Costs Decision
Court File No.: CV-0083175-00ES
Date: 2025/07/17
Ontario Superior Court of Justice
Between:
Edi Ferritto, Plaintiff
– and –
Lucia Ferritto, Office of the Public Guardian and Trustee, and Alfredo Ferritto, Defendants
Appearances:
- Marc Munro for the Plaintiff
- Andrea Hill, Section 3 Counsel for Lucia Ferritto
- Sarah Jones for the Office of the Public Guardian and Trustee
- No one appearing for Alfredo Ferritto
Heard: In writing
Justice L. Sheard
Overview
1This action was the consolidation of two Applications: Court File No. CV-21-77215 and CV-22-79264.
2Application CV-21-77215 was a guardianship application brought by Edi Ferritto (“Edi”) to be appointed guardian of property and of the person of her mother, Lucia Ferritto (“Lucia”). It was later amended to add additional relief.
3Application CV-22-79264 was brought by Edi’s brother, Alfredo Ferritto (“Alfredo”), as Lucia’s purported attorney for property.
4Alfredo was arrested on February 2, 2023, on charges related to his use or alleged misuse of Lucia’s assets.
5As Lucia had been assessed and found incapable, by orders made in February 2023, Krawchenko J. ordered the Public Guardian and Trustee (the “PGT”) to be appointed as Lucia’s Guardian of Property and to arrange for the appointment of legal counsel for Lucia under s. 3 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, as am. (“S. 3 Counsel”).
6The two Applications and related motions were heard by Krawchenko J. on March 22 and 23, 2023. By that date, Alfredo was no longer represented by counsel and did not attend the hearing before Krawchenko J.
7In his decision entitled “Decision on Consolidated Application and Motions” released October 4, 2023 (the “Krawchenko Decision”), Krawchenko J. ordered that Edi pass her accounts as Lucia’s attorney for property but otherwise dismissed Alfredo’s Application. With respect to Edi’s Application, the Krawchenko Decision ordered Alfredo to pass his accounts as Lucia’s attorney for property, converted the balance of the consolidated Applications to an action, and, at para. 55, directed a trial of the identified issues.
8The Krawchenko Decision reserved the costs of the Applications and motions to the judge who heard the trial. As the trial judge, I must fix the costs of the Krawchenko Decision as well as the trial costs.
9In purported compliance with the Krawchenko Decision, Edi issued a new Statement of Claim, CV-83175-00ES. Edi sued Alfredo and, although no relief was sought as against them, she also named Lucia and the PGT as defendants. The PGT and S.3 Counsel attended briefly at trial. After advising that neither the PGT nor Lucia were taking a position on the issues, they were excused. Their legal fees of the litigation were determined at a Case Conference held before me on February 19, 2025.
10The trial took place over the course of five days, between November 2024 and April 2025 and on June 2, 2025, I released my Reasons for Judgment (the “Judgment”).
11Edi was successful on every issue to be determined. As noted at para. 153 of the Judgment, Edi is presumptively entitled to her costs.
Costs to be Determined
12As directed at para. 155 of the Judgment, Edi submitted her Costs Submissions and her Bill of Costs. In her Costs Submissions, Edi notes that this litigation has taken three and one-half years to reach a conclusion and that she has spent a total of $283,827.13 on legal fees and disbursements. If calculated on a substantial (90%), or on partial (65%), indemnity basis, Edi says her costs would total $257,620.96 and $192,105.54, respectively.
13Edi seeks her costs on a full indemnity basis from Alfredo or, at least, on a substantial indemnity basis. Edi submits that she is entitled to costs on an elevated basis not only because Alfredo caused the litigation, but also because he drove up Edi’s costs with his litigation strategy of creating issues to cause delay.
14At para. 9 of her Costs Submissions, Edi also asserts that she
…sought to have an expeditious determination of issues only to be frustrated with purposeful delay tactics then, following Alfredo’s arrest, a judicial determination that a full trial was necessary irrespective of the fact that the proceeding was unopposed. While cognizant that issues may require viva voce evidence to be properly adjudicated, trials are costly. As such it is the respectful submission of the plaintiff that the principle of indemnification should be paramount when it is the court itself that requires trial evidence when a proceeding is unopposed. This especially true when there are judicial findings of reprehensible, scandalous, and egregious.
15The Krawchenko Decision sets out the procedural history of the litigation, which supports Edi’s submissions that the matter was adjourned numerous times, without an adjudication of any of the substantive issues until the March 2023 hearing before Krawchenko J.
16In my review of the endorsements and/or orders made at court appearances prior to February 2023, I note that in the Order of Skarica J., made February 24, 2022, Edi is awarded costs of $500.00 and in the Order of Carpenter-Gunn J. dated October 20, 2022, Alfredo is awarded costs of $1,000.00 as against Edi. The remaining interlocutory orders are silent as to costs.
17The general rule is that when “an endorsement or order dealing with an interlocutory step in a proceeding is silent as to costs, it is, in effect, an order for no costs, and costs not awarded in relation to that interlocutory step cannot be claimed later”: Williams v. Provost, 2022 ONSC 3255 citing London Eco-Roof Manufacturing Inc. v. Syson, 2020 ONSC 3101.
18For the reasons set out, I have broken out the costs award into two general headings:
- The costs relating to the proceeding heard by Krawchenko J.; and
- The costs relating to the trial before me.
Amount Claimed
Trial Costs
19As the trial judge, I presided over the five court attendances that took place from and after November 13, 2024, and am in a good position to determine and fix the costs of that portion of the proceeding. I have reviewed the Bill of Costs and allocated costs which, in my view, relate to the trial. In doing so, I have exercised my discretion in determining whether to characterize the costs as trial-related or related to the Applications and motions heard by Krawchenko J.
20Based on the headings in the Bill of Costs, I have determined that the following fees are trial-related:
(a) Fees incurred prior to the Krawchenko Decision:
- Communications with the non-parties: $4,734.00
- Communications for capacity assessment: $2,293.50
- Preparation of banking briefs/records: $2,025.00
- Cross-examinations of the parties: $15,005.00
- Case Conference September 12, 2022: $4,003.00
- Out-of-court examination of Dr. Savatteri: $4,443.00
Subtotal: $32,503.50
(b) Fees incurred after Krawchenko Decision:
- Drafting Pleadings CV-23-83175-00ES: $1,614.00
- Motion for Default Judgment (“Motion”): $27,577.50
- Preparation/Attendance for Motion June 25, 2024: $3,087.50
- Preparation/Attendance for Motion Oct. 4, 2024: $4,560.00
- Attendance at Trial Readiness Court, Nov. 4, 2024: $997.50
- Preparation/Attendance Trial, day 1, Nov. 13, 2024: $8,344.00
- Prep./Attend Trial, days 2, 3 - Jan 20, 21, 2025: $22,194.50
- Case Conf. Feb 19, 2025, fix PGT/S.3 Counsel fees: $380.00
- Prep. for/Attend Trial, day 4 - Feb. 28, 2025: $9,926.50
- Prep. for/Attend Trial - April 9, 2025: $6,817.50
- Preparation Bill of Costs: $1,350.00
Subtotal: $86,849.00
TOTAL: Trial-related fees ($32,503.50 + $86,849.00) = $119,352.50
21Other fees listed in the Bill of Costs are:
- Communication with client throughout: $12,284.50
- Communication with opposing parties: $25,905.50
- Application Materials: $25,481.00
- Prep./Attend. on November 18, 2021: $2,700.00
- Review of Cross-App. Record: $807.50
- Motion to Strike Cross App.: $23,599.50
- Urgent Motion after Alfredo’s arrest: $8,927.00
- Case Conference Feb. 28, 2023: $2,028.00
- Prep. for hearing March 22, 23, 2023: $2,612.50
- Attend hearing March 22, 23, 2023: $7,000.00
TOTAL Fees related to App/motions: $111,345.50
22By my calculation, full indemnity fees would add up to $230,698.00.
Disbursements
23Edi lists “external” disbursements totalling $18,699.95. Of this amount, $7,200 relate to Dr. Bruno, the capacity expert who provided key evidence at trial. The next most significant category of disbursement is for translation services, in the approximate amount of $1,857. This expense was necessary to translate documents written in Italian and an audio recording of a phone call with Lucia, who was speaking in Italian. The remaining disbursements relate to costs usual to litigation: such as court filing fees, transcripts, and examination fees.
24Overall, I see nothing unusual or unwarranted in the list of “external expenses”. I conclude that these were reasonable and necessarily incurred and that Edi is entitled to full reimbursement of the “external” disbursements, as claimed, in the amount of $18,699.95 plus applicable HST.
25Edi also seeks $1,151.34 for “internal” expenses: photocopying charges ($1,150.42) and postage ($0.92). With respect to these “internal” expenses, I reduce the amount claimed for photocopying expenses by 75% to $287.61 and allow disbursements under this heading in the total amount of $288.53. That reduction is intended to recognize that much of the printed material was not used and because “external” photocopying costs of $1,015.00 have already been allowed.
Edi’s Submissions Respecting Fees
26In support of her request for substantial (or higher) indemnity costs, Edi submits, among other things that:
(a) neither the PGT, as Lucia’s court-appointed guardian of property, nor Lucia herself, through S. 3 Counsel, opposed any of the relief that was sought by Edi;
(b) apart from granting an order that Edi pass her accounts, (a similar order was made against Alfredo), the Krawchenko Decision otherwise dismissed the relief sought by Alfredo in Application CV-22-79264;
(c) in the belief that it was required to comply with para. 56 of the Krawchenko Decision, Edi issued and served a new Statement of Claim (CV-23-83175-00ES), which Alfredo failed to defend, and yet, even though Alfredo had been noted in default, Edi was still required by the court to proceed with a “costly” trial;
(d) this entire litigation was caused by Alfred who, she submits:
…obtained control over his cognitively incapacitated mother through deceit and threats of violence. Once in control, Alfredo terrorised Edi and her daughter Afroditi forcing them out of the family home. He then facilitated the revocation of the powers of attorney Lucia had granted Edi in 1999 giving himself ostensible legal authority over his mother’s affairs. He also facilitated the severance of the joint tenancy of the family home, undoing the careful estate planning Lucia conducted in 2012. All for his own enrichment… (Edi’s Costs Submissions, at para 2.);
(e) she was entirely successful in the litigation which resulted in the Judgment which set aside all the documents that had been signed by Lucia as a result of Alfredo’s self-serving and improper conduct [1].
27Edi’s submission that she was successful in the litigation is accurate. The effect of the Judgment was to restore Lucia’s personal and estate plans – that significantly favoured Edi over Alfredo – to what they had been before Alfredo embarked on his campaign to take total control of every aspect of Lucia’s life: personal, medical, financial and, ultimately, her testamentary decision-making.
28Edi submits that Alfredo’s conduct was “reprehensible, scandalous and egregious” and that when determining the costs payable by Alfredo, the “principle of indemnification should be paramount.”
29I accept Edi’s submissions that the trial evidence supports a finding that Alfredo used Lucia’s funds to pay a lawyer to prepare documents, which the Judgment set aside in their entirety. However, the evidence did not allow me to find that Alfredo had misused or misappropriated Lucia’s funds to the extent alleged by Edi.
30Although the extent of the financial harm caused by Alfredo to Lucia will likely require an accounting from Alfredo to quantify, the Judgment makes clear that Alfredo’s conduct effectively deprived Lucia of the close, loving, and supportive relationships she had enjoyed with her daughter, Edi, and her two grandchildren, Edi’s daughters. Also, while the words “reprehensible, scandalous and egregious” are not used in the Judgment, based on the findings that I did make concerning Alfredo’s conduct, I accept Edi’s characterization of Alfredo’s conduct.
Requirement of a Trial
31Edi submits that the principle of indemnification becomes paramount, by reason, in part, of the fact that the court required her to prove her case by way of a trial, rather than on a paper record. I do not accept that submission.
32The Krawchenko Decision clearly found that the issues could not be decided on a paper record. Edi disregarded that finding. She assumed that because Alfredo had been noted in default, she could move for default judgment on a paper record.
33On November 13, 2024, this matter came before me as a long motion. In it, Edi again, was asking the court to find that the powers of attorney appointing Alfredo, and Lucia’s severance of the joint tenancy with Edi of Lucia’s home, to be invalid, based on a paper record. By November 13, 2024, Lucia had been found incapable, and unable to give evidence. Of significance was the fact that the paper record contained evidence that the challenged documents had been prepared, witnessed, and/or registered by a lawyer, who was purporting to act on Lucia’s instructions, but failed to contain any evidence from the lawyer: not his evidence from an out-of-court examination, nor his notes, accounts, reporting letters, or any documents from his file.
34For reasons set out in my Endorsement of November 13, 2024, the trial was adjourned to January 20 and 21, 2025. The Endorsement reads, in part, as follows:
From my review of the paper record, I note that there is no evidence from the lawyer who drafted the challenged Powers of Attorney and Will. I have considered the submissions made by plaintiff’s counsel that his client does not bear the onus of establishing the validity of the challenged Powers of Attorney and Will and, for that reason, she ought not to be required to call evidence from the drafting lawyer. Given both the determination made by Justice Krawchenko that the paper record was insufficient on which to determine the validity of the challenged documents, and my own view that any ambiguity or lack of clarity in the paper record would likely be resolved by hearing the viva voce evidence of the drafting lawyer, I did not accept the plaintiff’s submissions.
Legal Principles
35Section 131(1) of the Courts of Justice Act, RSO 1990, c C.43, gives the court discretion to determine by whom and to what extent costs are to be paid.
36In civil litigation, costs usually follow the event. That rule should not be departed from except for very good reasons: see Gonawati v. Teitsson, ; Macfie v. Cater, at para 28; Usanovic v. La Capital Life Ins., 2016 ONSC 5795 at para. 7.
37Costs are discretionary and, in the exercise of that discretion, the court is to consider the factors set out in Rule 57.01 of the Rules of Civil Procedure:
57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) 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;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and
(i) any other matter relevant to the question of costs.
38In 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, Perell J. reformulated the purposes of the modern costs rules, at para. 10, as follows:
(1) to indemnify successful litigants for the costs of litigation, although not necessarily completely;
(2) to facilitate access to justice, including access for impecunious litigants;
(3) to discourage frivolous claims and defences;
(4) to discourage the sanctioning of inappropriate behaviour by litigants in their conduct of the proceedings; and
(5) to encourage settlements.
39Overall, the objective is to fix an amount that is fair and reasonable, having regard for, among other things, the expectations of the parties concerning the quantum of costs: Boucher v. Public Accountants Council for the Province of Ontario, at paras. 26 and 38.
40A costs award should reflect what the court views as a fair and reasonable contribution by the unsuccessful party to the successful party rather than any exact measure of the actual costs to the successful litigant: Zesta Engineering Ltd. v. Cloutier, at para. 4; Fehr et al. v. Sun Life Assurance Company of Canada, 2021 ONSC 8368 at para 83.
41Whether to award costs on a full indemnity basis was considered by the court in NDrive, Navigation Systems v. Zhou, 2021 ONSC 7772:
Enhanced costs should be awarded only on a clear finding of reprehensible conduct on the part of the party against whom the costs order is being made: Young v. Young, , [1993] 4 S.C.R. 3, at p. 17; Smith v. Inco Ltd., 2013 ONCA 724, at para. 61; Davies, at paras. 28-31.
The type of considerations that have attracted full indemnity costs are summarized at para. 125 of Envoy [Envoy Relocation Services Inc. v. Canada (Attorney General), 2013 ONSC 2622], as follows:
(a) “grave positive misconduct” on the part of the blameworthy party;
(b) but for the blameworthy party’s misconduct, the matter, or at least a significant component of the litigation, should never have reached the courts;
(c) the non-offending party did nothing to hinder, delay or confuse the litigation;
(d) the blameworthy party’s conduct was contemptuous, enforcing the “aggrieved party to exhaust legal proceedings to obtain that which was obviously his”;
(e) the matter involved a scurrilous attack on the administration of justice or waste of scarce judicial resources.
Analysis
42The Judgment makes findings that Alfredo’s behaviour was clearly blameworthy, wrongful, and self-serving, and to the detriment of his cognitively-impaired mother, Lucia. As stated at paras. 140 and 146 of the Judgment:
[140] Lucia was suffering from dementia and unable to recall her financial plans, in which she favoured Edi. Alfredo took advantage of Lucia, capitalizing on Lucia’s diminished mental capacity to encourage her to believe his false allegations that Edi had stolen from Lucia behind Lucia’s back. Alfredo then cut Lucia off from all her supports: her daughter, granddaughters, and family doctor. He took her to a new lawyer, who could not communicate with Lucia in her spoken language, which allowed Alfredo to be Lucia’s spokesperson. All of these actions facilitated Alfredo’s stated objective to obtain “his” share of Lucia’s assets.
[146] On the facts here, a presumption of undue influence arises see: Goodman Estate v. Geffen, , [1991] 2 SCR 353. Furthermore, there is ample evidence of Alfredo’s actual undue influence over Lucia: Alfredo’s wrongful accusations against Edi both undermined Lucia’s faith in Edi and allowed Alfredo to achieve his goal of providing him with full access to Lucia’s funds in life and a healthy share of her estate upon her death.
Scale of Costs
43While Alfredo’s conduct prior to the litigation may be characterized as reprehensible, I am not satisfied that his conduct during the litigation rises to the level of conduct described in NDrive and Envoy. I find that Alfredo’s conduct falls short of what would be required to attract a cost award against him on a full indemnity basis. Based on my trial findings, I have little hesitation in concluding that Edi is entitled to her costs of the trial on a substantial indemnity basis.
44I note, however, that the Krawchenko Decision makes no finding of reprehensible or blameworthy conduct on the part of Alfredo related to the Applications or motions. Indeed, even after being advised of Alfredo’s arrest on criminal charges related to Lucia and his non-attendance on the two-day hearing of the Applications and motions, Krawchenko J. refused to grant the order sought by Edi to restore the pre-June 1, 2020 status quo, choosing, instead, to appoint the PGT as Lucia’s Guardian, pending a determination of the issues at trial. For that reason, I conclude that costs associated with that portion of the litigation ought to be awarded on a partial indemnity scale.
Quantum of Costs
45As to the quantum of fees, I have determined that Edi is not entitled to all the costs she has claimed.
46Of greatest concern are the fees claimed in respect of the Default Judgment. These fees were incurred after the Krawchenko Decision, in the misguided belief that because Alfredo had been noted in default, a trial would no longer be necessary, and that the orders Edi sought could, and would, be granted on a paper record. For the reasons already set out, that assumption was incorrect.
47For these reasons, I disallow the fees in the amount of $27,577.50 claimed in respect of the Drafting and preparation of the Motion for Default Judgment materials (sic).
48In addition, I disallow the fees of $4,003.00 claimed in respect of the Case Conference of September 12, 2022, as the Endorsement is silent as to costs. I would also disallow the $380.00 Edi claims for attendance at the February 19, 2025 Case Conference, at which the costs of the PGT and S.3 Counsel were fixed: Alfredo had no notice of the February 19, 2025 hearing, and the Endorsement was silent as to Edi’s costs.
Determination of Quantum
i) Trial-Related Fees
49After making the reductions above, I find that Edi’s trial-related full indemnity fees should be reduced by $31,960.50 ($27,577.50 + $4,003 + $380) leaving a balance of $87,392.00 ($119,352.50 - $31,960.50). On a substantial indemnity scale (90%) those trial-related fees total $78,652.80.
50Having considered the applicable principles, including whether these fees represent a fair and reasonable contribution by Alfredo, as the unsuccessful party, to Edi as the successful party, I fix and award Edi’s trial-related fees on a substantial indemnity scale in the amount of $78,652.80, to be paid by Alfredo.
ii) Fees related to the Applications and Motions
51For the reasons above, I find that Edi’s full indemnity fees related to the Applications and motions total $111,345.50. Again, for the reasons set out and in consideration of the applicable legal principles, I fix and award these fees on a partial indemnity basis (65%), in the amount of total $72,374.58, to be paid by Alfredo.
Orders Made
52For the reasons set out, I order Alfredo to pay Edi’s fees and disbursements costs of this litigation as follows:
- Disbursements in the total amount of $18,988.48 ($18,699.95 + $288.53) plus HST, where applicable;
- Trial-related Fees in the amount of $78,652.80, plus HST; and
- Fees related to the Applications and motions in the amount of $72,374.58 plus HST.
Sheard, J.
Released: July 17, 2025
1With the exception of the new Will executed by Lucia on or after June 1, 2020, the validity of which was not before this court.
2R.R.O. 1990, O. Reg. 194