Court File and Parties

COURT FILE NO.: CV-21-316-00 DATE: 2024-01-05

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

FRANCES MOORE Applicant

R. Lepere, for the Applicant

- and -

KATHERINE ELIZABETH COOKE, also known as KATHERINE ELIZABETH MOORE, personally and in her capacity as Attorney for Property and Attorney for Personal Care for FRANK FREDERICK MOORE, GAIL PATRICIA HANNULA, personally and in her capacity as Attorney for Property and Attorney for Personal Care for FRANK FREDERICK MOORE and FRANK FREDERICK MOORE Respondents

M. Holervich, for Gail Hannula No-one else appearing for the other parties

HEARD: December 14, 2023, at Thunder Bay, Ontario

Mr. Justice F. Bruce Fitzpatrick

Decision On Motion

Background

[1] This is an estate matter involving a question of payment of legal fees. There is no dispute that the estate of Frank Frederick Moore (“Frank”) is going to pay legal fees that have been incurred by Gail Patricia Hannula (“Gail”). There is no dispute that these fees will be paid from trust funds currently held by Gail’s solicitor. The total of those funds is $43,800. There is no dispute that after payment of Gail’s legal fees, only one other person, Frances Moore (“Frances”) is entitled to receive the balance of the fees. In fact, because Gail’s claim for fees on this application was less than the amount in trust, at the end of the hearing I ordered an interim payment out to Frances of $8,800.

[2] It is also very important to understand that this is a matter in which all contested issues, save one, being the amount of money Gail is to be reimbursed for her legal fees, have been resolved between the parties without the need for an adjudication by the court. This agreement was achieved in September 2022. The court encourages this kind of result in the normal course. However, as a feature of the settlement, the parties left open the issues of legal fees to be paid from one side to the other. This was reflected in an order approving the settlement made by Warkentin J. on April 6, 2023. Paragraph 6 of the order is very important. It states:

6. THIS COURT ORDERS that each of the moving party, Gail Patricia Hannula, and the applicant, Frances Moore, be indemnified by the Estate for their costs incurred in this motion and in this application, as agreed by them or as ordered by the Court. The moving party and/or the applicant can obtain a date from the trial coordinator if necessary, to deal with any issue as to costs.

The Nature of this Particular Hearing

[3] I am not being asked to fix costs for a proceeding that I have adjudicated. This matter was settled outside of court. Accordingly, this matter was not a usual costs-fixing exercise following the conclusion of an adjudication process. Paragraph 6 of the Warkentin J. order clearly stated that legal fees were to be agreed or fixed by the court. In hindsight, it might have made more sense for the parties to have utilized the procedure envisioned by Rule 57.04 of the Rules of Civil Procedure and agreed to refer any dispute as to fees to the Assessment Officer for the Northwest Region under Rule 58.

[4] Counsel for Gail opened with a submission that this process was not an assessment but rather the enforcement of a settlement agreement. After hearing all the submissions of the parties, I disagree with this submission.

[5] A dispute about a settlement requires underlying terms that are agreed upon by the parties. There is no question that Gail is entitled to have her legal fees paid. The issue is whether she has the right to be fully indemnified for the fees charged by her counsel, or whether she will receive partial indemnity costs. This is not an agreed term. It was left open to the parties to either resolve or litigate. This portion of the settlement agreement regarding Gail’s reimbursement was not settled. An application cannot be brought to “enforce” a term of a settlement that was never certain nor agreed upon.

[6] In my view, paragraph 6 of the Warkentin J. order cited above is a complete answer to Gail’s submission that she is entitled to be reimbursed for the full amount she was charged by her lawyer. The order says “as agreed or determined by the Court”. The words “determined by the Court” means that this court is entitled to exercise some discretion in the determination of the appropriate quantum of legal fees to be paid out of the estate in the circumstances. It is a difficult task for a court to engage in a process of determining the quantum of legal fees when it has not been involved in adjudicating the matter. It does not happen often. When it does, it calls for a summary and quick review of the situation. In this matter, the analysis performed by Frances on the solicitor/client accounts of Gail was most useful.

[7] For matter such as this, all that is necessary is a summary of the case and a broad and general description of the terms of the settlement. Also, when a settlement has been memorialized in an order, there is even less need to delve back into how that order was arrived at.

[8] In this matter, I took it as a given that the result of the litigation, a settlement, was one that both parties either equally liked or equally disliked. It was a result for both, that they both agreed to. In my view, it was irrelevant in this motion to try and focus on “winners or losers” per se. At no time did I understand Frances’s counsel to be advocating that no payment was to be made for Gail’s legal fees from the estate. Frances’ submissions and materials focused mostly on the issue for quantum. This was of assistance to the court in the context of a one-hour motion that both counsel had agreed to.

[9] However, Gail’s counsel sought to take the court through a re-examination of the matter’s merits in the hopes of suggesting that Gail should be entitled to be reimbursed for all of what she was billed by her counsel. This was not a helpful approach given the circumstances of this case.

The “Compendia” and the Volume of Documents Filed on a One-Hour Motion

[10] Before discussing the merits of this matter, I have some comments regarding the procedure and court resources used by the parties.

[11] Counsel placed this matter on the regular weekly Northwest Region motion list. The practice direction for the region indicates this list is reserved for matters that take one hour or less. Matters longer than one hour require parties to book a special date with the trial coordinator. This is set out a paragraph 3 of the Notice to the Civil, Family and Criminal Bar, dated November 1, 2023. This particular practice in the Northwest Region for dealing with short motions has been in place since at least March 2020.

[12] Counsel for Frances filed a confirmation that this matter would take 60 minutes total. Counsel for Gail did not file a confirmation, nor did they seek a special date for this matter. On that basis, this matter was placed on the regular weekly regional motions list.

[13] The parties then filed 991 pages of documents. Gail filed 826 pages of documents. Frances filed 145 pages of documents.

[14] It is completely unrealistic for parties to file this amount of documentation and then expect the matter to be dealt with in one hour or less unless counsel are prepared to focus their arguments and direct the presiding judge to the specific documents within their materials. This is the theory behind the requirement to file a compendium. Frances did not file a compendium. Gail filed a “compendium like” document. In my view this document was not a proper compendium. It was an index. It was hyperlinked. That was fine. However, the hyperlinks just took me to each individual tab and not to specific and focused pages which is what a proper compendium is supposed to do.

[15] The hyperlinks in Frances’s documents had disappeared in the Caselines bundle I was dealing with. Perhaps the hyperlinks worked when the documentation was filed. I did not make a point of mentioning this during submissions, however, because Frances’s counsel filed what I found to be the most useful document on this motion. This most useful document (besides the factums filed by the parties), was a colour coded copy of the accounts rendered by counsel who was seeking an order for payment of legal fees on this motion. It appeared as a schedule to Frances’s factum.

[16] In the context of a motion that is scheduled for one hour, it is unhelpful to have “compendia” be bookmarked only to take the presiding judge to the beginning of each and every document section and not to specific pages in the materials. The “compendia” in this matter were not compendia at all. They were “old school” indexes of a large volume of documents. This is unhelpful.

[17] I understood counsel for Gail to be suggesting in argument that I should have a complete command of his client’s 826 pages of documents in order to properly allow his client to have this matter fairly considered. This is an unrealistic request of the court when the matter is placed on the regular weekly motions court schedule.

[18] It is also an unhelpful approach where the parties have agreed to settle the matter without having the court adjudicate it. If parties settle, the matter is settled. If they cannot settle legal fees to be paid by one side to another and are wanting or needing a court to do it, they should not expect that occasion to be an opportunity to relitigate the settlement process.

The Time Estimates

[19] Ultimately the parties had 35 minutes to argue this application. This is because of how I decided to allocate my time as I was navigating the motion list on that particular day. I was the only judge in our region doing motions on December 14, 2023. Sometimes we have a back up, however, on this day we did not. I was also scheduled to preside over two criminal lists in the afternoon commencing at 2 pm. I told counsel at the outset of the morning that I would only be sitting until 1 pm for motions.

[20] As it turned out, after I dealt with the consent matters on the list, there was a high conflict family matter with some time sensitive issues that I had to prioritize, and which took some time. This affected the amount of time remaining for other matters, which including two civil matters and a family contempt motion. The parties for the remaining family matter agreed on an adjournment, and I advised the other civil matter that I would not have time to address their matter that day. This left us roughly 40 minutes in the day to argue this motion.

[21] Considering both parties had represented to the court that the matter could be adjudicated in 60 minutes or less, I would have thought that neither party would have had expected more than 30 minutes to litigate their respective positions. Ultimately Gail’s counsel got 25 minutes of time for argument (20 minutes in main argument and 5 minutes in reply). Frances’s lawyer’s submission was 10 minutes total.

[22] Ultimately this is all the time this matter needed.

The Facts

[23] This was an estate case. Frances’s husband Frank changed his will late in his life to cut Frances out completely. Frances did not discover this until after Frank died. She sued Frank’s estate. Gail was Frank’s sister and power of attorney. She too was sued by Frances. The parties settled. It was agreed that Gail would get her legal fees paid out of the estate. This agreement was incorporated in the Warkentin J. Order.

[24] It was not agreed that Gail would be paid whatever her lawyer charged her. Implicit in the Warkentin J. Order was the court’s ability to oversee and order the quantum of Gail’s legal fees to be paid.

[25] Gail asks to be paid $35,000 inclusive of HST and disbursements for her fees. Frances argues that Gail should be paid anywhere from $10,000 to $14,000, inclusive of HST and disbursements.

Decision

[26] Considering the submissions of the parties, the material filed, and the summary nature of how a proceeding such as this should go, I order the Estate of Frank Moore to pay Gail Hannula $14,000, inclusive of HST and disbursements, for her legal fees. I say so for the following reasons.

[27] I am persuaded by Frances’s submissions that the legal fees requested by Gail are excessive. I agree they are excessive for several reasons.

[28] First, there is some $10,000 in legal fees for time spent by a legal clerk. That clerk’s time was for occasions where both counsel and the clerk were doing the same thing together. This is duplication of effort. These are not acceptable fees for Gail to recover from the Estate.

[29] Second, I agree with the submission that $2,000 worth of Gail’s counsel’s time was allocated when Gail was not complying with the April 2022 order. It is not appropriate for the estate to bear the cost for Gail’s non-compliance with a court order.

[30] Third, I agree with the submission that $3,874.77 was incurred by Gail responding to a contempt motion. As costs of this motion were awarded against Gail in favour of Frances, it is incongruous for Gail to then attempt to circle back and ask that those costs be recovered from monies that are ultimately going to Frances.

[31] Fourth, I accept the submission that the costs sought for the passing of estate accounts must be assessed in context of the provisions of Rule 74.18 of the Rules of Civil Procedure. Rule 74.18 provides that in the event a passing of accounts is done without an attendance, the Rule requires costs to be assessed in accordance with Tariff C unless a request for increased costs is made. I accept the submission that no request for increased costs was made on the application to pass accounts in this case. Ultimately the passing of accounts was done without a hearing. Tariff C costs would be limited to $2,500. Counsel for Gail seeks approximately $10,000 for this work. This is excessive in the circumstances.

[32] Fifth, I also agree with the submission of Frances that the time spent on the preparation of the estate accounts was charged at the full indemnity rate of $450/hr by counsel. I agree this is executor work and should not attract a full indemnity payment. I agree with the submission that a reduction of approximately $1,800.00 is warranted.

[33] Taking these submissions into account at their highest, Frances submits Gail’s accounts contain approximately $24,674 of excessive fees.

[34] Considering these submissions and the reductions of the time requested into account, I agree with Frances’s submissions that $14,000, inclusive of HST and disbursements, is a fair and reasonable amount for Gail to be reimbursed by the estate for her legal fees. This amount is to be paid from the funds held in trust to Gail’s counsel, and the balance remaining in trust is to be remitted to Frances forthwith.

Costs of this Application

[35] Neither party submitted a bill of costs on this application. The amount Gail sought on the application was greatly reduced. Despite the fact that I have largely accepted Frances’s submissions on this application, I am not prepared to exercise my discretion to award that the amount payable to Gail be further reduced by an award of costs on this attendance. Each party will bear their own costs on this application.

“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick

Released: January 5, 2024

COURT FILE NO.: CV-21-316-00 DATE: 2024-01-05 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Frances Moore Applicant

• and - KATHERINE ELIZABETH COOKE, also known as KATHERINE ELIZABETH MOORE, personally and in her capacity as Attorney for Property and Attorney for Personal Care for FRANK FREDERICK MOORE, GAIL PATRICIA HANNULA, personally and in her capacity as Attorney for Property and Attorney for Personal Care for FRANK FREDERICK MOORE and FRANK FREDERICK MOORE Respondents DECISION ON MOTION Fitzpatrick J.

Released: January 5, 2024