Court File and Parties

Court File No.: CV24-11857 Date: 2024-12-11 Ontario Superior Court of Justice

Between: Rosemary Maki, Applicant / Responding Party – and – Lucien Cammaert, Respondent / Moving Party The Public Guardian and Trustee and Willy Cammaert

Counsel: Nima Hojjati, for the Applicant / Responding Party Devan Munch, for the Respondent / Moving Party Gary Marcuccio, for Willy Cammaert as section 3 counsel

Heard: In writing

Decision on Costs

P.J. Boucher, R.S.J.

Overview

[1] On October 03, 2024, I granted Lucien Cammaert’s motion and transferred these proceedings from Toronto to Sudbury. The parties were unable to agree on costs. I have considered their written submissions, including the moving party’s costs outline. This is my decision on costs. In what follows, I refer to the parties by their first names, which is how they presented themselves at the motion and in their costs submissions.

[2] Modern costs awards address several important principles. They partially indemnify successful litigants for the cost of litigation, they encourage settlement, and they discourage and sanction inappropriate behaviour. Awards should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party, rather than an exact measure of the actual costs of the successful party. Part of this assessment includes considering what the unsuccessful party could expect to pay in the circumstances: Boucher v. Public Accountants Council for the Province of Ontario at para 26.

[3] Costs awards are entirely within the discretion of the court. Rule 57.01 of the Rules of Civil Procedure, RRO 1990, Reg. 194 provides some guidelines that may be considered when exercising that discretion, in addition to the result in the proceeding and any offers to settle.

[4] This case involves Rosemarie’s request to set aside powers of attorney in favour of Lucien granted by their father. She challenges their father’s capacity to grant the powers of attorney and asks that she be appointed as his guardian. She further challenges Lucien’s management of their father’s property.

[5] Lucien seeks substantial indemnity costs of $7,574.96 inclusive of disbursements. He submits Rosemarie’s behaviour warrants an elevated award because she insisted on proceeding in Toronto despite her counsel being the only connection to that jurisdiction. Further, he argues she requested an oral hearing despite the fact the presumptive mode of appearance for transfer motions is in writing: Ontario Superior Court of Justice, Consolidated Civil Provincial Practice Direction (Toronto: Ontario Superior Court of Justice, amended February 01, 2024) para 51. Finally, he submits Rosemarie improperly accused him of abusing the court’s process by bringing this motion while he had attorned to the Toronto jurisdiction.

[6] Rosemarie submits costs should not be awarded because she is simply seeking an accounting of the assets of their father. She further argues she had a prima facie right to choose the venue at the commencement of the proceedings. She submits in the alternative that costs should be payable in the cause, suggesting this is the normal practice for transfer motions.

[7] A successful party is presumptively entitled to its costs. On a contested motion, costs shall be fixed and payable within thirty days unless the court “is satisfied that a different order would be more just”: Yelda v. Vu, 2013 ONSC 5903, at para 11 (leave to appeal refused, 2014 ONCA 353); Rules of Civil Procedure, RRO 1990, Reg. 194, r 57.03(1).

[8] Rosemarie has not persuaded me to deviate from this well-established principle. Lucien brought the transfer motion in writing in accordance with the Practice Direction. Rosemarie requested an oral hearing that required half a day. This necessarily took time to schedule before me. Lucien cannot be faulted for engaging in the proceedings in Toronto while the parties waited for the oral hearing in Sudbury.

[9] Nor do I agree there is principle that costs of transfer motions are always ordered in the cause. Rosemarie filed several transfer decisions in which the court ordered costs in the cause. All but one of the cases provided were decided by Firestone, RSJ. However, in none of these cases does Firestone RSJ enunciate a statement of law supportive of Rosemarie’s position. Notably, in his transfer decision Bruce Power L.P. v. BNT Canada, L.P., 2018 ONSC 5968 (not provided by counsel) Firestone RSJ encouraged the parties to agree on costs for the motion, and he ordered written submissions in the event of disagreement.

[10] The other transfer case relied upon by Rosemarie is distinguishable. In that case, Howard J. (as he then was) fixed partial indemnity costs for the successful party but ordered them payable in the cause: Williams v. Provost, 2022 ONSC 3255, at paras 46-47. In that case, the party that successfully moved for a transfer of the proceedings was one of three respondents in an estates dispute. The motion was heard in writing, which reduced costs and time. As well, the successful party was the only respondent that was opposed to the relief sought in the application. One of the other respondents opposed the motion to transfer, as did the applicant. In those circumstances, Howard J. declined to order the successful party her costs in the event.

[11] In my view, Lucien is entitled to partial indemnity costs of this motion. Substantial indemnity costs may be engaged when there are offers to settle (which is not the case here) or conduct by the unsuccessful party that warrants elevated costs. I cannot find that the positions advanced by Rosemarie were unreasonable so as to require substantial indemnity, although I disagreed with them in my decision.

[12] For the above reasons, I find that $5,564.97 in costs, all-inclusive, on a partial indemnity basis, represent a fair, reasonable, and proportionate award in the circumstances of this motion. These costs shall be paid by Rosemarie to Lucien within thirty days of this order.

[13] No costs were sought by or against s. 3 counsel and none will be given.

Regional Senior Justice Patrick J. Boucher

Released: December 11, 2024