Court of Appeal for Ontario

CITATION: Belvedere v. Brittain Estate, 2009 ONCA 691

DATE: 20090930

DOCKET: C47690

BEFORE: Rosenberg, Armstrong and Watt JJ.A.

BETWEEN

Lora Belvedere

Plaintiff (Respondent)

and

The Canada Trust Company, Estate Trustee of the Estate of Jeffrey Brittain, deceased

Defendant (Appellant)

COUNSEL:

Paul D. Amey and Heather A. Hall, for the appellant

Lou-Anne F. Farrell, for the respondent

COSTS ENDORSEMENT

[1] Ms. Belvedere brought an action against the Estate of Jeffrey Brittain (the “Estate”) based on constructive trust. She succeeded at trial and was awarded a sum of $1,750,000.00. The Estate appealed. On January 6, 2009, we allowed the appeal, set aside the trial judgment and dismissed Ms. Belvedere’s action.

[2] The parties have now made submissions to us in respect of the costs of the trial.

[3] The Estate submits that it can justify costs of $138,864.00 inclusive of disbursements and G.S.T. This amount is calculated on a partial indemnity scale up to the date of the Estate's offer to settle and a substantial indemnity scale thereafter. However, the Estate limits its request to $125,000.00 inclusive of disbursements and G.S.T.

[4] In the alternative, the Estate submits that it can justify costs on a partial indemnity scale throughout in the amount of $119,378.00. However, it limits its request to $95,000.00 inclusive of disbursements and G.S.T.

[5] The Estate also notes that after the trial, the respondent requested costs in an amount exceeding $120,000.00. The parties ultimately settled on $97,000.00, which the Estate describes as “essentially a substantial indemnity award”.

[6] The respondent submits that there should be no award of costs made against her because she is impecunious and dependent on her parents.

[7] The respondent points out that although we dismissed the action, we did not overturn the trial judge’s finding that Mr. Brittain intended to benefit Ms. Belvedere on his death with a large sum of money based on the value of his RRSPs. While the respondent is correct, we observe that this finding was not directly at issue in the appeal. The outcome of the appeal turned on the findings that no cohabitation agreement was ever signed and Mr. Brittain’s will was never changed to reflect his intentions. There was no legal basis upon which the respondent could succeed against the Estate. This does not mean that we are unsympathetic to Ms. Belvedere’s circumstances, nor does it mean that we should ignore Mr. Brittain’s express intention to benefit Ms. Belvedere. Ms. Belvedere would probably be in a very different situation had Mr. Brittain not died in a tragic accident.

[8] In these unfortunate circumstances, particularly the financial position of Ms. Belvedere and recognizing the unfulfilled but legally unenforceable promise of Mr. Brittain, we conclude that this is one of those rare cases in which the court should exercise its discretion to make no costs award in respect of the trial of this matter.

“M. Rosenberg J.A.”

“Robert P. Armstrong J.A.”

“David Watt J.A.”