Court File and Parties
COURT FILE NO.: CV-21-00450-00 DATE: 2023-07-24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jason Stanley Lee Tremblay, Plaintiff v. The Estate of Stephen Alan David Young, deceased, Claire Ellen Lajeunesse, Estate Trustee, Colleen Marian Savor, Teena Marie Fournier, Fredrick Richie Young, Sherry Lee Taylor, Autumn Louise Young, Mark Robert Young, Robert John Young, William Brian Young and Bobby Patrick Young, Defendants
HEARD: July 20, 2023
BEFORE: Pierce J.
COUNSEL: Mr. M. Smiley for the Plaintiff, Jason Tremblay Ms. A. Colquhoun for the Estate
Endorsement on Costs
[1] The plaintiff obtained an order for a certificate of pending litigation that I granted without notice to the Estate. Had I been aware of the full circumstances, including that the Estate was represented, I would not have granted the order.
[2] The facts are summarized in the Estate’s factum as follows:
- The principal asset of the Estate is a piece of property. This land was sold to a beneficiary and the proceeds of the Estate were distributed.
- Following the sale and distribution of the Estate, the plaintiff advised the Estate solicitor that he intended to advance a tort claim against the Estate.
- On April 25, 2023, the plaintiff applied to the court for a certificate of pending litigation without notice to the Estate solicitor and without advising the court that the Estate was represented.
- The Estate solicitor, Ms. Lepere, became aware of the order and contacted the plaintiff’s counsel, asking him to agree to set aside the order, and set out her grounds.
- When the plaintiff did not agree, the Estate served its motion on June 20, 2023.
- When the matter came before the court on July 20, the plaintiff consented to setting aside my order granting a certificate of pending litigation.
- The Estate now seeks partial indemnity costs of $3,073.60 on the grounds that the plaintiff should not have applied ex parte for the order, and further, should have agreed to set it aside, once asked.
[3] The Estate submits that it is entitled to its costs because:
a. it is appropriate to give notice when counsel is on the record; b. the plaintiff did not make full and fair disclosure when it sought the certificate of pending litigation: for instance, that notice of the potential claim was not given until after the property was sold; c. the plaintiff was given an opportunity to consent to the discharge of the certificate without a time-consuming motion; and d. the plaintiff ultimately conceded to set the order aside.
[4] The plaintiff submits that no costs should be ordered. He argues that:
a. the Rules of Civil Procedure entitled him to proceed without notice; b. he was concerned that the transfer of the property represented a fraudulent conveyance; c. the Estate ought to have been aware of potential tort claims; d. the Estate solicitor left him little time to consider the implications of the Estate position; e. a costs award in the range claimed would interfere with the plaintiff’s ability to fund his litigation, specifically with respect to an expert report.
[5] Rule 42.01(3) of the Rules of Civil Procedure provides that a motion for a certificate of pending litigation may be made without notice [emphasis added]. However, the better practice is that, if the client would not be prejudiced by giving notice, then notice should be given.
[6] When counsel is on the record, as was the case here, professional courtesy requires that notice should be given of an intended motion so that the very situation that occurred in this case does not occur.
[7] The adversarial system relies on counsel rigorously arguing the merits of his or her case. By advancing their client’s position, together with the evidence and law that supports it, the court has the benefit of considering all aspects of an argument. If a party’s case for an order is strong, it will withstand vigorous argument by opposing counsel. Counsel should never be afraid of having his or her arguments tested.
[8] Further, the court relies on the knowledge and expertise that counsel have with respect to their cases. It is not possible for each judge to know everything there is to know about the law. Judges rely on counsel to bring to their attention the relevant law as it applies to the evidence, in order to reach a fair and just result.
[9] When the court is not made aware of all relevant evidence and applicable law, the court risks falling into error. The fact that the property was sold before the notice of intended claim was given belies the plaintiff’s argument that the plaintiff believed it was a fraudulent conveyance.
[10] Although the Estate solicitor requested the plaintiff’s position about setting aside the order within a couple of days, counsel agrees that he did not ask for an extension to consider his position. As well, the record supports that a motion to set it aside was not launched immediately.
[11] It is unfortunate that costs were incurred in an ill-considered exercise. Nevertheless, the Estate, having been put to the cost of setting aside the order, is entitled to its costs, which I fix at $2,500.00, inclusive of fees, disbursements, and tax, payable within 60 days.
[12] Order to issue settling aside my order of May 25, 2023, in accordance with consent order filed on Caselines.
“original signed by” The Hon. Madam Justice H.M. Pierce
DATE: July 24, 2023