COBOURG COURT FILE NOS.: CV-22-13 and CV-22-124
DATE: 20231101
SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: CV-22-13
RE: Nigel Jackson, Applicant
AND:
Lori Rosenberg, Respondent
COURT FILE NO.: CV-22-124
AND RE:
Lori Rosenberg, Applicant
AND:
Nigel Jackson and Nigel Jackson, Estate Trustee of the Estate of Bernard Taube, Respondents
BEFORE: The Honourable Mr. Justice R.E. Charney
COUNSEL: M. Gosia Bawolska, Counsel for the Applicant (CV-22-13)/Respondents (CV-22-124)
Mobina Basiri, Counsel for the Respondent (CV-22-13)/Applicant (CV-22-124)
HEARD: In-Writing
COSTS ENDORSEMENT
[1] On July 28, 2023, I issued Reasons for Decision in the above applications. Mr. Jackson was the successful party in these proceedings. The final order provides:
THIS COURT ORDERS THAT Mr. Jackson’s severance of the joint tenancy of the property municipally known as 15 Potts Lane, Port Hope, Ontario, on September 9th, 2020, is valid.
THIS COURT ORDERS THAT Ms. Rosenberg holds her 50% share of the Property as a tenant-in-common in a resulting trust in favour of Mr. Jackson during his lifetime.
THIS COURT ORDERS THAT Mr. Jackson retains all rights and interests in the Port Hope property during his lifetime and is free to encumber or sell the Property.
THIS COURT ORDERS THAT when Mr. Jackson dies, his 50% share of whatever equity remains in the Port Hope property will become part of his estate.
THIS COURT ORDERS THAT when Mr. Jackson dies, Ms. Rosenberg’s 50% share of whatever equity remains in the Port Hope property will pass to her through the right of survivorship.
THIS COURT ORDERS THAT Ms. Rosenberg’s claim for a declaration that there was a mutual will agreement between Bernard Taube and Nigel Jackson is hereby dismissed.
THIS COURT ORDERS THAT any claims against Mr. Jackson as the estate trustee of Bernard Taube are hereby dismissed.
[2] The parties were invited to file written costs submissions in para. 134 of the decision:
The issue of costs is reserved. If the parties are not able to agree on costs, Mr. Jackson may file costs submissions of no more than 3 pages, plus costs outline and any offer to settle, within 20 days of the release of this decision, and Ms. Rosenberg may file responding costs submissions on the same terms, within a further 15 days.
[3] On August 17, 2023, counsel for Mr. Jackson filed his costs submissions. Mr. Jackson seeks costs in the amount of $23,740.
[4] He argues that he served a Rule 49 Offer to settle both applications on March 24, 2023, offering to pay to Ms. Rosenberg $25,000, pre-judgment interest and reasonable costs and disbursements in return for the transfer of the Potts Lane property to Mr. Jackson. The offer was not accepted.
[5] Also on March 24, 2023, Mr. Jackson made an informal offer to Ms. Rosenberg to settle both Applications for $35,000 all-inclusive and return for the transfer of all her interest in the property to Mr. Jackson. The informal offer was open for acceptance until one minute after the start of the cross-examination of any of the parties or until 10:00 a.m. on April 28, 2023, whichever was the earlier. The informal offer was not accepted.
[6] Mr. Jackson seeks partial indemnity costs to the date of the Rule 49 Offer, and substantial indemnity costs from the date of his March 24, 2023 Rule 49 Offer.
[7] The relevant subsections of Rule 49(10) provide:
Costs Consequences of Failure to Accept Plaintiff’s Offer
49.10 (1) Where an offer to settle,
(a) is made by a plaintiff at least seven days before the commencement of the hearing;
(b) is not withdrawn and does not expire before the commencement of the hearing; and
(c) is not accepted by the defendant,
and the plaintiff obtains a judgment as favourable as or more favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer to settle was served and substantial indemnity costs from that date, unless the court orders otherwise.
Burden of Proof
(3) The burden of proving that the judgment is as favourable as the terms of the offer to settle, or more or less favourable, as the case may be, is on the party who claims the benefit of subrule (1) or (2)
[8] In this case, the issue is whether Mr. Jackson has obtained a judgment as favourable or more favourable than the terms of the offer to settle.
[9] Mr. Jackson argues that the judgment obtained is more favourable than his offer to settle because Ms. Rosenberg’s beneficial interest in her 50% share of the property is contingent on Mr. Jackson not selling or otherwise encumbering the property before he dies. Ms. Rosenberg is entitled to 50% of whatever equity remains in the property when Mr. Jackson dies. That may or may not be worth more than the $25,000 offered by Mr. Jackson. As Mr. Jackson’s counsel colourfully puts it:
[F]ollowing the Court’s decision there is no “bird in the hand” for Ms. Rosenberg, there is only “a bird in the bush” and that bird may be gone by the time Mr. Jackson passes. She would have been better off, and less Court time would have been used, if she had accepted the offer.
[10] In my view, the value of Mr. Jackson’s offer to settle must be assessed at the time of judgment. On July 28, 2023, Mr. Jackson owned the Port Hope property, and Ms. Rosenberg’s 50% share through the right of survivorship was worth more than $25,000. It may be worth nothing by the time Mr. Jackson dies, or it may be worth considerably more. My decision must be based on the present, albeit contingent, value. As such, Rule 49 does not apply; it is not clear that Mr. Jackson obtained a judgment as favourable as the terms of the offer to settle.
[11] Counsel for Ms. Rosenberg did not submit costs submissions. On October 26, 2023, she advised the Court that she believed that because she was appealing my decision, costs submissions were not necessary. I cannot imagine how she came to that conclusion.
[12] On October 26, 2023, counsel for Ms. Rosenberg was advised by my assistant that if she intended to file cost submissions, she should do so within 5 days (October 31, 2023). Since her costs submissions were due on September 1, 2023, this amounted to a two-month extension.
[13] By November 1, 2023, no costs submissions were received from Ms. Rosenberg.
Conclusion
[14] Mr. Jackson is entitled to his costs on both applications on a partial indemnity basis. Given the issues raised in the two applications, the hours claimed by counsel for steps such as cross-examinations, research and drafting of the factum appear to be entirely reasonable.
[15] Costs fixed at $17,400, payable by Ms. Rosenberg within 45 days.
Justice R.E. Charney
Date: November 1, 2023