Endorsement

Date: August 10, 2022

FOR THE PLAINTIFF:
BRIAN DUXBURY

FOR THE DEFENDANT:
J. FIGLIOMENI

The plaintiffs brought a motion requiring the defendants to Pass the Accounts for this Estate matter. The plaintiffs now request that the motion be “deferred” so that unanswered questions and concerns may first be addressed. If the answers are satisfactory, the costs of Passing the Accounts may be unnecessary.

The plaintiffs now consent to a dismissal of the claim as against Kathleen Anne Whaling but ask that the costs be reserved until the conclusion of the action.

The parties now agree that it is appropriate to have the legal file of John Walker Spears produced to June 18, 2015.

There have been six adjournments of this motion – four at the request of the plaintiffs and two by the defendants. To continue prolonging the matter is not in the interests of justice. The defendants have incurred significant legal expenses, which are being paid the Estate and thereby depleting the assets for the beneficiaries. It is appropriate to dismiss the motion on a without prejudice basis. The plaintiffs may renew their motion at a later date, if they determine it is appropriate.

The defendants are entitled to their costs, and they are entitled to be paid forthwith.

The costs related to the dismissal of the action against Kathleen do not appear to be unreasonable. The Bill of Costs seeks just over $5,100 for preparing the Statement of Defence and the motion to dismiss the claim. The work was distributed among lawyers with variable billing rates. Having regard to the importance and complexity of the issues, the fees sought are reasonable and proportionate. The plaintiffs shall pay $5,100 in fees, disbursements and HST for the dismissal of the action against Kathleen.

The Costs Outline of the defendants on the motion to pass accounts seeks the all inclusive amount of $16,156.27. The plaintiffs submit this is excessive. I disagree. The matter has been pending before the Court for over a year. Cross-examinations were conducted and extensive motion materials were required. The plaintiffs engaged Mr. Duxbury in June and have incurred in excess of $6,000 in just 8 weeks. Counsel for the defendants has been engaged from the outset. In the circumstances, it must have been within the reasonable contemplation of the plaintiffs that the fees incurred by the defendants would be as presented. The motion was complicated, and it was important. The affidavit evidence challenged the integrity of the defendants. The several adjournments added to the costs of all parties. Having considered the factors outlined in Rule 57, I am satisfied the costs sought by the defendants are appropriate. The plaintiffs shall pay $16,156.27 in costs to the defendants David Gerald Whaling and Raymond Neil Whaling, in their capacity as Estate Trustees.

The motion is dismissed on a without prejudice basis.

(Original signed by)

J. E. Mills, J.