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.
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