COURT FILE NO.: CV-19-38145
DATE: 2022/07/13
SUPERIOR COURT OF JUSTICE – ONTARIO
In the Estate of Helen Irene Denny also known as Irene Denny and In the Estate of Peter Leslie Denny
RE: Steve Denny, Plaintiff
AND
Michael Denny, Defendant
BEFORE: Madam Justice Robyn M. Ryan Bell
COUNSEL: Jason Dutrizac, for the Plaintiff
Miriam Vale Peters, for the Defendant
HEARD: In writing
COSTS ENDORSEMENT
[1] The parties have been unable to agree on costs of the motion and cross-motion.[^1] Steve Denny seeks costs of his motion on a partial indemnity basis in the amount of $26,625.06. Steve submits that he is entitled to his costs of the motion, less costs awarded to Michael Denny for his success on the issues of the appropriate estate trustee during litigation and reimbursement of expenses. In the alternative, Steve submits that given the mixed results, costs of the motion[^2] should be reserved to the trial judge.
[2] For his part, Michael seeks substantial indemnity costs in the amount of $25,038.54 and, in the alternative, partial indemnity costs of $18,567.56. Michael submits that he was the successful party on the motion and the cross-motion and that the motions and the balance of the litigation could have been avoided had Steve accepted Michael’s offers to settle.
[3] Costs are in the discretion of the court: Courts of Justice Act,[^3] s. 131(1). Rule 57.01(1) of the Rules of Civil Procedure[^4] lists the factors the court may consider in awarding costs. In addition to the result and any offer to settle, the factors include the principle of indemnity, the complexity of the proceeding, and the importance of the issues to the parties.
[4] The overarching principle is that costs “should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant”: Boucher v. Public Accountants Council for the Province of Ontario.[^5]
[5] In my view,
• this is not an appropriate case for an award of costs on a substantial indemnity basis. In fixing costs, I have considered Michael’s offers to settle;
• the partial indemnity costs claimed by Steve are excessive, having regard to the nature of the issues raised on the motion and cross-motion – the issues raised were of importance to the parties but were not complex;
• Steve was seeking an indulgence of the court to extend the timelines set out in the consent order of R. Smith J. The order made by the court on March 31, 2022 contained an element of compromise, including in respect of document disclosure and the need for the appointment of an estate trustee during litigation; and,
• Michael was, on balance, the more successful party as he prevailed on the issues of who should be appointed estate trustee during litigation, the scope of authority of the estate trustee during litigation, and reimbursement of his expenses. I note that although Steve had previously agreed that Michael should be reimbursed for certain expenses, no reimbursement for any of the expenses incurred by Michael was made.
[6] I do not agree with Steve’s alternative submission that costs should be reserved to the trial judge. Rule 57.03(1)(a) provides that on the hearing of a contested motion, unless the court is satisfied that a different order would be more just, the court shall fix the costs of the motion and order them to be paid within 30 days. In my view, the appropriate time to determine and fix the costs of the motion and the cross-motion is now. Steve has not persuaded me that a different order would be more just.
[7] Having regard to all of the above, I fix costs of the motion and the cross-motion in the all inclusive amount of $10,000. Steve shall pay this amount to Michael within 30 days.
Madam Justice Robyn M. Ryan Bell
Date: July 13, 2022
COURT FILE NO.: CV-19-38145
DATE: 2022/07/13
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Steve Denny, Plaintiff
AND
Michael Denny, Defendant
COUNSEL: Jason Dutrizac, for the Plaintiff
Miriam Vale Peters, for the Defendant
costs ENDORSEMENT
Justice Ryan Bell
Released: July 13, 2022
[^1]: Denny v. Denny, 2022 ONSC 3267. [^2]: And presumably, the cross-motion. [^3]: R.S.O. 1990, c. C.43. [^4]: R.R.O. 1990, Reg. 194. [^5]: 2004 CanLII 14579 (ON CA).