Court File and Parties

COURT FILE NO.: 12769/19 DATE: 2021-05-25 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LYNDA JOY De ATHE, Plaintiff AND: THE ESTATE OF ROBERT De ATHE, deceased Defendant

BEFORE: Mr. Justice Robert B. Reid

COUNSEL: J. Hopkins, Counsel, for the Plaintiff W. Abbott, Counsel, for the Defendant

HEARD: March 5, 2021; costs submissions made by May 7, 2021

DECISION ON costs of MOTION

Introduction:

[1] Lynda Joy De Athe (“Ms. De Athe”) brought a motion seeking an order for leave to extend the time to bring her claim pursuant to s. 61(2) of the Succession Law Reform Act[^1], (the “SLRA”) and for an order transferring this action from Welland to St. Catharines to be consolidated or heard together with file no. 59256/19.

[2] The Estate of Robert Arthur De Athe (the “Estate”) opposed the request for leave but did not oppose the transfer and consolidation of the file if the motion was otherwise successful.

[3] In my decision dated March 30, 2021, I granted the plaintiff’s request to extend the time to bring her claim.

[4] The parties were not able to resolve the costs issue consensually and have filed written submissions.

[5] The plaintiff seeks costs on a partial indemnity scale in the amount of $4,050.21 inclusive of disbursements and HST relying primarily on the presumption that a costs award should follow success. The plaintiff submits that the costs award sought is modest and proportionate and notes that the issues in the motion were of substantial importance to both parties.

[6] The defendant submits that there should be no award of costs of the motion and that a departure from the presumptive award following success is justified in this case. Referring to factors set out in rule 57.01(1) of the Rules of Civil Procedure, the defendant notes that the conduct of the plaintiff unnecessarily lengthened the duration of the proceedings. In the first place, the plaintiff failed to act within the statutory time for commencing a claim and then did not start the action until approximately 18 months later, without offering an explanation for the delay.

Costs:

[7] The court’s discretion to award costs is found in s. 131 of the Courts of Justice Act, and the factors to guide the exercise of that discretion are found in rule 57.01 of the Rules.

[8] The plaintiff is correct that success is a presumptive factor auguring in favour of a costs award, and in this motion the plaintiff was successful. The matter was not particularly complicated and, once scheduled, was not delayed. The costs claimed are not disproportionate.

[9] The defendant submitted that the substantial delay on the part of the plaintiff in bringing the motion was a factor that should be considered under clause 57.01(1)(e) which allows the court to consider the conduct of any party that tended to lengthen unnecessarily the duration of the proceeding. In my view, that provision more aptly relates to a delay from the bringing of the motion through to the hearing date. As such, I do not give it particular weight in the circumstances.

[10] However, rule 57.01(2) states that the fact that a party is successful in a proceeding or a step in a proceeding does not prevent the court from awarding costs against the party in a proper case. In other words, the court has full discretion as to the award of costs notwithstanding success.

[11] In this case, if the plaintiff had moved expeditiously in advancing her claim within the statutory limitation period under the SLRA, there would have been no need for this motion. In effect, the plaintiff has come to court asking for an indulgence through an order permitting her claim to proceed notwithstanding the expiry of the limitation period.

[12] Given the passage of some 18 months beyond the end of the limitation period without any explanation, it was not surprising for the defendant to have opposed the motion. The plaintiff’s success on the motion was not a foregone conclusion.

[13] The plaintiff was the author of her own misfortune as to the costs incurred in bringing the motion. It seems unfair and inappropriate to make the defendant responsible for any portion of the plaintiff’s costs.

[14] As a result, there will be no order as to costs.

Reid J.

Date: May 25, 2021

[^1]: R.S.O. 1990, c S.26