9.31: Other material to be filed
9.35: Checking calculations: assessment of costs and corrections
10.49: Penalty for contravening rules

Case Summary

The Plaintiff’s Bill of Costs in a foreclosure Action was reviewed by the Assessment Officer, as contemplated by Rule 9.35(1)(b). Pursuant to Rule 9.35(4), the Plaintiff’s counsel re-attended before Master Smart for the purpose of settling Costs. Master Smart noted that the Action was a standard residential foreclosure with little out of the ordinary. The Statement of Claim consisted of 10 boilerplate paragraphs, and included incorrect mortgage information. The Affidavit of Default was also a boilerplate document, and included information inconsistent with the Statement of Claim. Current title was not filed as required by Rule 9.31(a), although a copy of title was stapled to the back of counsel’s file folder. A Notice of Application was filed to accept an Offer to Purchase, but no material was filed in support of the Application, including the Offer to Purchase or a final Affidavit of Default.

The Plaintiff sought legal fees of $6,500.00, plus disbursements and other charges, representing 31 hours of time spent on the file, with no differentiation between lawyer and paralegal time. The Assessment Officer allowed legal fees of just over $5,000.00. Master Smart held that lenders in foreclosure proceedings attempt to reduce costs by downloading responsibility to lawyers, including many administrative tasks. That lenders demand lawyers perform administrative work does not make such tasks legal services which are recoverable against a mortgagor. Master Smart held that there was a failure to comply with the requirements of the foreclosure Rules, and that there were concerns regarding overpayment to the mortgagee. Master Smart allowed legal fees of $3,850.00, with the balance for disbursements and other charges as approved by the Assessment Officer. Master Smart also held that a determination as to whether Costs should be assessed pursuant to Rule 10.49(1) for contravening the foreclosure Rules would be made once counsel filed a full explanation of the mortgage balance calculation along with supporting documentation.

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