In contentious litigation, it is quite rare for a court to award complete indemnity costs to one of the parties. The decision to award costs, and the amount of such costs, is within the court’s discretion. There are a number of factors for the court to consider in exercising its discretion, as set out in Rule 57.01 of the Rules of Civil Procedure, including factors relating to the conduct of a party.
Where a party has made an offer to settle pursuant to Rule 49 of the Rules of Civil Procedure, there are certain costs consequences if that party is successful, including the scale of costs to which they are entitled. Rule 49 specifically sets out when a party is entitled to partial or substantial indemnity costs. But in what circumstances will the Court increase the scale of costs to complete indemnity?
The recent decision of Churchill v Churchill, 2019 ONSC 5137 considered this issue. There had been a dispute between children over their mother’s estate. The plaintiffs were virtually entirely successful at trial as against the respondent, their brother, and had made several offers to settle that were more favourable to the brother than the results at trial. The court concluded that the plaintiffs were entitled to substantial indemnity costs from the date of the offers made, but raised the additional question of whether the scale of costs should be increased to complete indemnity, in view of the brother’s conduct throughout the proceedings. Citing the Ontario Court of Appeal, the court stated that, in order to increase the scale “the conduct of the losing party would have to be based on their serious misbehaviour so, as to fall within the category of ‘reprehensible’ behaviour”.
The court considered the brother’s behaviour, including his misappropriation of estate assets, failure to comply with court orders, and perseverance with meritless claims despite a number of court hearing with rulings adverse to the brother and two adverse costs awards. Although the brother was self-represented, that did not justify his conduct.
The plaintiffs’ complete indemnity costs were approximately $77,000.00. Ultimately, the court concluded that the plaintiffs were entitled to more than substantial indemnity costs, and awarded them costs in the amount of $75,000.00.
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I recently came across a case out of the Court of Appeals of Texas (Royce Homes, L.P. v. Neel, 2005 Tex.App.LEXIS 1514) where the Court of Appeal overturned a jury’s determination of damages that was based on weak evidence from a construction defect expert. Although apparently well qualified, the expert simply estimated the costs of repairs based on his experience: he did not take any notes or measurements.
The court rejected the evidence as “ipse dixit” (sometimes spelled “ipse dexit”). The term is latin for “he said it himself”. The fallacy of logic is that by baldly asserting a state of affairs without evidence to support it sidesteps the argument. It is an assertion without proof. The fallacy is similar to an argument from authority.
My kids used to call me out on the use of ipse dixit all the time. When I made an assertion, they would ask “Why?” My usual, lazy, response was “Because I said so.”
Ipse dixit has been recognized as a problem in litigation, particularly in the area of expert evidence. In General Electric Co. et al. v. Joiner et ux, the U.S. Supreme Court recognized the problem of “opinion evidence which is connected to existing data only by the ipse dixit of an expert.”
The term has been used in several Canadian cases. For example, in Young v. Insurance Corp. of British Columbia, 2017 BCSC 2306 (CanLII), an expert gave evidence that damages in a motor vehicle accident were not caused by a sideswipe-type collision. At trial, the plaintiff objected to the evidence, with counsel asking “where is the science”. The court agreed, and rejected the evidence. The expert did not refer to his own assessment of sideswipe-type collisions. He did not refer to any studies or tests involving sideswipe-type collisions. As stated by the trial judge, “Instead, what we are left with is an exercise in ipse dixitism: it is so because I say it is so.”
In Lord’s Day Alliance fo Canada v. Regional Municipality of Peel et al., the issue was whether an exemption from Sunday closing by-laws was “essential for the maintenance or development of a tourist industry”. Town council said the exemption was essential, without citing any evidence. The Court of Appeal disagreed, holding that something more was required beyond council merely saying so. The legislation required proof that the exemption was essential, not just council deeming it to be essential.
In Lewis v. The King, 1949 CanLII 376 (QC CA), the Quebec Court of Appeal overturned a conviction for keeping a common betting house. In a concurring judgment, the appeal judge states that “there is no evidence, except the ipse dixit of the police officer, that the accused was the keeper of the place in which the search was made”.
In Ontario, Rule 53.03 of the Rules of Civil Procedure require that an expert report shall contain, inter alia, “The expert’s reasons for his or her opinion”.
As we head into elections, both here and in the US, keep your eyes open for ipse dixit.
Further, in litigation, be wary of ipse dixit evidence. Simply saying something is so does not make it so.
Make it a great weekend ahead. No ipse dixit. Provide proof.
There was a recent decision of the Ontario Superior Court of Justice on the issue of costs in a contested guardianship proceeding. Rather unusually, the endorsement in Howard Johnson v. Howard, 2019 ONSC 4643, dealt with the issue of costs after the parties have resolved the main dispute on consent.
In this case, there were two competing guardianship applications over Elizabeth. The applicants on the one hand were Elizabeth’s daughter and son, Marjorie and Griffin, and on the other hand, Elizabeth’s other son, Jon. All three of Elizabeth’s children were of the view that their mother was in need of a substitute decision maker for both the management of her property and for personal care.
While the endorsement does not specify who the competing applicants were seeking to appoint as Elizabeth’s guardian, the parties eventually settled on the appointment of CIBC Trust Corporation as Elizabeth’s guardian of property and all three children as Elizabeth’s guardians of personal care. On the issue of costs, Marjorie and Griffin sought full indemnity costs from Jon while Jon sought substantial indemnity costs from Majorie and Griffin or, in any event, that he be indemnified by Elizabeth for any amounts not recovered from his siblings.
Pursuant to section 3 of the Substitute Decisions Act, 1992, Elizabeth was represented by counsel throughout the proceeding and on the issue of costs. Submissions were made on Elizabeth’s behalf that she should not have to pay costs of the other parties or the outstanding balance of an invoice that was purportedly incurred by Elizabeth in a joint retainer with Jon.
The Court in this instance considered the modern approach to costs in estate litigation as set out in McDougald Estate v. Gooderham, 2005 CanLII 21091 (ON CA), with respect to Jon’s claim that Elizabeth ought to be responsible, at least in part, for his costs. The court relied on D.M. Brown J.’s (as he was then) comments that the discipline imposed by the “loser-pays” approach to estate litigation applies with equal force to matters involving incapable persons citing Fiacco v. Lombardi, 2009 CanLII 46170 (ON SC). Only costs incurred for the best interests of the incapable person could be justified as costs payable from the incapable’s assets.
In this case, the competing applications of the siblings were found to contain a number of ancillary issues beyond that of the appointment of a substitute decision maker for Elizabeth. The Court was ultimately unable to see how Elizabeth would have derived any benefit from her children’s disputes. Therefore, the children were all ordered to bear their own costs. There was also no clear benefit to Elizabeth from the invoice that was issued to her prior to the appointment of section 3 counsel and Jon was ultimately left to pay that balance.
At the end of the day, the only costs borne by Elizabeth, as the incapable person subject to two competing guardianship applications, were the costs of section 3 counsel pursuant to the section 3(2) of the SDA.
Here is a Bon Appetit recipe for a frozen margarita pie that we could all benefit from.
In Baca v. Tiberi, the court awarded substantial costs as against an attorney for property/estate trustee for maladministration of her mother’s property while she was alive, and of her estate following her death.
The litigation was settled prior to a court determination. However, under the settlement, the parties submitted the question of costs to the court.
In Baca, the court found that there was serious misappropriation by the attorney and estate trustee. The attorney added her name to her mother’s bank accounts and took out money for her own expenses. She caused her mother to incur tens of thousands of dollars of debt for the benefit of the attorney, her husband and sister. She moved into her mother’s home with her family and did not pay rent. She transferred title to the home to herself and her mother jointly. After the mother’s death, she transferred the home to herself and her husband. She mortgaged the home to pay her own debts.
At the costs hearing, the court asked the parties whether the attorney’s lawyer might have personal liability for costs. The attorney waived solicitor-client privilege and the lawyer was subjected to examination and made submissions.
The court awarded costs against the attorney and the lawyer on a “full indemnity” basis, after a reduction of $50,000 for excessive time spent, in the amount of $301,941.41, plus HST and disbursements. (The estate had a total value of approximately $1m.) The attorney and the lawyer were jointly and severally liable for costs. As between themselves, the attorney was to be liable for 75% of the costs, and the lawyer was liable for 25%.
In its ruling, the court was critical of the lawyer’s conduct. The court found that the lawyer pursued a goal that was unattainable. Further, the lawyer misrepresented facts to the court. In pleadings, the lawyer (not the client, per the court) denied assertions that were, to her knowledge, true. Further, the pleadings contained assertions that were known to be false. The lawyer allowed a misleading affidavit to be sworn by her client. The lawyer also failed to ensure that certain funds were held in trust in accordance with a court order. At a later hearing, the lawyer advised the court that the funds were held in trust when they were not.
The court found the lawyer liable, partially, on the basis that she knew of her client’s misconduct yet advised or acted on instructions to take untenable legal positions. She also took legal steps that costed her client and the other side hundreds of thousands of dollars, yet the steps did nothing to avoid “the only inevitable conclusion possible”: that her client would have to make the estate whole. There was no evidence that the client was ever advised of the situation.
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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!
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.
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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.
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.
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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.
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,