COURT FILE NO.: FC-17-1323
DATE: 2021/04/20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BARBARA COHEN
Applicant
– and –
STEVEN ERIC COHEN, in his capacity as Trustee of the Estate of SIDNEY COHEN, Deceased
Respondent
Susan Charendoff
Respondent
Stephen Victor, Q.C. and Kathleen Cooligan, for the Applicant
Daniel Schwartz, Erin Pleet, and Marta Siemiarczuk, for the Respondent, Steven Eric Cohen in his capacity as Trustee of the Estate of Sidney Cohen, Deceased
Susan Charendoff, Self-represented (on the return of the motions) and making no submissions
HEARD: In Writing
COSTS ENDORSEMENT
corthorn J.
Introduction
[1] The applicant (“Barbara”) and the late Sidney Cohen (“Sidney”) were married on July 1, 1986. On this application, Barbara seeks to set aside the marriage contract into which she and Sidney entered on June 30, 1986 (“the Contract”).
[2] In late 2019 and early 2020, Questioning was conducted of Barbara, Steven Cohen (“the Estate Trustee”) and Ken Radnoff, Q.C. Steven is the Estate Trustee for Sidney’s estate and he was questioned in that capacity. Mr. Radnoff was the lawyer with whom Barbara met on June 30, 1986 before she executed the Contract.
[3] The parties were unable to resolve all of the refusals and questions taken under advisement during Questioning of Barbara and of the Estate Trustee. Each party brought a motion seeking an order compelling the opposing party to answer questions taken under advisement or refused. In addition, the Estate requested directions with respect to Questioning of Barbara on the contents of 500 pages of documents disclosed by her in December 2020 (“the Documents”). The Documents relate to the breakdown of Barbara’s first marriage; they include copies of documents from the court file for the proceeding commenced by Barbara’s first husband.
[4] On the Estate’s motion, Barbara was ordered to answer all but one of the six refusals that remained in issue as of the return of the motion. In addition, Barbara was ordered to make inquiries of non-parties in an effort to secure documents related to the negotiation of the separation agreement between her and her first husband. Lastly, Barbara was ordered to re-attend for Questioning with respect to the Documents and other documents produced in fulfillment of the order made on the Estate’s motion. The court’s decision on both motions is found at Cohen v. Cohen Estate, 2021 ONSC 581.
[5] On her motion, Barbara was successful with respect to only one of the thirteen questions refused or taken under advisement by the Estate Trustee. The balance of her motion was dismissed.
Positions of the Parties
a) The Applicant
[6] Barbara acknowledges that with respect to questions refused or taken under advisement, the Estate Trustee was successful on his motion and Barbara was all but unsuccessful on hers. Barbara submits, however, that the court should look beyond the outcome of the motions.
[7] Barbara asks the court to consider the conclusions reached by the court with respect to the scope of Phase One of the trial of this application. Barbara asks the court to find that she was entirely successful on that point and, as a result is entitled to her costs of the motions.
[8] Barbara seeks an order entitling her to her costs of the motions on a partial indemnity basis in the amount of $40,000.
[9] In the alternative, Barbara submits that if costs of the motions are awarded to the Estate Trustee, then those costs should be payable in the cause.
b) The Respondent
[10] The Estate Trustee submits that he was unequivocally successful both on his motion and in responding to Barbara’s motion. He submits that Barbara mis-characterizes the importance of the court’s conclusions with respect to the scope of Phase One of the trial. The Estate Trustee acknowledges that the court made findings of fact in that regard. He submits that the scope of Phase One was not, however, an issue on either motion or, more specifically, an issue on which Barbara was successful.
[11] The Estate Trustee seeks his costs of both motions, on a partial indemnity basis, in the amount of $25,845.70 for fees and $718.06 for disbursements. Both amounts are inclusive of HST.
[12] In response to Barbara’s alternate position, the Estate Trustee’s position is that, in the ordinary course, under both the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and the Family Law Rules, O. Reg. 114/99 (“FLR”), costs are fixed and payable following each step in a proceeding. The Estate Trustee submits that there is no basis upon which to make the award of costs on the motions payable in the cause.
Disposition
[13] For the reasons that follow, the Estate Trustee is entitled to his costs of the motions, on a partial indemnity basis in the amount of $25,200 inclusive of fees, disbursements, and HST.
Analysis
a) Entitlement to Costs
[14] Whether considered arithmetically or on the whole, it is clear that the Estate Trustee was the successful party on the motions. The issues determined on the motions were restricted to which of the questions refused or taken under advisement are the parties required to answer. In that regard, the Estate Trustee was successful and Barbara all but entirely unsuccessful.
[15] For the court to determine the relevance of certain questions refused or taken under advisement, it was necessary to make findings with respect to the scope of Phase One of the trial (“the Findings”). The Findings were based on the ruling of Justice Audet on the bifurcation motion and the transcript of that proceeding: Cohen v. Cohen, 2019 ONSC 4456. Findings may be viewed by one party as more favourable to them than the other in the overall context of the application. Even if the Findings are more favourable to Barbara (as she suggests and about which I make no determination in this endorsement), they are not relevant to the court’s assessment of success or lack of success on the motions. The Findings are not a basis upon which to deny the Estate Trustee his costs of the motions.
[16] I agree with Barbara, however, that the conduct of the Estate Trustee as it relates to the scope of Phase One of the trial contributed to an increase in the complexity and duration of the motions – specifically Barbara’s motion. That litigation conduct is addressed below when the quantum of costs payable is fixed.
[17] I find that Barbara has not rebutted the presumption that the Estate Trustee, as the successful party, is entitled to his costs of the motions: FLR, R. 24(1).
b) Scale and Quantum of Costs
[18] The bill of costs delivered by the Estate Trustee sets out partial indemnity fees in the amount of $25,845.70 and disbursements of $718.06, with both amounts inclusive of HST. Barbara does not take issue with the scale upon which costs are claimed or the quantum. Nor does she take issue with the hourly rates charged by the timekeepers whose fees are included in the bill of costs.
[19] As noted above I find that the approach taken by the Estate Trustee to the scope of Phase One of the trial contributed to increase both the complexity and the duration of Barbara’s motion. There are 116 substantive paragraphs in the court’s ruling on the motions, excluding the Disposition section. Paragraphs 9-16 and 68-83 are devoted to the subject of Phase One. Those 22 paragraphs represent approximately 20 per cent of the ruling (22/116 x 100).
[20] The position taken by the Estate Trustee did not result in an increase in all aspects of the work done by the Estate Trustee’s counsel on the motions. If anything, that position resulted in the hearing lasting longer than it otherwise would have. It also led to additional work on behalf of the Estate Trustee subsequent to the oral hearing. That work related to providing the court with a copy of the transcript of the proceeding before Justice Audet. I note that the bill of costs does not include any fees related to the post-hearing work.
[21] In the end, I reduce the fees claimed by $500, representing 20 per cent of counsel’s fees for the six-hour hearing of the motions on January 5, 2021.
[22] My only other concern with respect to the fees claimed is what appears to be a duplication of effort between the Estate Trustee’s co-counsel in their communication with the client. Both co-counsel identified three hours spent on such communication. The fees in that regard total approximately $2,150. I reduce that amount by $700 (roughly one-third) because of duplication of effort.
[23] In total, I reduce the $22,872.30 in fees claimed by $1,200 to $21,672.30. The HST on that amount is $2,817.40.
[24] The disbursements claimed are not disputed. They appear reasonable to me. I award the full amount of the disbursements claimed, including the applicable HST.
[25] In summary, the Estate Trustee is entitled to his costs of the motions, calculated as follows:
Fees $ 21,672.30
HST on fees $ 2,817.40
Disbursements $ 635.40
HST on disbursements $ 82.61
Total $ 25,207.76
Rounded to $ 25,200.00
Order Made
[26] The parties were unable to agree upon the terms of the order to be taken out pursuant to the court’s ruling on the motions. In the court’s endorsement following the appointment to settle the terms of the order, the Estate Trustee was awarded costs of $500 for the appointment. That costs order was stayed pending the determination of costs of the motions.
[27] With costs of the motions now determined, the stay of the previous costs order is lifted. There is no reason to delay payment of costs of the appointment or to make them payable in the cause.
[28] I, therefore, order that Barbara pay to the Estate Trustee his costs, inclusive of fees, disbursements, and HST of (a) the motions, on the partial indemnity scale, in the amount of $25,200, and (b) the appointment to settle the order in the amount of $500.
[29] For clarity, there shall be no costs awarded with respect to the costs submissions on the motions.
Madam Justice Sylvia Corthorn
Released: April 20, 2021
COURT FILE NO.: FC-17-1323
DATE: 2021/04/20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
BARBARA COHEN
Applicant
– and –
STEVEN ERIC COHEN, in his capacity as Trustee of the Estate of SIDNEY COHEN, Deceased
Respondent
COSTS ENDORSEMENT
Madam Justice Sylvia Corthorn
Released: April 20, 2021