COURT FILE NO.: CV-21-00001606-00OT (Chatham)

DATE: 2022-05-31

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Gerald Edward Williams, also known as Ted Williams, Applicant

AND:

Penelope Provost, personally and as Estate Trustee of the Estate of Sarah Ellen Williams, Daniel Williams, and Bradley Oliver Williams, personally and as Estate Trustee of the Estate of Sarah Ellen Williams, Respondents

BEFORE: Howard J.

COUNSEL: Lou-Anne F. Farrell, for the Applicant

James E.S. Allin, for the Respondent Penelope Provost

Jeffrey W. Nanson, for the Respondent Daniel Williams

William W.N. Fawcett, for the Respondent Bradley Oliver Williams

HEARD: Written submissions

COSTS ENDORSEMENT

Overview

[1] In my endorsement released February 10, 2022,[^1] I allowed a motion brought by the respondent Penelope Provost, personally and as Estate Trustee for the estate of Sarah Ellen Williams, for an order pursuant to subrule 13.1.02(2) of the Rules of Civil Procedure,[^2] transferring a proceeding, bearing London court file no. CV-21-00001606-0000, from London to Chatham.

[2] Pursuant to the endorsement of Rady J. dated November 29, 2021,[^3] and consistent with para. 51 of the Consolidated Provincial Practice Direction, the motion to transfer was heard in writing as an opposed motion.

[3] On February 2, 2022, I was designated by Thomas R.S.J. to hear and determine the motion, consistent with the previous endorsement of Grace J. dated December 21, 2021.

[4] In para. 98 of my endorsement, I fixed a schedule for delivery of the parties’ costs submissions in the event that they were unable to agree on the question of costs, as follows:

That said, if the parties are unable to agree on costs, …

a. Penny shall deliver her submissions within twenty (20) days following the release of these reasons.

b. The responding parties shall deliver their submissions within twenty (20) days following service of the submissions of Penny.

c. Penny shall deliver her reply submissions, if any, which shall be limited to no more than three (3) double-spaced pages, within five (5) days following service of the last of the responding parties’ submissions.

d. If any party fails to deliver their submissions in accordance with this schedule, they shall be deemed to have waived their rights with respect to the issue of costs, and the court may proceed to make its determination in the absence of their input or give such directions as the court considers necessary or advisable.

[5] The parties have been unable to agree on the costs of the motion.

[6] In accordance with the prescribed schedule, counsel for the respondent Penelope Provost (“Penny”) delivered her costs submissions on February 25, 2022; counsel for the applicant, Gerald Edward Williams (“Ted”), and counsel for the respondent Bradley Oliver Williams (“Brad”), delivered their respective submissions on March 16, 2022; counsel for the respondent Daniel Williams (“Dan”) delivered his submissions on March 17, 2022; and counsel for Penny delivered her reply submissions on March 18, 2022.

[7] I have read and considered all the submissions received, including the costs outline submitted on behalf of Penny.

[8] Penny seeks payment of her costs of the motion on a substantial indemnity basis “or perhaps a full indemnity basis.”[^4] Penny’s costs outline indicates that her costs on a full indemnity basis amount to $11,877.13. Penny submits that the costs award should be paid by Ted and Brad on a joint and several basis.

[9] Ted submits, inter alia, that there should be no order as to costs because he did not act unreasonably in initially choosing London as the venue for the hearing of his application and because, he submits, there was effectively divided success on the motion.

[10] Brad submits, inter alia, that where, as here, a motion to transfer the venue is granted on the basis of the balance of convenience, the usual order is costs in the cause. Brad submits that costs of the motion should be fixed in the range of $2,324.40, payable in the cause.

[11] Dan submits that because he took a neutral position on the motion to transfer, there should be no order made for costs as against him in any event. In her reply submissions, Penny agrees that there should be no order as to costs against Dan in view of his neutral position.

Governing Legal Principles

[12] In Ontario, cost awards in civil law matters are governed by s. 131 of the Courts of Justice Act[^5] and, in most cases, rule 57.01 of the Rules of Civil Procedure.

[13] Subsection 131(1) of the Courts of Justice Act confers upon the court a general discretion to determine costs, in the following terms:

Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[14] It has been said that making an award of costs is inherently an exercise of judicial discretion. Indeed, the Supreme Court of Canada and our Court of Appeal have held that, “costs awards are ‘quintessentially discretionary.’”[^6]

[15] That said, the discretion conferred by s. 131(1) of the Courts of Justice Act is expressly made subject to the “rules of court.” Rule 57 of the Rules of Civil Procedure deals with the awarding and fixing of costs in civil proceedings and provides guidance in the exercise of the court’s discretion by enumerating circumstances and factors that the court may consider when determining costs. In this regard, subrule 57.01(1) provides that:

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;

(h.1) whether a party unreasonably objected to proceeding by telephone conference or video conference under rule 1.08; and

(i) any other matter relevant to the question of costs.

[16] The indemnification of the successful party is a paramount objective – but not the only one – to be served by a costs order.[^7] Our Court of Appeal has recognized that: “[m]odern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants.”[^8]

[17] In DUCA Financial Services Credit Union Ltd. v. Bozzo, Cumming J. described the “normative approach” to costs awards in Ontario as follows:

… first, that costs follow the event, premised upon a two-way, or loser pay, costs approach; second, that costs are awarded on a partial indemnity basis; and third, that costs are payable forthwith, i.e., within 30 days. Discretion can, of course, be exercised in exceptional circumstances to depart from any one or more of these norms.[^9]

[18] In fixing the amount of costs to be awarded, the court’s objective is not to reimburse a litigant for every dollar spent on legal fees. “The fixing of costs is not a bookkeeping exercise.”[^10] Rather, in exercising its discretion, a court must produce a result that is fair and reasonable in all the circumstances.[^11] The “overriding principle is reasonableness.”[^12]

[19] As the Ontario Court of Appeal observed in its leading decision in Boucher v. Public Accountants Council (Ontario): “[o]verall, as this court has said, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.”[^13]

[20] The court should also consider the totality of the costs award to ensure that it is not disproportionate to the amount recovered.[^14] That is consistent with the directive of subrule 1.04(1.1) of the Rules of Civil Procedure that in applying the rules, “the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.” That said, while the consideration of proportionality “is necessary to the soundness of any costs award and to ensure the health of the justice system,” the overarching principle remains that the order for costs must be fair and reasonable.[^15]

[21] I am guided by these governing principles here.

Analysis

Presumptive entitlement

[22] The applicant, Ted, submits that each party should bear their own costs primarily because there was divided success. Respectfully, I disagree. The central issue in dispute was the motion to change venue, and that issue consumed the bulk of my reasons. The other procedural claims were minor and peripheral.

[23] As I have reviewed above, the indemnification of the successful party is a paramount objective in making costs awards, and the “normative approach” in Ontario is that costs should follow the event.

[24] Penny was successful on the central issue and is presumptively entitled to her costs.

The scale of the award

[25] As I have said, Penny seeks an award of costs on a substantial indemnity “or perhaps full indemnity” basis. However, I am not persuaded by Penny’s submissions that an award of costs on any elevated scale is appropriate here.

[26] Penny’s cost submissions are focussed, primarily, on the conduct of Ted.

[27] First, Penny submits that her motion was necessary “because Ted incorrectly filed his [a]pplication at the London Court House rather than the Chatham Court House.”[^16] Penny submits that, based on a review of my reasons on the motion, she is able to say that Ted “incorrectly” filed his application in London.[^17] Respectfully, I would have thought that the opposite is true. Far from permitting Penny’s argument, my reasons on the motion, in my view, foreclose Penny’s argument. That is, I expressly found that, pursuant to subrule 13.1.01(2), “Ted was entitled to commence this proceeding at any court office in the Province of Ontario.”[^18]

[28] Moreover, I expressly stated that my ruling is based “on the assumption that the applicant’s [Ted’s] decision to commence his application in London was not unreasonable.”[^19] Where the court has said that the decision to commence the application in London was not unreasonable, I am unable to see how one can properly interpret the court’s reasons as suggesting that the application was “incorrectly” commenced in London.

[29] Second, Penny submits that Ted’s conduct in dealing with her motion to transfer is consistent with her characterization of him as a “bully.”[^20] Penny points to what she takes to be Ted’s “unreasonable and persistent refusal” to consent to her motion to change venue.[^21] Penny claims that Ted’s conduct warrants “early condemnation” from the court.[^22] Penny argues that an award of costs on an elevated scale “will actually be of assistance to Ted to recognize that the court disapproves of his handling of the litigation to date and it is time for him to assert a new and more co-operative course.”[^23]

[30] These submissions must fail for at least two reasons. First, there is no evidence before this court on this motion that Ted has engaged in conduct that one could fairly characterize as bullying. It would seem obvious that there is a high degree of animosity between Penny and Ted. And I suspect that, in ultimately determining the issues in this proceeding on their merits, the court will likely hear evidence from both parties complaining about the conduct of the other. But for present purposes, the evidentiary record on the motion before me does not permit me to conclude that Ted has engaged in bullying or such other conduct warranting the court’s condemnation or sanction.

[31] Second, as I referenced in my ruling on the motion, it seems to me that Ted’s reason for opposing the motion to transfer the proceeding from London to Chatham was largely a function of Ted having already obtained a special appointment date in London in March 2022 to have the issue that was and is most pressing for Ted heard and determined – that is, the enforcement of the option contained in para. 5(c) of the Last Will and Testament of the parties’ mother, the late Sarah Ellen Williams, dated March 25, 2020, which option would allow Ted to purchase what was called the “home farm.” As I said in my ruling on the motion:

At present, a special appointment hearing has been scheduled in London for March 2, 2022, for the hearing of Ted’s application on the issue (only) of the enforcement of the Option. As I say, that is the primary concern of Ted, and it largely drives his opposition to Penny’s change in venue motion.[^24]

[32] On my review of the material on the motion, the primary issue for Ted has always been the enforcement of the option. Further, he has always viewed that issue as time-sensitive. The parties attended before Rady J. at the end of November 2021, and it was then that Rady J. secured the March 2022 date for the hearing of that issue. And so, Ted already had the March 2022 date in hand when, some weeks later, Penny served her motion to transfer. Ted wanted the issue of the enforcement of the option heard and determined as quickly as possible. It is clear to me that was the driving force underlying his opposition to Penny’s motion and not some alleged desire to capitalize on an opportunity to bully Penny. Ted’s position, obviously, did not prevail in the end. But that does mean that he engaged in bullying or unreasonable behaviour in opposing the motion. In any event, as I have said, there is no evidence of such conduct on the record before me on this motion.

[33] As Leach J. explained in the decision of the Divisional Court in Snowden v. The Corporation of the Township of Ashfield-Colborne-Wawanosh, although the court has a broad discretion in relation to costs, our appellate courts have repeatedly emphasized that an award of costs on a partial indemnity basis generally strikes the proper balance between the cost benefits to be enjoyed by the successful litigant and the cost burdens to be borne by the unsuccessful party, and that elevated cost awards should be reserved for “rare and most exceptional” cases where the conduct of a litigant warrants condemnation by the courts.[^25]

[34] In its 2018 decision in Mars Canada Inc. v. Bemco Cash & Carry Inc., our Court of Appeal again affirmed that “costs on a substantial indemnity basis should be awarded only ‘where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties’.”[^26]

[35] On the record of evidence before me on this motion, Penny has simply failed to establish that either Ted or Brad engaged in any reprehensible, scandalous, or outrageous conduct as might warrant an award of costs on any elevated scale. As such, I am satisfied that, considering the totality of the material before me, the instant case is not one of those “rare and exceptional” cases where one may conclude that an award of substantial or full indemnity costs is justified.

[36] I therefore conclude that costs of the motion should be fixed on a partial indemnity scale.

The factors under subrule 57.01(1)

[37] I have considered all of the factors enumerated in subrule 57.01(1) of the Rules of Civil Procedure, not all of which are equally relevant in the instant circumstances (or at all). As such, I do not propose to specifically address each of the factors below.

[38] As I have said, Penny claims, on a full indemnity basis, the total amount of $11,877.13. Even on a partial indemnity basis, the total amount claimed is $9,471.59, being comprised of $8,203.80 for fees and $1,267.79 on account of disbursements.

[39] I am unable to conclude that a cost award of some $9,500 in favour of Penny constitutes a fair, reasonable, or proportionate amount in the circumstances of the instant motion. On the contrary, I find that amount excessive in the circumstances. This was not a complicated motion. It was a straightforward procedural motion that was heard in writing. The moving party filed one short affidavit with no exhibits other than the application records in the two companion proceedings. There was no cross-examination on the affidavits. Nor did the motion involve any legally complex issues. The test applicable to a motion to change venue is well known. There was no oral argument.

[40] Moreover, the adjudication of the motion was unnecessarily made more complicated by reason of the conduct of the moving party. As I referenced in my ruling on the merits,[^27] the moving party brought more than one motion to transfer the London application to Chatham. See, inter alia, the moving party’s motion record dated December 14, 2021, and her motion record dated January 18, 2022, where essentially the same relief is claimed.[^28] The reasons for the duplication are not readily apparent.

[41] In the circumstances, I agree with the observations of Ms. Farrell, counsel for Ted, that:

Much of the time claimed on this motion appears to overlap with the three additional motions that the Moving Party brought for the same, or similar, relief (see Chart attached as Schedule “B”). This multiplicity of proceedings caused unnecessary confusion and complication, which drastically increased the costs of the other parties.[^29]

[42] I am also of the view that there is merit in the submissions of Mr. Fawcett, counsel for Brad, that the hours detailed in Penny’s cost outline include various entries for attendances in court, and as this was a motion heard in writing, those attendances were not necessary.[^30] In my view, the respondents ought not to bear the cost for same.

[43] In particular, it is apparent that Penny’s cost outline claims costs for the attendance before Rady J. in November 2021. However, Rady J. made no order as to costs in respect of the attendance before her. When an endorsement or order dealing with an interlocutory step in a proceeding is silent as to costs, it is, in effect, an order for no costs, and costs not awarded in relation to that interlocutory step cannot be claimed later.[^31]

[44] Having said all of that, I take no objection to the partial indemnity hourly rate claimed. In my view, the partial indemnity rate of $275 per hour is, in my view, a fair and reasonable rate for a lawyer of Mr. Allin’s 43 years of experience.

[45] Having considered, inter alia, the submissions of the parties and the costs outline of Penny, the relevant factors enumerated in subrule 57.01(1) of the Rules of Civil Procedure, and the principles that should guide the court’s exercise of its discretion under s. 131 of the Courts of Justice Act to award costs, I find that the amount of $2,500, all inclusive, represents a fair, reasonable, and proportionate costs award in the circumstances of this procedural motion in writing.

[46] Accordingly, I fix the quantum of Penny’s costs of the motion, on a partial indemnity basis, in the amount of $2,500, all inclusive.

[47] Counsel for Brad makes the point that where a motion to transfer is granted on the balance of convenience, the usual order is for costs in the cause.[^32] In my view, the submission is instructive at least insofar as the question of timing of payment is concerned, and it makes sense to adopt that approach, in part, in the instant case.

[48] That is, while Penny’s motion to transfer Ted’s application (CV-21-00001606) from London to Chatham for hearing was successful, I am not satisfied, in the circumstances of the instant case, that Penny should have her costs of the motion in any event. All of Ted, Brad, and Dan consent to Ted’s claim to enforce the option allowing him to purchase the home farm – Penny is the only sibling opposed to enforcement of that provision in her late mother’s Will. I expect that the judge hearing the issues in Ted’s application will review the conduct of all the siblings in this matter and consider the merits of their respective positions. If Penny is ultimately successful on the merits of Ted’s application, then she should have her costs of the motion to transfer. However, if Penny is ultimately unsuccessful in Ted’s application, then I would not grant her costs of the motion to transfer. Ted and Brad opposed the motion to transfer the application to Chatham, were unsuccessful in that opposition, and therefore should not be awarded their costs of the motion in any event.

Conclusion

[49] Therefore, Penny shall have her costs of the motion to transfer, on a partial indemnity basis, fixed in the total amount of $2,500, all inclusive, payable in the cause of CV-21-00001606 by Ted and Brad on a joint and several basis.

[50] For greater certainty, there shall be no cost award made in favour of or against Dan.

Original electronically signed by Justice J. Paul R. Howard

J. Paul R. Howard

Justice

Date: May 31, 2022

[^1]: Williams v. Provost, 2022 ONSC 971 (S.C.J.) [Ruling on the Motion]. [^2]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194. [^3]: Williams v. Provost, 2021 ONSC 7862 (S.C.J.), at para. 14. [^4]: Cost Submissions of the Respondent Penny Provost dated February 24, 2022 [Penny’s Submissions], at para. 16. [^5]: Courts of Justice Act, R.S.O. 1990, c. C.43. [^6]: Kerry (Canada) Inc. v. Ontario (Superintendent of Financial Services), 2009 SCC 39, [2009] 2 S.C.R. 678, 102 O.R. (3d) 319, at para. 126. See also Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303 (S.C.C.), at para. 27; Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, 140 O.R. (3d) 81, at para. 43.; and Fielding v. Fielding, 2015 ONCA 901, 129 O.R. (3d) 65, at para. 67. [^7]: Watterson v. Canadian EMU, 2018 ONSC 301 (Div. Ct.), at para. 8. [^8]: Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, at para. 8, citing Fong v. Chan (1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (C.A.), at para. 22. See also 1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), 2006 CanLII 35819 (ON CA), 82 O.R. (3d) 757 (C.A.), at para. 26. Five broad purposes were identified by Perell J. in Sheppard v. McKenzie, [2009] O.J. No. 3677, 2009 CanLII 46175 (S.C.J.), at para. 17. [^9]: DUCA Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601 (S.C.J.), at para. 5. [^10]: Bondy-Rafael v. Potrebic, 2019 ONCA 1026, 441 D.L.R. (4th) 658, 47 C.P.C. (8th) 245, at para. 64. [^11]: Ibid., at para. 7. See also Kuzev v. Roha Sheet Metal Ltd., 2007 CanLII 25656 (ON SCDC), 2007 CarswellOnt 4338, 227 O.A.C. 3 (Div. Ct.), at para. 6, citing Murano v. Bank of Montreal (1998), 1998 CanLII 5633 (ON CA), 41 O.R. (3d) 222, 163 D.L.R. (4th) 21, 22 C.P.C. (4th) 235 (C.A.) [cited to O.R.], at p. 247 per Morden A.C.J.O., and Zesta Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), [2002] O.J. No. 4495, 21 C.C.E.L. (3d) 161 (C.A.), at para. 4, and quoting Moon v. Sher, 2004 CanLII 39005 (ON CA), [2004] O.J. No. 4651, 246 D.L.R. (4th) 440 (C.A.), at para. 30 per Borins J.A. [^12]: Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66, 312 D.L.R. (4th), at para. 52. [^13]: Boucher v. Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291, [2004] O.J. No. 2634 (C.A.), at para. 26. See also Bondy-Rafael v. Potrebic, at para. 53. [^14]: R & G Draper Farms (Keswick) Ltd. v. Nature’s Finest Produce Ltd., 2016 ONCA 626, 133 O.R. (3d) 395, at para. 23. [^15]: Bondy-Rafael v. Potrebic, at para. 64. [^16]: Penny’s Submissions, at para. 2. [^17]: Ibid., at para. 3. [^18]: Ruling on the Motion, at para. 26. [^19]: Ibid., at para. 30. [^20]: Penny’s Submissions, at para. 13. And see the Reply Cost Submissions of Penny Provost dated March 18, 2022 [Penny’s Reply Submissions], at para. 2. [^21]: Penny’s Reply Submissions, at para. 6. [^22]: Penny’s Submissions, at para. 15. [^23]: Ibid., at para. 16. [^24]: Ruling on the Motion, at para. 70. [^25]: Snowden v. The Corporation of the Township of Ashfield-Colborne-Wawanosh, 2018 ONSC 10 (Div. Ct.), at para. 30, citing Foulis v. Robinson (1978), 1978 CanLII 1307 (ON CA), 21 O.R. (2d) 769 (C.A.), and Isaacs v. MHG International Ltd. (1984), 1984 CanLII 1862 (ON CA), 45 O.R. (2d) 693 (C.A.). See also Laczko v. Alexander, 2012 ONCA 872, at para. 2 per Weiler J.A., in chambers. [^26]: Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, 140 O.R. (3d) 81, at para. 43, citing Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at p. 134. [^27]: Ruling on the Motion, at para. 1, fn. 2. [^28]: See also Schedule “B” to the Cost Submissions of the Applicant, Ted Williams dated March 16, 2022 [Ted’s Submissions], which details these and other duplications of effort. [^29]: Ted’s Submissions, at para. 12. [^30]: See the Cost Submissions of the Respondent Bradley Williams dated March 16, 2022 [Brad’s Submissions], at para. 7. [^31]: London Eco-Roof Manufacturing Inc. v. Syson, 2020 ONSC 3101, 12 C.L.R. (5th) 173 (S.C.J.), at para. 24(d)(i) per I.F. Leach J., citing M. Orkin, The Law of Costs, loose-leaf (Aurora, Ont.: Canada Law Book, 2001), at 1-15; Delrina Corp. v. Triolet Systems Inc., 2002 CanLII 45083 (ON CA), [2002] O.J. No. 3729, 22 C.P.R. (4th) 332 (C.A.), at para. 36; and Sioux Lookout (Municipality) v. Canada (Attorney General), 2010 ONSC 3721, [2010] O.J. No. 2773 (S.C.J.), at para. 24. [^32]: Brad’s Submissions, at paras. 1-2.```