Notice of Application (Cost Awards)

MacLeod v. Rayment & Collins Ltd., 2006 CanLII 16363 (ON SC)

[6] The respondents have claimed costs in the amount of $47,469 for fees plus GST and disbursements for a grand total of $53,944.99 for both counsel, on a partial indemnity scale.

[7] In July 2005, the company redeemed the shares of the respondent, Richard Rayment and from that point forward the dispute was essentially between the applicants and Kevin Collins. Although the company and Collins have been separately named as respondents and relief has been sought against each, I see no reason for two counsel on this motion. When I raised this with counsel for the respondents they agreed that there was no conflict necessitating separate counsel and in fact Collins has throughout instructed each of them. Furthermore on the argument of the motion both counsel, not surprisingly took the same position. Although Collins may chose to have separate counsel represent him and the company, as that was not necessary it is not an expense that the applicants should bear. Accordingly I am only prepared to award costs for one firm.

[12] In considering what is reasonable to award for fees, it is usually of assistance to consider the Costs Outline of the opposing party. In the revised Cost Outline submitted by the applicants, the amount for costs claimed for this part of the motion is $44,200.97 of which $4,900.14 is disbursements. Although the disbursements claimed are considerably more than the disbursements incurred by counsel for the respondents, the fees claimed are substantially more than each set of counsel for the respondents. Part of the explanation is that Mr. Jones has claimed at the rate of $350 per hours. The rest of the difference appears to simply be that the applicants’ counsel spent many more hours on this aspect of the motion.

[13] If I did not have the benefit of the Costs Outline of the applicants I would have concluded that the time claimed by the respondents, even on the basis of a single set of counsel was somewhat high. However, as compared to the time spent by counsel for the applicants, the costs claimed are clearly reasonable. I also accept the submission of the respondents that the shifting position of the applicants added to the complexity of the hearing. I must however also take into account, as a factor, that the applicants obtained some small success on the motion.

[14] In all of the circumstances I fix the fees for one set of counsel for the respondents, in the amount of $19,000 inclusive of GST. Accordingly, the respondents are entitled to costs in the amount of $20,340.59. I will leave it to the respondents to decide how to allocate the costs awarded.

Deshevy v. Deshevy, 2018 ONSC 6851 (CanLII)

[21] Rule 38.08 of the Rules of Civil Procedure, RRO 1990, Reg. 194, states that where an application is abandoned or deemed to have been abandoned, the respondent on whom the notice of application was served is entitled to the cost of the application, unless the court orders otherwise.

[22] Rule 57.01 of the Rules sets out a number of factors that the court ought to take into account in exercising its discretion regarding awarding costs.

[23] The modern approach to fixing costs and estate litigation is to carefully scrutinize the litigation and, unless the court finds that one or more public policy considerations applies, to follow the cost rules that apply in civil litigation. Considerations may include where the litigation arose as a result of the actions of the testator or those with an interest in the residue of the estate or where the litigation was reasonably necessary to ensure the proper administration of the estate. If there were reasonable grounds upon which to question the execution of the will or the testator’s capacity in making the will, it is again in the public interest such questions be resolved without costs to those questioning the wills validity. (See Canada Trust v. Gooderham, 2005 CanLII 21091 (ON CA) paras 78-80)

[24] In an unsuccessful will challenge, a plaintiff may be ordered to pay partial indemnity costs to the estate. A plaintiff should be given reason to pause and reflect upon the consequences of unsuccessful litigation before commencing it. (See Beaurone v. Beaurone, (1997), 31 O.T.C. 236 (Gen. Div.))

TSCC No.1600 v. Owners of TSCC No. 1556, et al., 2018 ONSC 521 (CanLII)

[6] The applicant argues that Mr. Hatahet is not entitled to costs because counsel did not bring a costs outline to the hearing of the applications as required by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In the alternative, counsel argues that six hours of time is reasonable in costs and notes that Mr. Hatahet’s counsel’s bill of costs does not break down the hours allocated to various tasks, but rather lumps all the tasks together in one sum.

[7] Costs are in the discretion of the court: s. 131, Courts of Justice Act, R.S.O. 1990, c. C.43. The court is to exercise its discretion taking into account the factors enumerated in r. 57.01.

[8] In my view, Mr. Hatahet is entitled to some measure of costs notwithstanding his procedural failing in not bringing a costs outline to the hearing. Mr. Hatahet participated in successfully resisting the applicant’s application.

[9] However, costs must be fair and reasonable taking into account, among other things, the reasonable expectations of the unsuccessful party: Boucher v. Public Accountants’ Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 at paras. 24 and 38, (C.A.).

[10] In this case, the applicant’s costs outline discloses that it would have sought $7,214.70 in fees plus a $750 appearance fee. T.S.C.C.’s counsel prepared a significant application record, attended examinations, conducted research, prepared a factum and delivered significant oral argument.

[11] In my view, the costs sought by Mr. Hatahet are not fair and reasonable or in accordance with the applicant’s reasonable expectations. I accept the applicant’s argument that reimbursement for six hours of time at counsel’s partial indemnity rate is fair and reasonable.