Tag: Costs

10 Apr

We can’t cut our smartphone habit – but we can cut the cost

Suzana Popovic-Montag Estate & Trust, Estate Litigation, Estate Planning, Uncategorized Tags: , , , 0 Comments

Talk to someone who lives in Europe or travels there for extended periods. Ask them what they pay for their phone plan. You’ll be shocked and disheartened.

The costs are a fraction of what they are in Canada. In February, Global News compared the costs of phone plans across Canada, and also summarized (in the chart below) Canadian government research comparing wireless costs in Canada with those in other parts of the world. It’s clear that wireless costs in Canada are among the highest in the world.

 

You can read the entire article here.

Why so high

There are many reasons given for the high wireless prices in Canada. Most are a variation of “the high cost of building infrastructure in a large country with a small population” and “lack of competition.”

No one has a definitive answer, but the lack of competition angle certainly makes some intuitive sense. There are only three major carriers (Bell, Rogers, and Telus) and they own most of the discount brands. Even with a discount brand, the savings are underwhelming. Compare that to Europe, where competition is fierce and low prices are the norm.

Cut your costs

The fact that the three major carriers all have discount brands suggests that there is room to haggle in terms of the price you pay. In most cases, if you tell the carrier that you are price shopping and simply ask them for a lower price, they’ll provide a discount. It may be for a set period of time, but it will be less.

Of course, calling the carrier and haggling is time-consuming and, for many people, uncomfortable. That’s why services have popped up that will do the haggling for you, in exchange for a cut of your savings.

For example, MyBillsAreHigh specializes in reducing the monthly costs of wireless, internet, landline and cable services for business and individual customers. You can check them out here.

A company like this can save you tens of dollars a month, which, when multiplied over a lifetime, can result in total savings of thousands of dollars. Imagine you could have this much extra to pass on through your estate. And that is just the savings for one bill! Multiple that by the number of cellular bills you pay for your family members and your internet, landline and cable services. Depending on how many services you subscribe to, you could save a significant amount over your lifetime. Those kinds of savings could make a drastic difference in the type of estate you pass on and alter the lives of your estate’s beneficiaries. So with services that can easily provide us with such savings over the course of our lifetimes, we should all be exploring these options.

I haven’t myself tried this service yet, but I’ve seen it featured in the news and on shows like CBC Marketplace. I have to admit, I’m tempted – and it wouldn’t take much to get me to act.

Thanks for reading … have a great day!

Suzana Popovic-Montag

11 Mar

The Risk of Personal Costs Awards in Estate Litigation

Rebecca Rauws Litigation Tags: , , , , , , , , , , 0 Comments

In the past, in estate litigation matters, it was often the case that some or all of the litigating parties’ costs would be paid out of estate assets. However, in more recent years, the courts have been moving away from this general practice, and increasingly making costs awards providing for the payment of costs by one of the parties, personally. In particular, if the court views a party, including an estate trustee, to have behaved improperly or unreasonably, it may decide that such a party must pay the other party’s costs, personally. We have blogged about instances of such an outcome before.

A recent decision of the Ontario Superior Court of Justice has reaffirmed this general trend. The decision in Ford v Mazman, 2019 ONSC 542, involved a motion to pass over the named estate trustee, and appoint the two sole beneficiaries of the estate in question, as estate trustees. Although the named estate trustee and the beneficiaries were initially on good terms, within several months of the testator’s passing, the relationships began to break down, with the estate trustee beginning to make accusations towards the beneficiaries, in relation to the testator. The court found that it was “not a case of mere friction—this is a case of outright hostility from [the estate trustee] to the beneficiaries”, also commenting that it was difficult to fathom why the estate trustee acted as she did, and that her accusations were unwarranted. Ultimately, the court made an order passing over the estate trustee.

After the parties were unable to reach an agreement as to costs, the court made an endorsement in this regard in Ford v Mazman, 2019 ONSC 1297. After a discussion of the costs principles applicable to estate litigation, the court stated as follows:

“I am mindful that an estate trustee should be fully compensated for any reasonable costs incurred in the administration of the estate. However, the actions of the [estate trustee] are far from reasonable. I was not provided any rationale as to why her animus became necessary in the administration of her good friend’s estate.”

Ultimately, the court made a costs award in favour of the beneficiaries, payable by the estate trustee, personally.

This costs decision serves as an important reminder that parties entering into estate litigation proceedings should not count on their costs being paid out of the estate. Additionally, even though the estate trustee’s conduct in this case appears to be extreme, litigants should still keep in mind the importance of acting reasonably.

Thanks for reading,

Rebecca Rauws

 

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23 Nov

Settling Everything But Costs, Again

Paul Emile Trudelle Estate & Trust, Estate Planning, Trustees, Uncategorized, Wills Tags: , , , 0 Comments

On March 27, 2014, I blogged on the issue of settling litigation, but leaving the issue of costs to the court. I noted the decision of Dhillon v. Dhillon Estate, 2009 CanLII 58607 (ON SC), where the matter was settled on the eve of trial, but the parties left the issue of costs to the court. The court declined to make any award of costs, as the factors to be considered in awarding costs had not been determined by the court.

In the decision of Koster v. Koster, 2018 ONSC 6896 (CanLII) released November 19, 2018, the issue arose again.  A motion was brought for summary judgment, but as the court determined that it could not decide the question without a trial, the motion was dismissed. The parties then went to mediation, where the matter was settled, except for the issue of costs. Pursuant to the settlement, the entitlement and quantum of costs was to be determined by the court.

There, the court declined to make any costs award. The court referred to the Dhillon decision.

In refusing to award costs, the court stated:

By definition, a settlement is a compromise between the litigants’ positions. Also by definition, it is agreeable to all the parties. It is impossible to say with accuracy why any particular settlement was acceptable to one or other of the parties. Put another way, an award of costs is typically grounded in findings by the court as to the parties’ respective success and the impact of their actions during litigation, which are findings not made in the event of a settlement.

The court also cited from the decision in Waterloo North Condominium Corporation No. 161 v. Redmond, 2017 ONSC 1304 (CanLII). There too, the court declined to determine liability for costs following a settlement. There, the court stated:

Moreover to embark upon a full examination and adjudication of the merits of the parties’ respective substantive claims and defences for the sole purpose of determining the question of costs, when those substantive issues have been settled by the parties, would run counter to the principle in McLellan that costs are incident to a determination of the rights of the parties and are not to be made themselves the subject matter of the litigation.

As I concluded in my March 2014 blog, settling but leaving the issue of costs to the court should be avoided. Courts will be reluctant to relitigate the entire matter in order to make a determination as to who was right and who was wrong and therefore entitled to or liable for costs.

 

 

Have a great weekend.

Paul Trudelle

02 Oct

Full Indemnity through Blended Costs: The Estate of Irmgard Burgstaler

Doreen So Elder Law, Guardianship, Passing of Accounts, Trustees, Uncategorized Tags: , , , , , 0 Comments

The Estate of Irmgard Burgstaler (disability), 2018 ONSC 472, was a costs decision that arose from an application to pass attorney accounts.  Erwin  was named as the attorney for property for his mother, Irmgard.  Erwin was ordered to pass his accounts and his siblings, Barbara and Peter, objected.

A four-day hearing took place.  Erwin was self-represented and his accounts were not in court format pursuant to Rule 74.17 of the Rules of Civil Procedure.  Extensive written submissions were also filed by both sides.

Erwin was found to have breached his fiduciary duty to Irmgard when $82,000.00 was taken from Irmgard and applied towards the purchase of a home in Erwin’s name.  Erwin also took approximately $44,000.00 from his mother’s accounts to pay his legal fees in the proceeding at issue and the Court found that this expense was not for Irmgard’s benefit.  Certain other expenses were ordered to be repay to Irmgard as well as the repayment of $5,000.00 from the sale of Irmgard’s trailer.

Given their success, the Objectors sought full indemnity on a blended basis from Erwin (15%) and the Estate (85%).  In reviewing the jurisprudence on costs in estate matters, Justice Shaw found that this case fell within the public policy exemption for due administration of estates and allowed the Objectors’ claim for full indemnity.

That said, Justice Shaw disagreed with the Objectors’ proposed 15/85 split on the basis of the “losers pay” principle in general civil costs.  Justice Shaw ordered Erwin to pay the Objectors’ costs on a partial indemnity scale while the Estate was ordered pay the full remaining balance.  In this case, partial indemnity appears to be close to 70% of the total claimed based on the fixed amounts that were ordered.

Thanks for reading!

Doreen So

24 Aug

Sometimes You Lose, Even When you Win: The Impact of Costs

Paul Emile Trudelle Estate & Trust, Estate Planning, Uncategorized Tags: , , , , 0 Comments

King Pyrrhus of Epirus defeated the Romans at the Battle of Heraclea in 280 BC and the Battle of Asculum in 279 BC. He went on to lose the Pyrric War. Of the battles won by Pyrrus, Plutarch has quoted Pyrrhus as saying “If we are victorious in one more battle with the Romans, we shall be utterly ruined.”

The same observation can be made of some civil litigation.

VB was injured while running on an indoor track at McMaster University. He sued the other runner, the running club, the running coach and the university. He and his family members claimed damages of $1.1m, plus interest and costs.

After a 13 day trial, the jury found that VB and his family suffered damages totalling $104,885. The runner and the university were not found liable. The coach and the running club were found 60% liable, and VB was found 40% contributorily negligent. Thus, VB and family were to recover approximately $60,000.

Then came the decision on costs.

Offers to settle were made before trial. Collectively from the defendants, the offer totalled $180,000. The plaintiffs’ offer was said to be for $1,216,550.

The judge in his costs reasons noted that as the trial was a jury trial, he could have “blithely sat back and let the costs clock tick away”. The judge didn’t do this. Rather, the judge twice suggested that the parties agree to a midtrial pretrial with another judge, to see if the matter could be settled. The plaintiff refused. “That kind of opportunity can be fruitful as counsel have seen how the case has evolved and with a lot of things in life, how its evolution was different from that which was expected. … The continuation of the trial did not make economic sense in terms of what could be gained by the plaintiff in the face of mounting costs for all parties. By continuing the trial, the likelihood, if any, amount being awarded being a ‘Pyrrhic’ victory loomed large.”

And Pyrrhic was the victory.

The plaintiffs received a judgment of $60,000. They were awarded costs against the running club and coach of $43,108. The plaintiffs were ordered to pay costs to the university of $95,000, and to the running club and coach of $69,156.

In addition, the plaintiffs may have had to pay their own lawyers.

Costs of a proceeding must always be front of mind. Further, the impact of reasonable offers to settle must be considered: both when making offers and when considering offers from the other side.

Thank you for reading.

Paul Trudelle

27 Jul

Legal Fees as a Settlement Consideration

Nick Esterbauer In the News, Litigation Tags: , , , , , , , , , , , 0 Comments

This weekend marks the end of the 105th Tour de France.  This year’s race has been full of controversies, first as a result of allegations of doping by pre-race favourite and four-time winner Chris Froome (and a related threatened cyclist strike) and subsequently ranging from disqualification of one cyclist for punching another to the inadvertent tear-gassing of cyclists by French police.

This spring, news surfaced regarding a settlement negotiated in respect of the claims against controversial cycling figure Lance Armstrong.  Armstrong’s former teammate, Floyd Landis, had commenced proceedings against him in 2010 under the False Claims Act.  The United States government became involved in the fraud proceedings in 2013 after Armstrong admitted to using performance-enhancing drugs after years of public denial.

The litigation commenced by Landis was settled earlier this year.  Terms of settlement were reported to involve a payment by Armstrong of $5 million (of the $100 million claimed against him), as well as a payment to Landis of $1.65 million in legal fees.  Accordingly, Landis’ one-quarter share in the settlement payment is less than what he will receive in legal fees.

It is not unusual in our work to see settlement terms involving the payment of one or more party’s legal fees as part of or in addition to a settlement payment.  Especially where litigation spans the better part of a decade, the legal fees incurred can rival or exceed the quantum of the settlement payment itself and may form an important part of negotiations.

Have a great weekend,

Nick Esterbauer

26 Mar

What is a Rule 49 Offer to Settle?

Kira Domratchev Litigation Tags: , , , , , , , 0 Comments

Ontario is a jurisdiction where parties are encouraged to settle their legal disputes well before reaching the ultimate hearing of a matter, and as such it is not uncommon for opposing parties to exchange offers to settle throughout the duration of the dispute.

An additional incentive provided for under the Rules of Civil Procedure to settle the matter is what is called a “Rule 49” offer to settle. Generally, it operates by ensuring a costs award that is favourable to a party who:

(i)         makes an offer to settle that complies with the specifications of Rule 49; and

(ii)        achieves a more favourable result at the hearing than offered under the offer to settle.

General Requirements

An offer to settle under this rule can be served by a plaintiff, defendant, applicant or respondent in an action, application, counterclaim, third party claim, crossclaim or motion. This means that this rule is applicable to motions on discrete issues within a legal dispute and is not limited only to offers made to settle the entire dispute.

In order to be eligible for the benefits provided under Rule 49, the following requirements must be met:

(i)         the offer to settle must be made at least 7 days prior to the commencement of the hearing;

(ii)        the offer to settle must be fixed, certain and understandable; and

(iii)       it cannot be withdrawn or expire before the commencement of the hearing.

In deciding whether or not to make an offer to settle under this rule, it is important to take into account the fact that the court, in exercising its discretion with respect to costs, may take into account any offer to settle made in writing, the date the offer was made and the terms of the offer.

Cost Awards

Where a plaintiff or applicant makes an offer under this rule and the judgment is as or more favourable to that party than the offer to settle, the plaintiff or applicant is entitled to the following:

(i)         costs on a partial indemnity basis to the date of the offer to settle; and

(ii)        costs on a substantial indemnity basis from that date forward.

Where a defendant or respondent makes an offer under this rule and the judgment is as or less favourable to the plaintiff or applicant than the terms of the offer to settle, the following applies:

(i)         the plaintiff or applicant is entitled to partial indemnity costs to the date that the offer to settle was served; and

(ii)        the defendant or respondent is entitled to partial indemnity costs from that date forward.

In the event that a party that made an offer to settle under this rule wishes to withdraw it, such withdrawal must be clear and unequivocal.

For more information on the manner in which Rule 49 operates, the Ontario Bar Association summarized the general rules and case law related to it here: https://www.oba.org/getattachment/Sections/Civil-Litigation/Resources/Resources/Litigation-Fundamentals-Sunrise-Series/Offers-to-Settle/Rule49OffersToSettle.pdf

Thanks for reading.

Kira Domratchev

Find this blog interesting? Please consider these other related blogs:

Revoking a Rule 49 Offer to Settle

Cost Awards and Offers to Settle

Offers to Settle: Open Until When?

 

12 Jan

Jail Time for Contempt of Civil Order

Hull & Hull LLP Estate & Trust Tags: , , 0 Comments

A litigant in his late 80’s was recently sentenced to 30 days in jail for contempt of a Court order.

The litigant was found to be a vexatious litigant in 2008. The Vexatious Litigant Order precluded him from commencing or continuing any judicial proceeding or motion without leave of a judge of the Superior Court. Further, the litigant was not permitted to seek leave against certain named parties unless certain outstanding costs awards were paid in full.

The litigant was found to be in contempt of this 2008 Order on October 20, 2017.  The penalty phase of the motion was heard on January 4, 2018, and reasons were released on January 5, 2018.

In the penalty phase decision, the motions judge reviewed the court’s power when determining a penalty for contempt. The court may order that the person in contempt:

(a) be imprisoned for such period and on such terms as are just;

(b) be imprisoned if the person fails to comply with the terms off the order;

(c) pay a fine;

(d) do or refrain from doing an act;

(e) pay such costs as are just; and

(f) comply with any other order that the judge considers necessary.

The judge went on to set out the principals of sentencing, which are similar to those found in criminal law. The underlying purpose of contempt orders is to “compel obedience and punish disobedience”, and “the contemnor must be deterred from further acts of contempt. Perhaps more importantly, respect for our courts must be maintained and violations punished adequately in order to deter future violations”.

The court went on to consider

  1. Any mitigating or aggravating factors;
  2. Whether the sentencing objectives could be accomplished without a period of sentencing, and if so, how; and
  3. If the answer to 2 was no, what period of jail time was appropriate.

As an aggravating factor, the court noted that since the 2008 Vexatious Litigant Order was made, the litigant has carried on in complete disregard of that Order. The litigant was previously found in contempt of the 2008 Order, but because of his age (he was 81 at the time), he was not jailed. Further, there was no apology or expression of remorse from the litigant.

The court accepted that a fine was not appropriate, as the imposition of a fine would only make it less likely that any costs awards would ever be paid by the litigant.  The court also noted that the litigant was previously warned by a judge that if he was subsequently found in contempt, he could well face jail time. Additionally, the litigant had previously been committed to prison overnight for a separate act of contempt.

In light of the nature of the contempt, the court considered a sentence of 6 to 9 months. However, due to the litigant’s age (“either 88 or 89”) and alleged health issues, a sentence of 30 days was determined to be appropriate. Costs were awarded against the litigant on a substantial indemnity basis in the amount of $15,280.50.

(As an aside, the litigant has brought a motion to discharge, set aside, vary or give directions with respect to the finding of contempt, which is scheduled to be heard on January 12, 2018. Accordingly, the sentence is to begin on January 12, 2018 at 4 pm, unless the judge hearing the motion to vary, etc. orders otherwise.)

Have a great weekend.

Paul Trudelle

 

06 Jul

Billing Physician Assisted Deaths

Doreen So Ethical Issues, General Interest, Health / Medical, In the News, News & Events Tags: , , , , , , , 0 Comments

I have blogged about assisted suicide in the past with reference to the Canadian television show Mary Kills People.  The availability of assisted suicide continues to be a subject of public interest as each province deals with the implementation of the outcome of Supreme Court of Canada decision in Carter v. Canada (Attorney General).

As reported by The Globe and Mail, one particular doctor has removed himself from a roster of doctors who will administer assisted deaths because of changes to the physician fee schedule in British Columbia.  Notwithstanding his support for assisted death, Dr. Jesse Pewarchuk of Vancouver Island wrote a letter to his colleagues to explain that the new fee schedule made “medical assistance in dying” economically untenable for his practice.

According to Kelly Grant of the Globe and Mail,

“Under the new fee schedule, B.C. physicians will now be paid $40 for every 15 minutes, up to a maximum of 90 minutes, to conduct the first of two eligibility assessments required by law. Each of the assessments has to be provided by a different clinician. That works out to $240, a significant increase from the $100.25 interim assessment fee that has been in place in B.C. since shortly after assisted death became legal.

For second assessments, the time is capped at 75 minutes.

In the case of providing an assisted death, the province has set a flat fee of $200, plus a home-visit fee of $113.15.”

Within the same article, it was reported that Ontario does not have specific billing codes for this type of medical service at this present time.

 

 

 

 

 

Thanks for reading.

Doreen So

01 Jun

Costs Decision on Ozerdinc Family Trust v Gowling Lafleur Henderson LLP

Rebecca Rauws Litigation Tags: , , , , , , , , , , , 0 Comments

We previously blogged about the decision in Ozerdinc Family Trust v Gowling Lafleur Henderson LLP, 2017 ONSC 6, where a failure to advise of the deemed disposition date of trust assets resulted in an avoidable tax liability. Recently, additional reasons were released which set out the court’s decision with respect to costs arising from the motion for partial summary judgment. The court awarded costs to the successful plaintiffs in the amount of $160,889.76 (including tax) plus disbursements of $100,000.00

The costs decision is interesting as it thoroughly considers a number of elements of the litigation in relation to the factors listed in Rule 57.01 of the Rules of Civil Procedure.

Interestingly, while the court held that the matter was “obviously a very complex matter”, it nonetheless concluded that the costs claimed by the plaintiffs were higher than required for a motion of this nature. The court also noted, in considering the time spent by the plaintiffs on the motion for partial summary judgment, that the “total amount of time spent exceeds a fair amount and that which would reasonably be expected to be required in the circumstances”. This conclusion was made despite the court’s acknowledgment that the bulk of the plaintiff’s time was spent by junior counsel.

Another interesting comment was related to the costs awards with respect to disbursements. It seems that a large portion of the plaintiffs’ disbursements were expended to retain several experts. However, the court found that the amount claimed by the plaintiffs was out of proportion with the amounts spent by the defendants to address similar issues, and reduced the award for disbursements accordingly.

This decision may serve as a helpful reminder to litigators to be aware of the amount of their legal fees and disbursements. One should also try to ensure, as much as possible, that costs are proportional, both with respect to the size of the matter at issue, but also, based on this costs decision, with respect to the costs that may be incurred by the other parties.

Thanks for reading,

Rebecca Rauws

 

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