COURT FILE NO.: (CV-19-3784 and) CV-19-3035
DATE: 2021 04 30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Armando Carlos, Ilda Luceri and Lino Carlos
Orie Niedzviecki, for the Applicants
Applicants
- and -
Fernanda Leitao, as Estate Trustee of Armando De Oliveira
Bradley Phillips, for the Respondent
Respondent
COSTS ENDORSEMENT
[1] Ms. Leitao seeks full indemnity costs of $28,911.33, inclusive of HST and disbursements for the March 9, 2021 hearing, and that the costs be paid by Armando Carlos, Ilda Luceri, and Lino Carlos (the “Objectors”) personally, or from their respective shares of the Estate.
[2] She submits that the estate has been unnecessarily depleted by unreasonable positions taken by the Objectors, particularly given the dire financial circumstances expressed by the non-objecting beneficiaries.
[3] The Objectors oppose the payment of any costs personally and ask that all parties receive their full indemnity costs which they seek in the amount of $19,155.50 inclusive of HST and disbursements.
[4] Neither the Executor nor the Objectors advise that any Offers to Settle the hearing were served.
[5] Rule 57.01 of the Rules of Civil Procedure sets out the factors that I may consider in making an award of costs. Overall, the objective is to fix an amount that is fair and reasonable. A full recovery of costs is generally reserved for matters in which “the losing party has engaged in behaviour worthy of sanction”: see Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66, at para. 28.
[6] In my reasons, I made a number of mixed findings. The Objectors' position on the pre-death passing of accounts was accepted. The Executor’s position on the post-death accounting was accepted, but for a reduction in executor’s compensation.
[7] I accept the Objectors' submissions that much of the expense of administrating the Estate was caused by the Executor’s poor communication, delayed disclosure of the disputed cheques, and her opposition to passing the pre-death accounts, which I ultimately ordered. I have addressed that sanction in my March 17, 2021 reasons. In the same manner, unreasonable litigation conduct of the Objectors has also been addressed in prior determinations.
[8] I am mindful that the traditional approach of all fees being paid by the Estate has been supplanted by the modern approach of fixing costs on the basis of fairness, proportionality and reasonableness: see Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ONCA).
[9] On the costs of the March 9, 2021 hearing, I find that the Objectors' position is reasonable, proportionate and sound in law. This was a hearing with mixed results, for which neither party made an Offer to Settle. I see no basis for costs to be paid exclusively by one side, or personally by either the Executor or the Objectors.
[10] I am however, prepared to assess the amount of costs to be paid by each of the parties on this one day Zoom hearing. In reviewing the respective Costs Outlines, I note a difference in fees that is not wholly attributable to the Executor’s lawyer’s higher hourly rate. Despite representing three clients, the Objectors' account is significantly less.
[11] Rule 57.01 of the Rules of Civil Procedure allows me to consider a broad range of criteria when fixing an amount of costs, such as what an unsuccessful party could expect to pay in costs, the complexity of the proceeding and reasonable litigation conduct. In considering the factors in a discretionary award, the moneys available to the estate and the need for some fairness to the non-objecting beneficiaries, I order that the Estate shall pay rounded costs on the March 9, 2021 hearing of $13,500 plus HST to the Executor, and costs of $13,500 plus HST to the Objectors.
McGEE J
Released: June 17, 2021
COURT FILE NO.: (CV-19-3784 and) CV-19-3035
DATE: 2021 04 30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Armando Carlos, Ilda Luceri and Lino Carlos
Applicants
- and -
Fernanda Leitao, as Estate Trustee of Armando De Oliveira
Respondents
REASONS FOR DECISION
McGEE J
Released: June 17, 2021