COURT FILE NO.: CV-17-12-00
DATE: 2022-11-28
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
BETTY SCHEIBLER as the administrator of the estate of MILTON EDWARD WESTOVER, deceased
I. Jiwa, for the Plaintiff
- and -
JOSEPH ALLEN JOLICOUER, JOANIE MARIE JOLICOUER aka JOAN MARIE JOLICOUER, and DEBRA LEE WESTOVER-MORRISEAU
D. Judson, for the Jolicouers
R. Lepere, for Morriseau
HEARD: in writing
Mr. Justice F.B. Fitzpatrick
Decision on Costs
[1] Following a three day in person civil trial, I rendered judgment dismissing the plaintiff’s claim (see: Westover Estate v. Jolicouer et al, 2022 ONSC 4550).
[2] Written submissions were received following several post trial conferences on the issue of costs. The plaintiff concedes the defendants are entitled to substantial indemnity costs. The plaintiff disputes the quantum of costs sought. The plaintiff also disputes the defendants’ claim that the Litigation Administrator, Betty Scheibler, should be liable to pay these costs personally.
[3] Debra Westover-Morriseau (“Debra”) seeks substantial indemnity costs of $62,465.94. The defendants Joseph and Joannie Jolicouer (“the Jolicouers”) seek substantial indemnity costs of $52,233.61.
Disposition
[4] The plaintiff has very wisely conceded that substantial indemnity costs are warranted in this case. While the completely unsuccessful allegations of fraud could have led to an occasion of an award of full indemnity costs, I am not prepared to do so in this matter. However, given the result, substantial indemnity costs are appropriate for both defendants throughout. The fraud allegations were not properly pled. While this did not shield the defendants from having to respond, the allegations were serious. And baseless. Nevertheless, I do agree with the plaintiff’s submission that there should be some reduction in the quantum of costs claimed by both sets of defendants albeit for different reasons.
[5] With respect to the Jolicouers, they seek an award of $53,233.61 on a substantial indemnity basis from the beginning of the litigation. The plaintiff argues a quantum of $35,000 inclusive of disbursements and HST is fair and reasonable.
[6] I agree with the plaintiff’s submissions that some reduction is warranted because of the decision of the Jolicouers to retain new counsel towards the end of the file and for trial. While this decision was entirely up to them, there is no basis to have a losing party pay to bring new counsel up to speed. That said, I agree the rates charged by counsel for the Jolicouers on a substantial indemnity basis were very reasonable particularly for the skill and efficient approach to the litigation demonstrated by Mr. Judson. The bill of costs provided by the Jolicouers set out only the total hours expended by the two solicitors. This was not as helpful as the detailed bill of costs provided by counsel for Debra.
[7] Also, I agree with the submission of the plaintiff that the claim for “administrative charges” of $3,134.51” is not sufficiently particularized. The Jolicouers pursued a counterclaim which was dismissed. I agree with Jolicouers’ counsel that this did not take up significant trial time, nevertheless it was pursued unsuccessfully.
[8] In addition to the above, a principle of proportionality has led me to reduce the quantum of costs I am prepared to award the Jolicouers.
[9] Accordingly, I fix the total quantum of costs for the Jolicouers as $45,000.00 inclusive of disbursements and HST.
[10] With respect to Debra, she seeks an award of substantial indemnity costs of $62,465.93 inclusive of disbursements and HST. The plaintiff argues a quantum of $45,000.00 all-inclusive is just in the circumstances.
[11] The plaintiff points out that Debra had previously brought an unsuccessful motion seeking to dismiss the claim on the basis it was brought with lack of authority. Newton J. in dismissing the motion on July 27, 2017 noted at paragraph 30 of the decision “in the circumstances, the costs of the motion shall be in the discretion of the disposing judge. That judge will be in a far better position than I am to determine who equity favours” (Westover v. Jolicouer et al, 2017 ONSC 4544).
[12] I agree with Newon J.’s observation.
[13] An order dismissing the claim at that point, 2017, would have been the right decision for the wrong reasons, at least as it was framed in the motion before the Court at that time.
[14] I appreciate Debra’s motivation in bringing the motion at that point in the litigation. However, I don’t think she ask for the plaintiff to pay costs for that specific motion.
[15] The Court appreciated the detailed bill of costs provided by Debra. From that bill it can be deduced that from June 7, 2017, to June 27, 2017, counsel for Debra was engaged in bringing forward the motion to dismiss on the basis of a lack of authority. At that time, Ms. Lepere’s rate was $250 an hour on a substantial indemnity basis. I pause to comment that is a very reasonable rate given the skill and ability of Ms. Lepere at that point in her career. Doing straight math multiplying the time spent by Ms. Lepere times her hourly rate for that period yields $2,400.00 in cost (9.6 hours X $250).
[16] Debra has also included costs for a junior solicitor and a clerk. In this case, there is no doubt Ms. Lepere did a great deal of work which was of assistance to all parties and the court in streamlining this matter so the trial could be conducted in an efficient manner. The work of the junior solicitor and the clerk no doubt assisted in that effort. However, while this case did present as moderately complex due to the extended time frame over which the essential facts occurred, I am not prepared to award dollar for dollar the work of these two others. I do this in recognition of the express provision of Rule 57.01(b).
[17] For these reasons I fix costs for Debra at $55,000.00 inclusive of disbursements and HST payable by the plaintiffs as directed below.
[18] Counsel for the defendants seek an order that all costs awarded are to be paid by Betty Scheibler (Betty) personally. Plaintiff’s counsel advocates that all costs be paid by Milton’s estate.
[19] I have found that Betty’s evidence was completely self-serving and unpersuasive. I have found that Betty would personally benefit from continuing with the litigation after Milton’s death. She took this litigation forward as litigation administrator pursuing claims that I found to be without merit. She was pursuing a position that was largely to her benefit. Since the decision of D.M. Brown J. (as he then was) in Re Salter v. Salter Estate 2009 Can LII 28403 (ONSC) the apt metaphor that parties cannot treat the assets of an estate as a kind of ATM machine has guided many costs decisions in estate matters. Litigants in estate matters cannot rely on the backstop of the estate’s assets to pursue litigation that is not clearly in the interests of the estate.
[20] In this case, given the allegations in the claim all of which were dismissed at trial, I agree with the defendants’ submission that Betty must bear personal responsibility for directing the estate to continue to litigate once Milton died August 13, 2018.
[21] However, Milton started all of this. He started it in 2017 and gave a solicitor authority to do it as found by Newton J. in the decision cited above. Therefore, this case is unlike a traditional piece of estate litigation. Milton was a litigant for a little over a year. He directed the litigation personally until his death. Ultimately the matter he started was unsuccessful. His estate should bear a portion of the global amounts I have directed be paid previously in this decision.
[22] A review of the time dockets provided by Ms. Lepere shows she had put in approximately 53 of the 160 hours she spent on this file between May 2017 and August 2018. This is roughly 33% of the hours spent on the file. This means roughly two thirds of the work came after Milton was gone. I use this figure as a basis to apportion the liability for costs in this matter.
[23] In my view, the Estate should pay 33% of the amounts found to be owing to the defendants for costs. Betty should be personally responsible for the balance of the amounts owing for costs to the defendants.
[24] Accordingly, I order the Estate of Milton Edwin Westover to pay costs on a substantial indemnity basis as follows:
i. To Debra $18,150.00 inclusive of disbursements and HST,
ii. To the Jolicoeurs $14,850.00 inclusive of disbursements and HST,
[25] Further, I order Betty Scheibler to personally pay costs on a substantial indemnity basis as follows:
i. To Debra $36,850.00 inclusive of disbursements and HST,
ii. To the Jolicoeurs $30,150.00 inclusive of disbursements and HST.
[26] I thank all counsel for their assistance in this matter.
[27] An order respecting costs approved as to form and content may be forwarded to my judicial assistant once complete. If there are any issues in completing this order any interested party may contact my office for a further brief case conference to finalize the order.
[28] Order to go accordingly.
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
Released: November 28, 2022
COURT FILE NO.: CV-17-12-00
DATE: 2022-11-28
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
BETTY SCHEIBLER as the administrator of the estate of MILTON EDWARD WESTOVER, deceased
Plaintiff
- and -
JOSEPH ALLEN JOLICOUER, JOANIE MARIE JOLICOUER aka JOAN MARIE JOLICOUER, and DEBRA LEE WESTOVER-MORRISEAU
Defendants
DECISION ON COSTS
Fitzpatrick J.
Released: November 28, 2022