Deschamp Estate v. League Savings & Mortgage Company

Deschamp Estate v. League Savings & Mortgage Company Court Supreme Court Date 2001-03-26 Citation 2001 NSSC 47 Docket SK 6786 Judge/Registrar/Adjudicator Boudreau, Allan (Honourable Justice) Document Type Decision Relations Library Sheet - Deschamp Estate v. League Savings & Mortgage Company - 2001 NSSC 47 - 2001-03-26 - Library Sheet Decision Content S.K. No. 6786 IN THE SUPREME COURT OF NOVA SCOTIA [Cite as: Deschamp Estate v. League Savings & Mortgage Company, 2001 NSSC 47] BETWEEN: ESTATE OF CARL DESCHAMP, DAVID DESCHAMP and SONIA DESCHAMP PLAINTIFFS - and - LEAGUE SAVINGS AND MORTGAGE COMPANY, a body corporate, and GARY STEELE DEFENDANTS D E C I S I O N HEARD: At Kentville, Nova Scotia, on January 11, 12 and 15, 2001 BEFORE: The Honourable Justice Allan P. Boudreau DECISION: March 26, 2001 COUNSEL: Siobhan Doyle, Solicitor for the plaintiffs Wendy J. Johnston, Solicitor for the defendant, League Savings & Mortgage Company Leroy M. Lenethen, Q.C. Solicitor for the defendant, Gary Steele Boudreau, J. INTRODUCTION [1] Carl Deschamp died suddenly from an acute illness at the young age of 28. He had built a house with the assistance of mortgage financing just a few years earlier. His parents had fallen upon hard times financially and they had moved in with Carl. To everyone’s surprise and disappointment it turned out that the mortgage on Carl’s house was not life insured. His parents believed, from conversations with Carl, that he had life insured the mortgage. Through the Estate, Carl’s parents have now sued the Mortgage Company and the lawyer acting on the transaction claiming they were at fault in the failure to obtain life insurance. FACTS [2] Carl Deschamp was an industrious and conscientious young man. Although he had not immediately pursued his formal education upon graduating from High School, he had taken a few courses in accounting at Acadia University. He later worked with Mr. Ken Bower, a chartered accountant. It was Carl’s ambition to become a certified or registered public accountant and he completed a one year accounting course at Kingstec Community College in 1995. Carl had no significant health problems before his untimely death in December of 1995. [3] In 1992 Carl had decided to build a house with the assistance of his father who was a carpenter/contractor. By this time Carl was 25 years old and he had already obtained a number of loans for motor vehicles, etc. He had already purchased and had subdivided the property on which he was to build his house. Carl had obtained disability and/or life insurance on a majority of his previous loans, but not on all of them. For instance, the vendor of the land on which Carl was to build his house had taken back a mortgage of some $12,000.00 and there was no life insurance arranged to cover that debt. He had also obtained another loan or two without subscribing to the insurance. It also appears that Carl had no separate life insurance besides what he had obtained on bank or finance company loans. He was single and had no children or dependants at the time he obtained his mortgage in 1992. [4] The evidence shows that Carl and his parents had, on occasion, discussed the importance of disability and life insurance on loans . A good part of the Estate’s case turns on the conversations regarding insurance which Mr. and Mrs. Deschamp testified they had with their son Carl. The other part turns on the loan application with League Savings and Mortgage Company, on which Carl indicated he was interested in life insurance, and the resulting correspondence and insurance applications forwarded to Carl. [5] The first witness to testify about conversations with Carl was a long time friend, Vincent Fredericks. Mr. Fredericks stated that he and Carl had contact two to three times per week. On one occasion when Mr. Fredericks was unemployed and the topic of house insurance came up, Carl is said to have uttered words to the effect that “his mother and father would never have to worry about it”. Carl did not mention insurance directly and Mr. Fredericks said he assumed Carl was referring to insurance. Mr. Fredericks also stated that he was not familiar with Carl’s finances and that the two had never discussed life insurance or wills directly. [6] Carl’s mother, Sonia Deschamp, testified. She said that Carl was a very private person as far as his finances were concerned. She referred in her evidence to Tabs 45 to 50 of Exhibit # 1 which are copies of loan applications she found in a metal box in Carl’s office/bedroom. She also testified to a general family discussion with Carl when he was building his house and that the topic of insurance had come up, but she could not recall any specifics. She said she and her husband assumed that Carl had appropriate insurance. [7] Mrs. Deschamp testified about an incident when she and her husband thought Carl may have been involved in a car accident. Mr. Deschamp left the house to go check, but it turned out that it was not Carl who had had the accident. She said Carl arrived home approximately an hour later and that she and her husband told Carl they thought he had been involved in the car accident. Carl is said to have replied to the effect that they did not have to worry, everything was looked after if something happened to him. [8] Mrs. Deschamp also testified that while Carl was in hospital, around December 5, 1995, she went to the Credit Union in Waterville to inquire if Carl’s loan carried disability insurance. She stated the manager told her that there was no disability insurance, but that there was life insurance. After Carl’s death on December 31, 1995, Mrs. Deschamp said she went to the Credit Union with the death certificate and gave it to the manager who apparently telephoned League Savings in Halifax and was told there was no life insurance coverage. Neither Mrs. Deschamp nor her husband discussed any financial matters with Carl during the month he was in hospital prior to his death. [9] Mrs. Deschamp testified that at least on one occasion Carl had told his parents that they should have a will. She said she called around to lawyers who may have had dealings with Carl to see if a will could be found. She also inquired of the second defendant, Gary Steele, who had acted on the mortgage transaction with League Savings, but no will was ever found. [10] Mr. and Mrs. Deschamp then retained Alan Tufts, Q.C., to represent their and the Estate’s interests. Mr. Tufts was in the process of obtaining the mortgage file from Mr. Steele when Mr. and Mrs. Deschamp assisted by attending at Mr. Steele’s home to retrieve the file for Mr. Tufts. They obtained the file from Mr. Steele and took it home until the next business day when they gave it to Mr. Tufts. Mrs. Deschamp testified she and her husband never looked in the file or added anything to the file. There is a serious issue as to what the file contained when it was retrieved from Mr. Steele. There are many letters, applications, etc., now contained in the file, which is Tab 1 of Exhibit # 1. The presence of these materials in the file when it was retrieved from Mr. Steele is now seriously contested. [11] Mrs. Deschamp testified she did not find any papers relating to mortgage insurance at the home after Carl died; yet there are several letters and applications addressed directly to Carl’s home relating to mortgage insurance now in the file which they retrieved from Mr. Steele’s home. The question is how did they most probably get there? Mrs. Deschamp stated that she brought numerous documents to Mr. Tufts’ office and that these are pages 56 to 95 of Tab 1 of Exhibit No. 1. Mrs. Deschamp testified she could not recall finding pages 18, 19, 20, 21, 28, 29, 30, 43, 44, 48, 49, 50, 51, 52, 104, and 109 in Carl’s home after his death, but that she had not made any written record or inventory of the materials she found at home. Carl had obviously kept copies and records of previous loan transactions with other financial institutions and it would stretch reasonableness to infer that he would not keep records or his own documentation in this case. [12] Mrs. Deschamp also testified she had not discussed with Carl any particulars of his land purchase in 1991 and she was not familiar with any of the details. She had also not been involved in Carl’s 1989 purchase and financing of his mobile home. She also did not know any of the particulars of the financing for Carl’s new home. She stated that Carl talked more with his father than with her. [13] David Deschamp, Carl’s father also testified. He stated the only discussion he had with Carl regarding finances was in 1992 when the home was being built, around the time the foundation was put in. He also said he told Carl to make sure he had building site insurance around the time they were installing the kitchen cupboards in September or October of 1992. Carl is said to have responded that everything was looked after and was going in place. There was no specific talk about mortgage insurance at the time or at any time after that conversation. Mr. Deschamp also confirmed the conversation testified to by Mrs. Deschamp regarding the time when the two had thought that Carl may have been involved in a car accident. [14] James Hawley, the Halifax branch manager of League Savings testified as to the Company’s usual or normal practices in dealing with mortgage insurance coverage. He stated that League Savings is not the insurer, but that coverage is provided by a separate entity, CUMIS Life Insurance Company, which has no corporate connections to League Savings. Mr. Hawley had no direct participation in Carl’s mortgage application except that he had reviewed the initial application which had been declined because Carl’s total debt service ratio was too high. The application had to be reworked with a debt consolidation in order to qualify. On cross-examination, Mr. Hawley noted that Carl had not disclosed his Bower mortgage debt on his loan application with League Savings. [15] Mr. Hawley also testified that the life insurance package goes to the borrower only and not with the instructions to the lawyer. The insurance package in this case would have been prepared by Judith Mothersell, a long time employee of League Savings who has been retired since 1994. It was the usual practice of League Savings to send a follow up notice after 30 days if a completed insurance application or a signed waiver had not been returned. It would then be further followed up, usually by a phone call or some other contact. These follow ups were usually kept in a “Pending Binder/Log”; however, several months covering the summer of 1992 could not be found. What is clear is that Carl was sent an insurance package to complete and return with his approval of mortgage which was confirmed in a letter dated July 7, 1992, addressed to him at his home address (Tabs 11 and 12 of Exhibit 1 and page 109 of Tab 1). It is also clear that Carl was sent a follow-up letter and insurance package by Judith Mothersell on October 5, 1992 (Tab 1, Page 48). None of these applications or a signed waiver were completed or returned to League Savings. These materials, together with a significant number of other documents which one would not expect to find in Mr. Steele’s file (such as pages 18, 20, 28, 29, 30, 31, 43, 104 and 109 of Tab 1) were found in the materials sent by Mr. Tufts, Q.C., to Mr. and Mrs. Deschamp’s present counsel. [16] Mr. Hawley also testified that in January of each year, the borrower would be sent an annual statement of mortgage activity for the previous year, also reminding the customer to be sure he or she was sufficiently covered with life and disability insurance (Page 104 of Tab 1). Mr. Hawley said it is not unusual not to get a response of any kind when an insurance application and waiver are sent to mortgagors, even after follow up. He said the average is about 50 per year in his branch alone. He stated there is no evidence whatsoever that Carl responded to the insurance applications and notices sent to him . Mr. Hawley also testified that insurance applications are not sent to solicitors but directly to the borrowers. He said that it was unusual to send a second insurance package but he could only guess as to why that would be. Mr. Hawley also testified there is no evidence that Carl ever paid any insurance premiums. THE GARY STEELE FILE [17] When Mr. Tufts forwarded his file to Mr. and Mrs. Deschamp’s present legal counsel he said the following in his covering letter dated October 30, 1996 (Page 1, Tab 1, Ex. 1): I would like to clarify that I received this file directly from Mr. Steele prior to my appointment as his Guardian. I also received materials from Mr. and Mrs. Deschamp which they apparently got from their son’s papers. I cannot confirm that all of the contents of Mr. Steele’s file are in the exact form in which I received them. It is possible that materials I received from Mr. and Mrs. Deschamp may have been deposited to Mr. Steele’s file. . . . . . . It may very well have been, however, that materials received from our clients, Mr. and Mrs. Deschamp, were included in Mr. Steele’s file. [18] Mr. Steele testified. He has not been practicing law since 1995. He said the file he has been shown as being his does not resemble the file which he had. He said it is full of material which has nothing to do with the property transaction for Carl Deschamp. [19] Mr. Steele also acted as solicitor when Carl purchased the property from Marjorie Bower and mortgaged it back to her. He testified that there was no discussion regarding insurance with Carl on that transaction. The land which Carl had purchased from Marjorie Bower was subdivided to create a smaller lot on which to build the house. Mr. Steele testified that he was not involved in the subdivision application nor in the change of use application . He stated this had been looked after by Carl. [20] Mr. Steele testified he would as a matter of routine advise clients what the mortgage payment included; i.e., taxes and life insurance if any, etc. He further testified that he recalls discussing life insurance with Carl because he, Mr. Steele, brought up the lengthy amortization period and the additional interest which that incurs. Mr. Steele said Carl told him that he could not afford a higher payment which a shorter amortization would entail and that he could not afford life insurance. Mr. Steele testified he told Carl that he may be able to obtain cheaper life insurance elsewhere and that he recommended Carl contact a Mr. Saunders who may be able to help him. He further testified that Carl left and said he would look into it. Mr. Steele said that was his last dealing or conversation with Carl on the subject of life insurance. Mr. Steele said the above discussion took place on October 14, 1992. Mr. Steele had two or three other contacts with Carl after that dealing with mortgage advances, but not life insurance. [21] Mr. Steele testified that he does not recall ever seeing the life insurance applications and related correspondence which are now contained in the file sent to Mr. and Mrs. Deschamp’s present counsel, although he admitted it was possible that Carl could have brought these into his office and that they were left in the file. [22] Mr. Steele was referred to pages 44 and 45 of Tab 1. This is an appraisal dated June 20, 1995. Mr. Steele testified that that document should not have been in his file because he closed his law practice on March 8, 1995. [23] Mr. Steele also testified he did not have any discussions with Carl regarding the preparation of a will. He also said that he could not have been at his home to hand over the file to Mrs. Deschamp on the date alleged because his trucking log book shows he was on a trip to South Carolina from January 10 to January 14, 1996. The records also indicate that a partial release which had been overlooked and left in the file was recorded on January 11, 1996, apparently by someone other than Mr. Steele. Mrs. Deschamp was adamant that she retrieved the file from Mr. Steele on January 12, 1996; however, it now appears she is mistaken. Mr. Steele testified he did not check the file or do any inventory of its contents before handing it to Mrs. Deschamp. [24] On cross-examination Mr. Steele was referred to numerous documents alleged to have been in his League Savings mortgage file for Carl. Page 18 of Tab # 1 is the original letter sent to Carl regarding the earlier Bower transaction. Mr. Steele testified this letter had no relevance to the matter under litigation and that it would make no sense to be in that file. Mr. Steele was also referred to pages 19, 21, 105, 28, 30, 43, 48, 49, 51, 104, 109 and 106 of Tab # 1. In each case Mr. Steele testified he had no recollection of receiving or seeing these documents in his file and that they appeared to be Carl’s originals or Carl’s copies of this documentation. [25] Mr. Steele’s alleged file also contains what appear to be title search notes of Alan Tufts, Q.C., which were apparently made when Mr. Tufts was acting for Mr. and Mrs. Deschamp after Carl’s death. Obviously these notes could not have been in Mr. Steele’s file. [26] Mr. Steele denied that he had any general responsibility to provide financial or insurance advice to mortgagor clients; however, he said it was his practice to recommend that clients obtain life insurance coverage. He said clients made their own decisions. Some obtained coverage, some didn’t and some waited. [27] On cross-examination Mr. Steele stated he was clear about his life insurance discussion with Carl some eight years ago because he was surprised that Carl declined a shorter amortization because he could not afford another $10.00 - $15.00 per month. He says he remembers it as an awkward moment. [28] On re-direct examination, Mr. Steele was referred to pages 35, 37 and 102 of Tab # 1. These are copies of letters to third parties which were for Carl’s records. Again, it is unusual that Carl’s copies would be in Mr. Steele’s file. ISSUES [29] The legal questions or principles involved are similar with regard to both defendants; namely: (1) What were the contractual and retainer obligations with regard to League Savings and Gary Steele respectively? (2) Were those contractual and retainer obligations fulfilled? (3) Did either of the defendants breach a common law duty of care to Carl Deschamp? CONTRACTUAL/RETAINER ISSUES [30] The applicable law is not a difficult question as it applies to issues 1 and 2. It essentially boils down to a question of fact rather than a question of law; i.e., what were the contractual obligations of League Savings and of Gary Steele to Carl Deschamp? [31] With regard to League Savings, its main contractual obligation was to provide Carl with mortgage financing. Because Carl had indicated on his mortgage application, Tab 8, Ex. # 1, that he was interested in mortgage life insurance coverage, it can be said that League Savings had an obligation to provide him with information or an opportunity to exercise that expressed interest. Did League Savings’ contractual obligation go any further? I find that it did not. There is nothing in the application or approval documents that requires League Savings to provide life insurance coverage or to ensure that Carl obtains or declines coverage in writing. Once League Savings had provided Carl with the life insurance information and applications, it had fulfilled its contractual obligations to Carl. There only remains the question of whether League Savings owed a common law duty to Carl to ensure that Carl followed up on his life insurance opportunity and whether it breached that duty and thereby caused a loss to Carl or to his estate. [32] With regard to Gary Steele, it is clear that his retainer or contractual obligation to Carl was to provide him and League Savings with the required documentation so as to enable Carl to obtain his mortgage financing. Is there any evidence that Mr. Steele was retained to arrange life insurance coverage for Carl’s mortgage? Mr. Steele has testified that he was not. The only possible evidence in this regard are the applications and letters alleged to have been in Gary Steele’s file. This documentation, even if it had been in Mr. Steele’s file, is not sufficient to establish, on a balance of probabilities, a contractual obligation or retainer on the part of Mr. Steele to arrange life insurance for Carl’s mortgage. As with League Savings, the remaining question is whether Mr. Steele owed a duty to Carl to ensure that Carl followed up on his life insurance opportunity and whether Mr. Steele breached that duty and thereby caused a loss to Carl or to his estate. [33] With regard to contractual obligations, I find that neither League Savings nor Mr. Steele had agreed to provide Carl with life insurance or had agreed to ensure that Carl followed up on his life insurance opportunities. [34 If liability were to arise in this case, it would have to be under the common law doctrine of negligence resulting from a breach of a duty of care occasioned by the relationship between the parties. COMMON LAW DUTY OF CARE [35] The question of when a common law duty of care may arise was discussed first in the historical case of Donoghue v. Stevenson [1932] A.C. 562 (H.L.). The analysis to be used was laid out in Anns v. London Borough of Merton [1977] 2 All E.R. 492 (H.L.) in the following passage from Lord Wilberforce: “. . . the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which breach of it may give rise.” [36] On the basis of the above quote, many subsequent cases have addressed the issue of proximity of relationships, the neighbour principle as it has been called. There have been no formulas designed or approved by the authorities which can tell us clearly what is a sufficient relationship or proximity to give rise to a duty of care in any given circumstance. This is well expressed by the following passage at page 95 of the Trial Division decision of the Federal Court in the case of Brewer Bros. et. al. v. The Queen in Right of Canada (1990), 66 D.L.R. (4th) 71 (FCTD), affirmed (1991), 8 CCLT(2d) 45 (Fed. C.A.) 86: “There exists no general principle which solves the problem upon what basis the Courts will hold a duty of care exists. While it is generally agreed that a duty must arise out of some ‘relation’ between the parties, no precise formula has evolved as to what that relation is.” [37] It is also accepted and would appear to be the simple application of common sense and logic that it need not be stated that one cannot impose liability on another by simply choosing to rely on the other. This was clearly stated in the case of McGauley v. B.C. (1990) 44 B.C.L.R. 217 (B.C.S.C.) by Hoddart, J., at page 232: “One cannot impose liability on another simply by choosing to rely upon him. Nor will knowledge that one is being relied on be enough to create liability. The reliance must derive reasonably from the relationship said to be proximate if it is to create a duty of care.” [Emphasis Added] [38] In the present case there is no question, as appears to be conceded by the defendants, that the relationships which existed between the parties is sufficient to give rise to a certain duty of care. The real and often difficult question is, what is that duty? In other words, what is its extent or scope? This is where the rubber meets the road, so to speak, and each case turns on its particular set of facts. [39] Counsel for all the parties have referred me to cases where courts have found liability in cases involving financial institutions and the failure to have life insurance coverage in place, and others where they have not. These cases appear to be very fact specific. One of the main factors in assessing the scope of the duty of care of the particular financial institution appears to be the degree of involvement of the financial institution in the insurance process. For example, if the institution takes an active role in completing the insurance application and forwarding it on to the potential insurers, it may take on an added responsibility or duty to see it through with follow-up, etc. On the other hand, if the financial institution merely advises the borrower of the availability of insurance and the means by which the borrower may obtain such coverage, then its responsibility or duty appears to be significantly reduced or limited. [40] The same reasoning would apply to the solicitor, Mr. Steele. ANALYSIS (LEAGUE SAVINGS) [41] In the present case, I find the actions of League Savings and the circumstances of this mortgage transaction place it in the reduced or limited category of responsibility. The situation in this case is very similar to the cases cited by the defendant, League Savings. (See Jones-Ottaway v. Bank of Montreal, [2000] A.J. No. 1177 (Q.B.); Kochanowski Estate v. Farm Credit Corporation, [1990] M.J. No. 185 (Q.B.). [42] I therefore find that League Savings’ duty was limited to providing Carl with the opportunity to obtain life insurance coverage and to ensure that it had provided him with that opportunity. That was clearly done in July and again in October of 1992. Carl would have been reminded again of the importance of insurance coverage with his annual mortgage statements in January of 1993, 1994 and 1995. Carl should have clearly been aware that he had no life insurance coverage on this mortgage loan. He had never paid any life insurance premiums and none was incorporated in the breakdown of his mortgage payment. This was clear from the approval of mortgage and subsequent statement documents. Moreover, Mr. Steele had explained this to Carl. I find it is clear that when Carl left Mr. Steele’s office in October of 1992 that he was well aware that he did not at that time have life insurance coverage. There is no evidence from which one could reasonably infer that Carl could believe that life insurance was in place. [43] I find that League Savings did reasonable follow-up of Carl’s stated intention that he was interested in mortgage life insurance and took reasonable steps in providing him with that opportunity. [44] I find that League Savings did not act negligently, but that it fulfilled its duty or obligation to Carl with regard to obtaining life insurance coverage. Could it have done more? Probably, but that is not the test. I find, on a balance of probabilities, that it was Carl who decided not to act on the insurance applications forwarded to him by League Savings in July and October of 1992. League Savings, having fulfilled its obligation or duty to Carl, cannot be held liable for Carl’s failure to obtain life insurance coverage. There is no evidence that League Savings took on any added responsibility toward Carl to ensure that he obtained life insurance coverage. League Savings cannot require that a signed waiver of insurance be returned, it can only suggest it, which it did on at least two occasions. As Mr. Hawley testified, this is not unusual and occurs approximately 50 times per year in his branch alone. In the circumstances, I find there can be no common law liability on League Savings. ANALYSIS (GARY STEELE) [45] As I stated previously, the evidence does not establish that there was a contractual obligation or retainer of Mr. Steele by Carl such that Mr. Steele agreed to ensure that mortgage life insurance was secured in this transaction. Did Mr. Steele otherwise owe a duty to Carl to ensure that this was done or to otherwise follow-up on this matter for Carl? [46] The plaintiffs rely in large part on the alleged contents of Mr. Steele’s file to support both a contractual obligation and a common law duty of care or obligation on the part of Mr. Steele to ensure the life insurance issue was followed-up. They allege that Mr. Steele must have been more involved in obtaining life insurance than he admits because the application forms and covering letters were found in his file. [47] I reject this allegation and find, on a balance of probabilities, that the materials relied upon by the plaintiffs were not in fact found in Mr. Steele’s file. These and numerous other documents now in the file, which one would expect to normally find in Carl’s papers, make this allegation highly improbable. I accept the evidence of Mr. Steele when he says that the file does not now resemble the mortgage transaction file which he had in his possession. I also accept his evidence when he says he does not recall seeing these documents before. [48] I also accept Mr. Steele’s testimony when he relates the conversation which he describes having with Carl in October of 1992 where amortization periods, interest, monthly payments and life insurance were discussed. I find that Carl indicated he could not afford life insurance at that time and took the responsibility himself to investigate that matter further. There is no evidence which I accept which points to any other probable conclusion. [49] In the result, Mr. Steele had fulfilled the scope of his duty to Carl in assisting him in finalizing his mortgage financing. He had not undertaken any additional duty or responsibility and none could be unilaterally imposed by Carl. Even if Carl had chosen to rely on Mr. Steele in this regard, such reliance would have been unreasonable on the facts which I have found and accepted. CONCLUSION [50] In the result, the consequences are unfortunate and doubly tragic for Carl’s parents, Mr. and Mrs. Deschamp. In the final analysis I must find that neither League Savings nor Mr. Steele are liable, either in contract or at common law, for Carl’s failure to obtain mortgage life insurance on this transaction. In all probability the responsibility must rest with Carl. The plaintiffs have failed to prove any other allegation on the required burden of proof. The evidence merely gives rise to speculation. [51] I therefore dismiss the plaintiffs’ actions against both defendants. I will grant an order accordingly, including the issue of costs if it can be agreed upon, otherwise I will entertain submissions on costs, either written or oral, as the parties prefer. Boudreau, J.