Court File and Parties

OTTAWA COURT FILE NO.: CV-22-90007 DATE: 2024/12/17 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: PATRICIA GRAHAM, Applicant AND THE ESTATE OF SHEILA MARY MCNALLY, deceased and KATHERINE BLAIS, Estate Trustee of the ESTATE OF SHEILA MARY MCNALLY, deceased, KATHERINE BLAIS in her personal capacity, LAURA ROSEMARY GRAHAM, Respondents

BEFORE: Madam Justice S. Corthorn

COUNSEL: Cheryl Letourneau, for the applicant Amanda Estabrooks, for the respondent, Katherine Blais, personally and in her capacity as Estate Trustee of the Estate of Sheila Mary McNally, deceased

HEARD: In writing

Costs Endorsement

Introduction

[1] The applicant, Patricia Graham, sought a declaration that a will, executed in 2021 by her late sister (“the Will”), was invalid. Ms. Graham relied on three grounds: (a) lack of testamentary capacity; (b) undue influence; and (c) suspicious circumstances surrounding the execution of the Will.

[2] In response, Katherine Blais, personally, and in her capacity as the estate trustee for the subject estate, brought a motion for an order dismissing the application. Ms. Blais asserted that Ms. Graham failed to adduce, or point to, evidence which, if accepted, calls into question the validity of the Will on any or of the three grounds upon which she relied. Ms. Blais was successful on the motion and the application was dismissed: Graham v. McNally Estate and Blais, 2024 ONSC 4006 (“Ruling”).

[3] As the successful party, Ms. Blais is entitled to her costs of the motion and of the application: Ruling, at para. 36. The parties were given an opportunity to the issue of costs; they were unsuccessful in doing so. The court received costs submissions in writing from both Ms. Blais and Ms. Graham.

[4] Ms. Blais seeks costs on the partial indemnity scale totaling $30,700. Ms. Graham does not dispute the scale upon which Ms. Blais seeks costs. Ms. Graham questions the amount of the costs requested.

[5] With the scale upon which costs are payable agreed upon, the only issue is the quantum of costs payable. For the reasons which follow, I fix Ms. Blais’ costs in the amount of $22,000 inclusive of fees, disbursements, and applicable HST.

Fixing the Amount of Costs to be Paid

[6] Ms. Blais relies on rr. 57.01(1)(e) and (g) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The former subrule addresses “the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding”. The latter subrule addresses “a party’s denial of or refusal to admit anything that should have been admitted”.

[7] Ms. Blais points to Ms. Graham’s refusal, from the outset of the application, to acknowledge that she does not have any evidence to adduce, or to which to point, which, if accepted, calls into question the validity of the Will on any or of the three grounds upon which she relied. I agree with Ms. Blais that such conduct is relevant to the amount of costs to which she is entitled.

[8] I agree with Ms. Graham, however, that a reasonable amount for costs of the motion and of the application on a partial indemnity scale falls below the $30,700 requested by Ms. Blais.

[9] Ms. Graham submits that a reasonable amount for costs of the motion and of the application, on the partial indemnity scale, is $20,000. Ms. Graham points to the differences between the hourly rates charged by the timekeepers whose work is reflected in Ms. Blais’ bill of costs and those of the timekeepers at the firm by whom Ms. Graham is represented:

• Senior counsel by whom Ms. Graham is represented was called to the bar in 2004. During the relevant period, that lawyer’s hourly rates ranged from $390 to $425. Ms. Graham contrasts those rates with the hourly rates charged by senior counsel representing Ms. Blais in the matter. That lawyer was called to the bar in 2012; her hourly rates ranged from $370 to $460;
• The timekeepers whose work is reflected in Ms. Blais’ bill of costs include a lawyer called to the bar in 2023 and whose hourly rate is $305; and
• The hourly rates for a clerk, whose work is reflected in Ms. Blais’ bill of costs, range from $265 to $290. Ms. Graham contrasts those hourly rates with the $190 charged for work done by a clerk employed by the law firm representing Ms. Graham.

[10] In addition, Ms. Graham questions Ms. Blais’ entitlement to costs for approximately ten hours of work by an articling student in preparing questions for cross-examination of Ms. Graham on the second of the two affidavits she filed in the proceeding.

[11] I accept, as reasonable, the submissions made regarding the differences in the hourly rates charged—specifically when one considers the respective years of call of the counsel who had carriage of the matter on behalf of Ms. Graham or Ms. Blais. The former is eight years senior to the latter counsel.

[12] I also accept that it is unreasonable to allow ten hours of time for an articling student, at $200 per hour, to prepare questions for cross-examination on an affidavit of a modest length. That student did not conduct the cross-examination.

[13] Ms. Blais’ bill of costs includes time for an individual described as “clerk”. There is no explanation as to whether that individual is a licensed paralegal, completed a law clerk course at a post-secondary institution, or is an experienced assistant who carries out both administrative and legal work. The relies on the discussion in Vriend v. Vriend, 2024 ONSC 4015, at paras.49-61, regarding work done by non-lawyer timekeepers. In the absence of an explanation as to the qualifications of the “clerk”, and whether the work done by that individual is legal work or administrative work, I exclude the fees for the clerk’s work.

[14] In their respective bills of costs, Ms. Blais and Ms. Graham provide breakdowns of time docketed for the various stages of the proceeding. Based on a comparison of the time docketed and keeping in mind that Ms. Graham, as the applicant, incurred fees for the preparation of the notice of application and affidavit in support of the application, I find that the time docketed by the timekeepers at the firm by which Ms. Blais is represented is slightly high (including, on a few occasions, because of duplication of effort between timekeepers).

[15] In fixing Ms. Blais’ costs in the amount of $22,000 (for fees, disbursements, and applicable HST), the court stays away from “an arithmetic function dependent on the number of hours worked and the hourly rates employed”, and the outcome “reasonably reflect[s] the amount of time and effort that was warranted by the proceeding”: see Gratton-Masuy Environmental Technologies Inc. v. Building Materials Evaluation Commission, 122 ACWS (3d) 645 (ON SCDC), at para. 17.

Disposition

[16] Ms. Graham shall pay Ms. Blais her costs of the motion and of the application, on the partial indemnity scale, in the total amount of $22,000 for fees, disbursements, and applicable HST.

[17] In their respective submissions, Ms. Blais and Ms. Graham do not address the timing for payment of costs. Subrule 57.03(1)(a) requires that, following the hearing of a contested motion, the court order costs be paid within 30 days of the date of the costs order. The subrule allows for an exception to that requirement if “the court is satisfied that a different order would be more just”.

[18] I allow for the fact that this endorsement is being released immediately before the holiday period. For that reason, the deadline by which costs shall be paid is extended from 30 to 45 days from the date of this endorsement.

[19] Ms. Graham shall pay the costs referred to in para. 16, above, within 45 days of the date of this endorsement.

Date: December 17, 2024

Madam Justice S. Corthorn