COURT FILE NO.: CV-21-75802

DATE: 20211006

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DEANNA LANTZ A.K.A DEANNA MUZZI and ALEISHA LANTZ-GIANNINI Applicants

AND

EVAN CARTER Respondent

BEFORE: Justice L. Sheard

COUNSEL: Patrick J. Kraemer, for the Applicants

Branko J. Kurpis, for the Respondent

HEARD: In writing

COSTS DECISION

Overview

[1] The applicant, Deanna Lantz (“Lantz”), is the mother of the late Brandon Lantz (the “Deceased”). The applicant, Aleisha Lantz-Giannini, is the Deceased’s sister. The respondent, Evan Carter (“Carter”) claims to be the common-law spouse of the Deceased and that Carter’s minor daughter, Preston Hope Carter-Lantz (“Preston”), is the biological child of the Deceased. The applicants dispute this assertion.

[2] At issue is entitlement to and/or claims against the assets of the Deceased, and, in particular, the $62,841.54 paid into court to the credit of this proceeding.

[3] On May 13, 2021, the parties appeared before Justice MacNeil on a motion brought by the applicants for an order that Preston undergo DNA testing to confirm whether she is the biological daughter of the Deceased. On June 4, 2021, MacNeil J. released her endorsement pursuant to which, the applicants were granted leave to obtain DNA testing of Preston to determine whether she is the biological daughter of the Deceased (the “MacNeil Order”). The MacNeil Order required that the DNA test be booked without delay and to take place within 14 days of the completion of the intake process. Once completed, Carter was to advise the applicants.

[4] The parties agreed that The DNA Lab in Guelph would perform the DNA testing but were unable to agree on how to effect that testing. A key dispute concerned the source of the Deceased’s DNA sample to be used for the analysis: specifically, should the DNA sample be taken from a necklace alleged to belong to the Deceased (the “Necklace”) or from tissue sample taken from the Deceased’s frozen tissue in the possession of the Toronto Medical Coroner (the “Tissue”)?

The Motion

[5] The applicants brought this motion, returnable August 25, 2021 and heard on August 31, 2021, seeking, in part, an order that Carter and Preston attend at The DNA Lab in Guelph to provide DNA samples. These samples would then be tested against the DNA taken from the Necklace.

[6] When counsel appeared before me on August 31, 2021, the amended confirmation form stated that Carter was not ready to proceed with the motion and was seeking an adjournment. The materials before me were voluminous and included numerous affidavits and a factum submitted by the moving party and affidavits submitted by the respondent.

[7] In the course of hearing submissions respecting Carter’s adjournment request, it became clear that the parties were largely in agreement as to next steps and that an adjournment would likely serve only to increase costs and cause delay. Therefore, before the adjournment request was determined by the court, the parties were asked whether the parties might be able to reach an agreement as to the terms of an order. After hearing from counsel, and without argument on the merits, an order was made that contained terms agreed to by the parties.

[8] Briefly, the order contains a timetable for the DNA samples given by Carter and Preston to be sent to The DNA Lab to be compared with the DNA taken from the Necklace for the purpose of determining if Preston is the biological child of the Deceased. If the testing does not show that Preston is the biological child of the Deceased, then Lantz is to authorize the Toronto Medical Coroner to release tissue of the Deceased to The DNA Lab for further testing against Carter and Preston’s DNA. Carter is to pay the “up-front” cost of $625 for this second test.

[9] At the conclusion of the hearing, counsel for the applicants indicated that his clients would be seeking their costs of the motion which he estimated at approximately $13,000. The respondent was not prepared to argue costs and, as a result, the order invited both parties to submit written costs submissions.

[10] I have now received the parties’ written cost submissions and this decision is based on those submissions.

Position of the Parties on Costs

(i) The Applicants

[11] The applicants submit that they were the successful parties on the motion in that the order made on the motion was very close to the order sought by the applicants and, also, to the order contemplated in the applicants’ Offer to Settle, served August 24, 2021. The applicants submit that they are entitled to their costs for the period July 22, 2021 to August 24, 2021 on a partial indemnity scale, and to their costs on a substantial indemnity scale from August 24, 2021 to the date of hearing. Calculated in that manner, the applicants’ costs total of $17,485.82. This figure includes taxes in addition to disbursements of $998 representing the $320 court filing fee for the motion and $678.00 paid to Amanda Kaster, a Forensic Biologist with the Human DNA Department of Bureau Veritas (which includes The DNA Lab, a Division of Bureau Veritas) located in Guelph, Ontario, Ms. Kaster for her affidavit, filed on the motion.

[12] The applicants served an Offer to Settle on August 24, 2021 attaching a draft Order. The Offer was open for acceptance until one minute after the commencement of the motion. The proposed order provided that:

(a) Carter and Preston attend at The DNA Lab to provide a DNA sample to be used firstly, for a maternity test, to establish whether Carter is Preston’s mother;

(b) After release of the results of the maternity test, Lantz would authorize the Toronto Coroner to release the Tissue to The DNA Lab to be used to confirm whether Lantz was the Deceased’s mother;

(c) The DNA Lab would then be asked to compare Preston’s DNA to the DNA taken from the Necklace and from the Tissue;

(d) Lantz would initially cover the cost of the DNA testing of the Tissue but if the results were the same on the DNA testing based on DNA taken from the Necklace and based on DNA taken from the Tissue, Carter would be required to reimburse the applicants the $625 cost of the DNA testing performed on the Tissue; and

(e) Costs of the motion would be determined by the judge determining the application.

[13] On August 25, 2021 the applicants served the affidavit of April Postnikoff, a lawyer with the law firm representing the applicants, which attached email correspondence between counsel leading up to and following the service of the applicant’s motion. Also attached was an email exchange between applicants’ counsel and a representative of The DNA Lab dated August 24, 2021, in which The DNA Lab advised that DNA samples from the respondent and Preston had not been provided. On its face, that email conflicted with the information provided to applicants’ counsel via Carter’s counsel that Carter and Preston had already provided a DNA sample.

[14] The Offer to Settle was not accepted.

[15] In their Costs Outline the applicants state that:

1. the motion was not complex;

2. the issue is important to the parties;

3. the conduct of the respondent to submit to DNA testing has unnecessarily lengthened the duration of the proceeding;

4. the respondent’s refusal to allow her and Preston’s DNA to be compared to the DNA taken from the Necklace was improper and unnecessary; and,

5. after receiving Ms. Kaster’s report, the respondent should have admitted that the DNA sample taken from the Necklace belong to the Deceased.

[16] The applicants’ Costs Outline breaks out the partial and substantial indemnity costs as follows:

(i) Partial Indemnity: 35.5 hours of lawyers’ time and 6.7 hours of law clerk’s time allocated to “motion preparation” for a total of $10,081.86, inclusive of HST;

(ii) Substantial Indemnity: 17.2 hours of lawyers’ time and 1.2 hours of law clerk’s time for a total of $6,205.96 inclusive of HST;

(iii) appearance fee of $200 all inclusive; and

(iv) disbursements of $998.00.

ii) The Respondent

[17] In her written submissions, Carter asserts that she was in compliance with the order of McNeil J. By email dated July 27 2021, Carter’s counsel advised the applicants’ counsel that Carter and Preston had had their DNA taken that day “with the instruction that further testing not be done until you and I and/or the court sort it out.”

[18] In email exchanges between counsel of July 27, 2021, Carter’s counsel confirms that no testing had been done on his client’s DNA and that his client would oppose using the DNA taken from the Necklace. In a later email of August 23, 2021, Carter’s counsel confirms that his client does not agree to use the DNA taken from the Necklace and asked that Lantz authorize the Toronto Coroner to release the Tissue.

[19] Carter asserts that the parties had not agreed that DNA taken from the Necklace could be used and that Lantz unilaterally chose to use the Necklace for testing without consulting with Carter. Carter submits that, after bringing their motion, and in the face of emails from Carter’s lawyer advising that Carter and Preston had provided DNA samples that could be sent to The DNA Lab, Lantz’s counsel stated that without a responding affidavit, there was no basis to accept that Carter and Preston had, in fact, given a DNA sample. Carter asserts that she had not delivered responding materials in order to keep costs down, but that the applicants left her no choice but to do so.

[20] Carter submits that given the mistrust between the parties, instead of incurring the costs of a DNA report using a sample from the Necklace, Lantz ought to have authorized the release of the Tissue for the testing, as the Tissue would have provided “the most valid and reliable DNA”.

[21] Counsel for Carter attempted to resolve the motion and suggested that a telephone call to the testing centre which had taken DNA samples from Carter and Preston would be able to establish that they had, indeed, given DNA samples. Counsel also suggested that terms could be agreed for a consent order, leaving to the trial judge to determine who should pay for a second DNA test to be performed on the sample provided by the Toronto Medical Coroner.

[22] Despite settlement discussions that spanned more than one month, the parties failed to resolve their disputes: the applicants had not been provided with an affidavit from Carter confirming that and how she had provided her and Preston’s DNA and Carter refused to accept that the DNA taken from the Necklace belonged to the Deceased.

[23] On August 27, 2021 the applicant served a 15-page factum.

[24] Carter suggests that at no time prior to the motion did the applicants accept that she and Preston had provided a DNA sample despite having been provided with an affidavit from Carter sworn August 19, 2021 saying that she had done so and the affidavit of Patricia Adams, a legal assistant in the law office of Carter’s counsel sworn August 30, 2021 providing an email from Bayshore Health confirming that it possessed DNA samples taken from Carter and Preston on July 27, 2021 ready to be “sent off” when required.

[25] Carter submits that the applicants’ motion did not need to be argued as she provided proof that both she and Preston had provided a DNA sample.

[26] In his email of August 29 2021, counsel for Carter confirmed receipt of the applicants’ factum for the motion and stated that his client could agree on the draft order proposed by the applicants (and as attached to the applicants’ offer to settle) except for the term requiring a further DNA sample from Carter and Preston, who had had already supplied a DNA sample.

[27] The respondent submits that the respondent did her best to try to work through unresolved issues and that she should be entitled to her costs of the motion.

The Law

[28] The general principles applicable to party and party costs are well settled. The successful party is presumptively entitled to its costs, which are in the discretion of the court. (Courts of Justice Act, RSO 1990, c. C.43, s. 131(1) “the CJA”)

[29] Rule 57.01 of the Rules of Civil Procedure sets out factors I may consider in exercising my discretion:

Factors in Discretion

57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs. R.R.O. 1990, Reg. 194, r. 57.01 (1); O. Reg. 627/98, s. 6; O. Reg. 42/05, s. 4 (1); O. Reg. 575/07, s. 1.

[30] Overall, the objective is to fix an amount that is fair and reasonable, having regard for, among other things, the expectations of the parties concerning the quantum of costs: Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634, 71 O.R. (3d) 291 (C.A.) at paras. 26, 38.

[31] In fixing costs, the overriding principle is that of reasonableness (Boucher, at para. 27).

Analysis

[32] Based on my review of the materials provided in the parties’ cost submissions, I conclude that, while Carter and Preston had provided DNA samples, they had not complied with the MacNeil Order which states at para. 15 c. that “after agreement on the DNA testing facility is reached, the respondent [Carter] shall book a date for DNA testing of the child [Preston] without delay. Subject to the availability of the testing facility, the testing shall take place within 14 days of completion of the intake process.”

[33] While there is evidence that Carter and Preston provided a DNA sample to Bayshore Health, there is no evidence that Carter booked a date for DNA testing of Preston with The DNA Lab. In fact, the evidence suggests the opposite: Carter refused to submit DNA samples to The DNA Lab because she disagreed with the source of the comparison DNA.

[34] I accept that Lantz chose to proceed with DNA testing of the Necklace without consultation with Carter, however, I find that it was unreasonable for Carter to refuse to provide The DNA Lab with DNA samples from her and Preston, on the basis that the DNA taken from the Necklace did not belong to the Deceased. That discrete issue could have been resolved by the court, as had been suggested by Carter’s counsel. In any event, in their Offer to Settle, the applicants agreed to request a copy of the Tissue be sent to The DNA Lab.

[35] It appears that the main reason that Carter did not accept the applicants’ Offer to Settle was that it would have required Carter to attend with Preston at The DNA Lab in Guelph, to provide a DNA sample, when she and Preston had already provided samples of their DNA to Bayshore Health. Carter knew that the applicants did not accept that she and Preston had provided samples of their DNA and that on August 24, 2021 the applicants had been informed by The DNA Lab that Carter had cancelled her appointment (Postnikoff affidavit, para. 15, and Ex. “L”). After receipt of the Postnikoff affidavit, Carter serves the affidavit of Patricia Adams dated August 30, 2021, providing provides proof that Bayshore Health has Carter and Preston’s DNA samples.

[36] The correspondence between counsel supports a finding that they recognized that a court order would be required to resolve the impasse. While after the motion is served, Carter suggests that she might be agreeable to some of the terms of the order proposed by the applicants in their Offer to Settle, she did not do so, nor did she serve her own Offer to Settle. Rather, she maintained her position that the most valid and reliable DNA could come only from the Tissue.

[37] The order that was granted removes the term suggested by the applicants that would have required Carter and Preston to provide a second DNA sample and to do so directly to The DNA Lab. However, the order also expanded the testing to be done to include a maternity test – not contemplated in the MacNeil Order – nor offered by Carter. Also, it contemplates the DNA testing to be based on DNA taken from the Necklace and only in the event that the results show that Preston is not the biological daughter of the Deceased, is Lantz required to authorize the Toronto Coroner to provide the Tissue to The DNA Lab. Finally, the cost of that second test is to be borne by Carter at first instance rather than by the applicants, as had been proposed in their Offer to Settle.

[38] Overall, I find that the applicants were the more successful party on the motion and entitled to costs.

[39] I next consider whether the applicants’ Offer to Settle entitles them to costs on a higher scale. Without repeating what is set out above, I conclude that the applicants did better on some issues – i.e. the costs of the testing – but did not obtaining an order that Carter and Preston attend at The DNA Lab. However, that the applicants did not pursue that term of their proposed order may be explained by the fact that on August 30, 2021 Carter provided independent verification that she and Preston had provided a DNA sample that was ready to be sent for testing. Overall, I conclude that the applicants acted reasonably in bringing the motion and the order granted is as good as or better than the applicants’ Offer to Settle.

[40] I now consider the principles of reasonableness and expectations of the parties as per Boucher, which must guide every costs award.

[41] In determining the amount in costs that is reasonable in this case, I have considered the Costs Outline submitted by Carter. It shows actual fees of $7,144.43. As the responding party on the motion, it would be expected that the Carter’s costs would be somewhat less than those incurred by the applicants. However, even the figure arrived at using a blended partial/substantial indemnity rate, the amount claimed by the applicants is more than double the fees recorded by Carter’s counsel.

[42] I have also considered the r. 57.01 factors that have been addressed in the Costs Outlines submitted by both parties. Of particular significance is the acknowledgement by both parties that the amount claimed in the proceeding is $62,841.54.

[43] By August 27, 2021, it should have been apparent to both parties that there was essentially only one contentious issue: what would be the source of the Deceased’s DNA? That simple and narrow issue was readily resolved by the court at the hearing.

[44] I find that the voluminous affidavits and factum filed by the applicants were excessive in the circumstances and, as a result, the costs claimed by the applicants are not within the reasonable contemplation of the amount Carter might have expected to pay as the losing party on the motion.

[45] Finally, I consider that the applicants claim only $200 for the appearance on the motion and that the balance of the costs claimed relates to the paper record. The applicants’ Offer to Settle contemplated that, if accepted, the costs of the motion would be determined by the judge hearing the application. On that basis, had the Offer been accepted, the costs avoided by not having a hearing would be limited to the time spent on the court appearance and incurred after August 24, 2021.

Disposition

[46] I have considered the evidence, the parties’ costs submissions, and the factors applicable to a determination of costs. I conclude that the costs claimed by the applicants are excessive both in terms of the time spent, and, more importantly, in view of the very modest amount of money in dispute. I also conclude that the amount claimed by the applicants exceeds an amount that the respondent would reasonably have expected to pay on the motion.

[47] In the exercise of exercise of my discretion under section 131 of the Courts of Justice Act, R.S.O. 1990,c. C.43, and having considered and applied the principles set out under r. 57.01, I fix the applicants’ costs at $5,500 plus HST of $715, together with disbursements in the amount of $998, for a total award of $7,213.

Date: October 6, 2021 Justice L. Sheard

COURT FILE NO.: CV-21-75802

DATE: 20211006

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Deanna Lantz A.K.A. Deanna Muzzi and Aleisha Lantz-Giannini

Applicants

• and –

Evan Carter

Respondent

COSTS DECISION

SHEARD J.

Released: October 6, 2021