Court File and Parties

COURT FILE NO.: CV-24-95220-ES DATE: 2024/08/21 SUPERIOR COURT OF JUSTICE – ONTARIO

In the Estate of LIDIA KACIN, a.k.a. LYDIA KACIN, a.k.a. LYDIA MARIJA KACIN a.k.a LILLIANA KACIN, DECEASED

RE: Martina Kacin a.k.a. Marta Mira Kacin, Applicant AND: Yelka Mira Kacin a.k.a. Yelka Mira Ingram and Edward Kacin a.k.a. Eddie Kacin Respondents

BEFORE: Somji J.

COUNSEL: Dennis Van Sickle, for the Applicants Colin Wright, for the Respondent, Yelka Mira Kacin a.k.a. Yelka Mira Ingram Devon Goyo, for the Respondent, Edward Kacin a.k.a. Eddie Kacin

HEARD: In Writing

Costs Endorsement

[1] The Respondent Yelka Kacin seeks $10,000 in costs following her success on a motion for directions and appointment of an estate trustee. The Applicant Martina Kacin agrees costs should be granted but argues that the quantum is excessive and should be reduced to $4,859 which is what the Applicant could reasonably have expected to pay.

[2] As the successful party, the Respondent is entitled to costs. The only issue is what is a fair and reasonable costs award in the circumstances of this case.

[3] Courts have broad discretion to determine whom costs should be paid and the quantum: s. 131(1) Courts of Justice Act, R.S.O. 1990, c. C.43, as am..

[4] In exercising their discretion, judges may consider the factors set out in Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and governing jurisprudence. These factors include the following: the experience of counsel and rates charged, the amount an unsuccessful party could reasonably expect to pay, amounts claimed, apportionment of liability, importance of issues, complexity of the proceedings, and the conduct of the parties.

[5] There was nothing in the conduct of the Respondent that would disentitle her to a costs award. There were no offers to settle for consideration.

[6] Respondent’s counsel billed 56 hours for review of the Application Record (25% apportioned to motion) and motion preparation plus a flat fee of $847 (inclusive of HST) for appearance at the motion. The partial indemnity rate charged of $140/hour is more than reasonable given counsel’s experience having been called to the bar in 1977. I find the appearance fee is also reasonable.

[7] Applicant’s counsel argues that 56 hours for preparation is excessive given they spent 50 hours for preparation of the Application Record and the motion including attendance at the hearing. I do agree with Applicant’s counsel that 12 hours for “argument” on the billings is excessive and have reduced it to 6 hours resulting in total preparation time of 50 hours. However, I find the remainder of the billings were necessary and appropriate.

[8] While the motion was not overly complex, it did involve requests for directions on multiple issues. The issues were of significant importance to all the parties as the directions requested impact the procedures, costs, and effective management of a modest estate of $175,000. Furthermore, as noted by the Respondent’s counsel, there were 850 pages of documents to review and considerable authorities cited. Upon review of the Bill of Costs filed, I find the Respondent counsel’s billings are commensurate with the work performed and were necessary to adequately address all the issues raised on the motion.

[9] The Respondent’s counsel provided the Bill of Costs and a costs submission to the Applicant’s counsel prior to the motion hearing.

[10] Ultimately, in determining quantum, the overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances rather than the amount of actual costs incurred by the successful party: Rule 57.01(1)(0.b); see also Boucher v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291 (C.A.) at paras 37-38; Deonath v. Iqbal, 2017 ONSC 3672 at paras. 20-21.

[11] Considering the relevant factors including the Applicant’s success on the motion, complexity, the importance of the issues, the time and rates charged, I find that costs consisting of fees, HST, and disbursements in the fixed amount of $9,200 is fair and reasonable.

[12] The Applicant seeks that her costs be taken from her share of the proceeds from the estate which the parties have agreed should be at least one third of the estate. However, the Respondent does not wish to carry all the litigation costs until this matter is resolved. Consequently, there will be an order that the Applicant will pay the respondent $5,000 within 30 days, and the balance of $4,200 will be taken from the Applicant’s share of the estate.

Order

[13] The Applicant shall pay costs of $9,200 to the Respondent Yelka Kacin of which $5000 shall be paid within 30 days and the balance of $4200 are to paid from the Applicant’s share of the estate at the time the proceeds of the estate are distributed.

Somji J. Date: August 21, 2024