The Applicant was of the view that the claim advanced by Ms. Carter was inconclusive. The Applicant stated that it would not pay out the proceeds of the pension benefit without a court order.

Analysis

Interpleader

[8] A person may seek an Interpleader Order if there are two or more claims in respect to property, the person has no beneficial interest in the property other than a lien for costs and is willing to deposit the property into court: Rule 43.02.

[9] I am satisfied that the Applicant is entitled to the order for the payment of the sum into court. It holds a specific fund, namely the Pre-Retirement Death Benefit with respect to Brandon Lantz, and there are two competing claims for the fund. The Applicant wishes to pay into court the money amount equal to the Pre-Retirement Death Benefit. The Applicant seeks an order that upon the payment of the sum into court, the liability of the Applicant with respect to the Pre-Retirement Death Benefit is extinguished.

[10] The Respondents consent to the payment into court, however Ms. Carter does not consent to an order extinguishing the Applicant’s liability.

[11] Ms. Carter filed an affidavit sworn on March 29, 2021. She states that she provided sufficient evidence that Mr. Lantz was the biological father of Preston, and that they had been in a common-law relationship. The Applicant was not satisfied with the evidence and maintained the position that there were two valid competing claims. Ms. Carter argues that she has a claim against the Applicant for causing emotional distress over the manner in which the claim was handled. Ms. Carter has not commenced an Action or Application against the Applicant.

[12] I am satisfied that there is no valid cause of action as against the Applicant. The designated beneficiaries are Ms. Muzzi and Ms. Lantz-Giannini. The onus is on Ms. Carter to prove her entitlement to the benefit. The Applicant takes the position that Ms. Carter has not provided sufficient evidence to prove her claim. The Applicant suggested to Ms. Carter that she proceed with a legal proceeding to establish her claim. She has not pursued a legal proceeding. There is no suggestion by Ms. Carter that the Applicant misappropriated or improperly dissipated the fund. On the contrary, the evidence establishes that the Applicant preserved the fund and did not make a payment to either competing party.

[13] I find that the Applicant is entitled to the Interpleader Order sought.

Costs

[14] The Applicant seeks payment of its costs on a substantial basis, payable by Ms. Carter. The Applicant argues that it incurred increased costs to obtain the Interpleader Order because the actions of Ms. Carter unnecessarily lengthened the proceedings. There were three attendances at court to obtain the order. Initially, Ms. Carter took the position that the Application was in the wrong jurisdiction and stated that she intended to bring a motion to transfer the Application to Hamilton. She did not bring the motion. The matter proceeded to a case conference before Justice Dow on February 22, 2021. Ms. Carter and her counsel failed to attend the case conference. Ms. Carter and her counsel did not advise the other parties or the Court that they would not be in attendance at the case conference.

[15] The Applicant filed a cost outline in which it claimed costs on a substantial indemnity basis in the amount of $36,076.77, inclusive of counsel fee, disbursements and HST. Ms. Carter argued that the costs are excessive and out of proportion of the amount in issue; $62,841.54.

[16] The award of costs is discretionary. In exercising my discretion, I may consider those factors set out in Rule 57.01(1) of the Rules of Civil Procedure. The award of costs is to be fair and reasonable and within the reasonable contemplation of the parties. Proportionality is a governing principle: Boucher v., Public Accountants Council for the Province of Ontario 2004 14579 (ON CA), [2004] O.J. No. 2634, 71 O.R. 291 (ONCA).

[17] I am not satisfied that the conduct of Ms. Carter was so egregious as to justify an award of substantial indemnity costs. Ms. Carter initially took the position that the Application was not commenced in the proper jurisdiction. Although the argument was abandoned, it had some merit given that the Responding parties and their lawyers are in Hamilton. By not pursuing this argument, the parties were not required to incur the additional costs of preparing materials and attending court. Although Ms. Carter and her counsel did not attend the case conference, I am not satisfied that this resulted in additional costs. A case conference was ordered to schedule the motion in any event.

[18] It is my view that the Applicant is entitled to an award of partial indemnity costs. The costs must be proportional to the amount in issue. I have some sympathy for the position the Applicant found itself. It was in the middle of two competing claims and as a result was required to incur costs through no fault of its own. However, the costs sought, even on a partial indemnity basis are out of proportion of the amount in issue and are not within the reasonable expectation of the parties.

[19] I fix the costs of the Application in the amount of $15,000 inclusive of counsel fee, disbursements and HST. The costs are payable by Ms. Carter to the Applicant within 60 days of the date of this endorsement.

[20] The Respondents, Ms. Muzzi and Ms. Lantz-Gianinni also sought costs payable by Ms. Carter. They argue that they were required to incur additional costs of the Application because of the position taken by Ms. Carter. I am not prepared to make an order with respect to the costs as between the Respondents. It will be necessary for the Respondents to proceed with litigation to determine the entitlement of the fund paid into court. The costs of the Respondents with respect to this Application are reserved to the judge who hears the subsequent proceeding.

Disposition

[21] I grant the Interpleader Order. Order to go in accordance with the draft order filed and signed by me.

[22] I order Ms. Carter to pay costs to the Applicant fixed in the amount of $15,000 inclusive of counsel fee, disbursements and HST. The costs are payable within 60 days of the date of this endorsement.

[23] The issue of costs as between the Respondents is reserved the judge who hears the subsequent proceeding.

Date: April 7, 2021