Marttunen v. McDevitt, 2023 ONSC 1323

Marttunen v. McDevitt, 2023 ONSC 1323

Court File and Parties

COURT FILE NO.: CV-22-030-000 DATE: 2023-02-23

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Mary Maureen Marttunen, Applicant v. Raymond McDevitt and Helen McDevitt, Respondents

HEARD: In writing

BEFORE: Fitzpatrick J.

COUNSEL: J. Clark, for the Applicant Self Represented Respondents

Endorsement on Costs

1On January 9, 2023, I released a decision in this matter (Marttunen v. McDevitt, 2023 ONSC 208). In that decision I awarded costs of the application in favour of the Applicant Maureen Marttunen (Maureen) against the Respondent Raymond McDevitt (Raymond). Parties were invited to make written submissions as to costs. Maureen submitted her costs submission within the time frame set out by the Court. Raymond did not. Raymond did not submit any materials with respect to costs.

2Maureen requests costs be fixed in the amount of $22,720.50 for fees, $1,728.35 for disbursements and $2,953.66 for taxes. The total requested on a substantial indemnity basis is $27,543.23.

3I agree with the costs submission of Maureen. The matter was complex. It involved six years of bank records. It involved a proven allegation of misappropriation of over $400,000.00 from a vulnerable elderly person to whom Raymond owed a fiduciary duty. Raymond’s conduct was egregious. I agree with the direction of this court in Brown Estate v. National Trust, 2004 ONSC 26366 that when dealing with breaches of fiduciary duty, misappropriation and defalcation, the courts may award substantial indemnity costs due to the nature of the conduct giving rise to the actions of the party against whom costs are ordered.

4Mr. Clark’s time spent and hourly rate on the file is appropriate for the matters at issue and his years at the bar. Mr. Clark appeared on a number of occasions before the Court. Counsel was initially involved on behalf of Raymond. Both counsel worked to streamline what would have otherwise taken a great deal more court time. This work was to the benefit of both parties. The matter did pose some moderately complex legal issues. In my view, the quantum requested is consistent with what a party whose conduct was egregious should expect to pay after contesting a matter in which their conduct was so clearly contrary to the best interests of a related family member who had trusted Raymond to act as a power of attorney.

5Order to go fixing costs of the application in the amount of $27,543.23 inclusive of disbursements and HST payable forthwith by Raymond McDevitt to Mary Maureen Marttunen.