Court File and Parties
Court File No.: CV-24-267 Date: 2024/10/01 Superior Court of Justice-Ontario
Re: NICOLE LAPIERRE, personally, and as Estate Trustee for the Estate of Gayle Ellen Mavin, Applicant And: NEIL MAVIN, personally, and as Estate Trustee for the Estate of Gayle Ellen Mavin, Respondent
Before: Gibson J.
Counsel: Dawn Phillips Brown and Brooklyn Lester, Counsel for the Applicant Neil Mavin, Self-represented Respondent
Heard: March 27, 2024
GIBSON J.
COSTS ENDORSEMENT
1This case involved a contentious dispute in an estate matter. The issue on the hearing was whether Arbitration Orders should be enforced pursuant to the provisions of the Arbitration Act. In my Endorsement of July 23, 2024, I directed that the Minutes of Settlement between the parties should be enforced, as amended by the Orders of an Arbitrator.
2In my Endorsement I encouraged the parties to agree as to costs, but specified that, if they could not, they might make brief written submissions. They have now done so.
Submissions of the Parties
3The Applicant submits that the Respondent should be required to personally pay the full indemnity costs of the Application in the amount of $19,930.26. She submits that the Respondent has acted in a way that is vexatious and inappropriate. His conduct has delayed the administration of the Estate several years and caused significant legal fees to the Applicant. Her counsel submits that the Respondent inundated the Applicant’s counsel with submissions that were improper, not sworn, not properly served or filed, and were irrelevant and a waste of time and resources. The Respondent continued to harass the Applicant, the Applicant’s counsel, and conducted scorched earth litigation tactics.
4The Respondent in his response does not directly address the amount claimed by the Applicant, but rather continues to criticize the Applicant and her counsel.
Law of Costs
5The factors that a court may consider in exercising its discretion under s.131 of the Courts of Justice Act to award costs, in addition to the result of the proceeding and any offers to settle made in writing, are set out in Rule 57.01 of the Rules of Civil Procedure. Amongst these are: the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed; the amount claimed; the complexity of the proceedings; the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding; the importance of the issues; and any other matter relevant to the question of costs.
6Costs should be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding. Regard must be had to the principle of proportionality. Costs regardless of the scale must be fair and reasonable and within the expectation of the parties and proportional having regard to the issues at stake: Boucher v. Public Accountants Council (Ontario), [2004] O.J. No. 2634 (Ont. C.A.).
7A court should consider a party’s ability to pay costs: C.A.M. v. D.M. (2003), 67 O.R. (3d) 181 (Ont. C.A.). However, while a party’s limited financial circumstances are a factor for the court to consider, it should not be used as a shield against any liability for costs and should only be taken into account regarding the quantum of costs: Snih v. Snih. A bald claim by a party without evidence that they are impecunious is insufficient to establish that they are in fact impecunious: Crooks v. Foley, 2013 ONSC 4851 (Div. Ct.).
Assessment
8The Applicant was entirely successful in this matter. The conduct of the Respondent has been egregious. The Application ought not to have been necessary at all, but was required as a result of the unreasonable refusal of the Respondent to comply with the Arbitration Orders. His conduct has been obstructionist and has unnecessarily lengthened the duration of the proceeding. The record clearly indicates that the Respondent has engaged in abusive tactics, repeatedly making gratuitous ad hominem attacks on the Applicant and on her counsel.
9As was stated in Lightfoot v. Lightfoot, 2024 ONSC 3803, at para. 11:
No one, whatever their status, is entitled to conduct scorched-earth litigation tactics and slander opposing counsel with impunity. Self-represented litigants should not be insulated from costs consequences merely because of that status.
10Having regard to the factors under Rule 57.01, I assess that this is an appropriate case in which the Respondent should be required to personally pay the full indemnity costs of the Application. These costs are not to be paid out of the Estate.
Order
11The Respondent Neil Mavin shall personally pay costs to the Applicant fixed at $19,930.26 all-inclusive. These costs are to be paid forthwith, and are not to be paid out of the Estate.
M. Gibson J.
Date: October 1, 2024