Smith, Executor and Trustee of the Estate of Smith v. Rotstein et al. [Indexed as: Smith Estate v. Rotstein]

106 O.R. (3d) 161

2011 ONCA 491

Court of Appeal for Ontario,

R.P. Armstrong, Epstein and Karakatsanis JJ.A.

July 5, 2011

Wills and estates -- Estate administration -- Costs -- Appellant filing notice of objection challenging validity of will and four codicils -- Motion judge granting respondent's motion for summary judgment striking out notice of objection with respect to will and first two codicils and granting costs to respondent in amount of $737,580.29 -- Appellant's appeal from costs order granted -- Motion judge erring in placing little weight on appellant's detailed critique of respondent's bill of costs because appellant had failed to file her own bill of costs -- Quantum of costs referred back to motion judge for reassessment -- Motion judge not erring in granting costs on full indemnity scale -- Proceeding not informational in nature.

Wills and estates -- Estate administration -- Probate -- General Rule -- Appellant filing notice of objection challenging validity of will and four codicils -- Motion judge granting respondent's motion for summary judgment striking out notice of objection with respect to will and first two codicils -- Motion judge not erring in granting partial probate in circumstances of this case.

The testator executed a will and four codicils. After her death, her son, the respondent, filed an application for a certificate of appointment of estate trustee. Her daughter, the appellant, filed a notice of objection challenging the validity of the will and codicils. The respondent brought a motion for summary judgment seeking an order striking out the appellant's notice of objection. The respondent subsequently withdrew his summary judgment motion in respect of the third and fourth codicils in order to narrow the scope of the summary judgment motion. The motion judge rejected the grounds of objection to the will and the first and second codicils, and found that this was an appropriate case in which to grant partial probate. The third and fourth codicils dealt with only two matters: the amount of the gift to be paid to a trust for the benefit of the appellant's daughter; and the gift of a necklace to the respondent's ex-wife. The respondent's ex-wife had renounced that gift; the motion judge saw no reason to delay the administration of the estate because of the one remaining issue. Partial probate was granted to the respondent upon his undertaking to hold back $250,000 from the distribution until such time as a certificate of appointment was issued in respect of the third and fourth codicils. The respondent was granted costs in the amount of $737,580.29. The appellant appealed the summary judgment, arguing that it was contrary to the General Rule of Probate law, which requires that all testamentary documents be probated at the same time. She also appealed the costs order.

Held, the appeal from the summary judgment should be dismissed; the appeal from the costs order should be allowed.

Nothing in the motion judge's reasons for judgment offended the rationale for the General Rule. There was nothing, in the circumstances of this case, that would undermine the confidence of anyone dealing with the executor concerning [page162] the property of the estate. There was nothing in the third or fourth codicil that weakened the grant of probate in respect of the will or its first two codicils. While testamentary instruments should generally be proved together, departure from the rule is permissible in special circumstances. Special circumstances existed in this case. There was not a scintilla of evidence that the will and the first two codicils were invalid due to lack of testamentary capacity, lack of knowledge, undue influence or suspicious circumstances. There was no credible reason to suggest that the will and the first two codicils should not be admitted to probate. The appellant had no interest in either the third or fourth codicils. There was no basis to set aside the partial probate on the ground that codicils three and four had not proceeded to probate at the same time as the will and the first two codicils.

There is no requirement for the losing party, who is not seeking costs, to file a bill of costs. The motion judge erred in giving little weight to the appellant's detailed critique of the respondent's bill of costs because the appellant had not filed her own bill of costs. The quantum of the fees claimed was referred to the motion judge for reassessment. The motion judge did not err in rejecting the appellant's argument that the procedure by way of notice of objection is inquisitorial in nature and therefore different from an adversarial proceeding. There was nothing about this particular litigation that could be described as an informational proceeding. There was no basis to interfere with the motion judge's conclusion that the award of costs should be on a full indemnity scale.

APPEAL from the summary judgment of D.M. Brown J., 2010 ONSC 2117, [2010] O.J. No. 1527, 56 E.T.R. (3d) 216 (S.C.J.) granting partial probate and from a costs order.

Cases referred to Brad-Jay Investments Ltd. v. Szijjarto, 2006 CanLII 42636 (ON CA), [2006] O.J. No. 5078, 218 O.A.C. 315, 154 A.C.W.S. (3d) 226 (C.A.) [Leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 92]; Hamilton v. Open Window Bakery Ltd., [2004] 1 S.C.R. 303, [2003] S.C.J. No. 72, 2004 SCC 9, 235 D.L.R. (4th) 193, 316 N.R. 265, J.E. 2004-470, 184 O.A.C. 209, 40 B.L.R. (3d) 1, [2004] CLLC Â210-025, 128 A.C.W.S. (3d) 1111; In the Estate of Day, [1940] 2 All E.R. 544 (P. D. & A.); In the Goods of Robarts (1873), L.R. 3 P. & D. 110 (Cts. of Probate and Divorce); In the Goods of Savage (1870), L.R. 2 P. & D. 78 (Cts. of Probate and Divorce); Slater v. Slater, [2004] O.J. No. 4054, [2004] O.T.C. 878, 12 E.T.R. (3d) 246, 134 A.C.W.S. (3d) 188 (S.C.J.); Smith Estate v. Rotstan, [2010] O.J. No. 1527, 2010 ONSC 2117, 56 E.T.R. (3d) 216, 2010 CarswellOnt 2282, supp. reasons [2010] O.J. No. 3266, 59 E.T.R. (3d) 279, 2010 ONSC 4487, 2010 CarswellOnt 5629 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194 Authorities referred to Winegarten, Jonathan, Roland D'Costa and Terry Synak, Tristram & Coote's Probate Practice, 30th ed. (London: LexisNexis U.K., 2006)

Earl A. Cherniak, Q.C., and Alisse Houweling, for appellant. Richard H. Shekter and Debra L. Stephens, for respondent. [page163]

The judgment of the court was delivered by

R.P. ARMSTRONG J.A.: -- Introduction

[1] This appeal concerns the application of the so-called General Rule of Probate law, which is said to require that all testamentary documents be proven or probated at the same time.

[2] In this case, Justice Brown of the Superior Court of Justice, on a motion for summary judgment, ordered that partial probate issue to Lawrence Smith (the respondent) in respect of the 1987 will of his mother and in respect of the first and second codicils of the will, upon the payment of the usual fees and upon the undertaking by the respondent to hold back $250,000 from the distribution until such time as a certificate of appointment may be issued in respect of the third or fourth codicils, or both.

[3] The appellant, Nancy-Gay Rotstein, the daughter of the testator, appeals the judgment of the motion judge, principally on the ground that the judgment is in breach of the General Rule, which requires that all five testamentary documents should have been admitted to probate together.

[4] The appellant also seeks leave to appeal the order for costs in the amount of $737,580.29.

[5] For the reasons that follow, I would dismiss the appeal from the summary judgment and I would allow the appeal in respect of costs. The Facts

[6] The motion judge made detailed findings of fact in his lengthy reasons for judgment. The appellant accepts those findings. It is therefore unnecessary to dwell on his findings other than to set out sufficient background to provide the relevant context for the motion judge's decision.

[7] The appellant and respondent are sister and brother. The testatrix of the 1987 will and four codicils is their late mother, Ruth Dorothea Smith.

[8] The dispute in this litigation has its genesis in a disagreement between the appellant and her parents in the spring of 1976. For much of the following 25 years, the appellant was totally estranged from her parents.

[9] The appellant and the respondent were treated equally under their mother's will made in September 1975. However, following the family dispute in the spring of 1976, the appellant was excluded from her mother's will by a codicil. A notice accompanied the 1976 codicil, which explained the exclusion: [page164]

Nancy-Gay and Larry have always shared equally the love of their parents and all their worldly goods. However, because of Nancy-Gay's recent actions which have deeply grieved us, I feel I must make revisions in my will which I signed today.

[10] In a November 1976 will, the appellant was reinstated as a residuary beneficiary although unequally with the respondent. In a 1978 will, her mother excluded the appellant from any share of the residue, leaving her only a diamond bracelet watch and a diamond brooch. In 1984, the appellant and her children were completely excluded from the mother's will. A September 1986 will also excluded the appellant and her children. A notice accompanying the 1986 will said:

I have expressly not made any provision for my daughter, Nancy-Gay Rotstein, and her issue in my will . . . although I send them my love and best wishes.

[11] On November 4, 1987, the mother executed her final will, which again left nothing to the appellant or her children and was accompanied by a notice identical to the notice in respect of the 1986 will.

[12] After the execution of the 1987 will, there followed four codicils. The appellant was excluded from the four codicils except for two pieces of jewellery. The respondent remained the sole residuary beneficiary throughout. The second codicil provided for the bequest of two pieces of jewellery to the appellant and also provided for a $50,000 legacy to a trust set up to benefit the appellant's daughter, Marcia. The third codicil increased the legacy to the appellant's daughter to $200,000. The fourth codicil reduced the aforementioned cash legacy to $150,000 and provided a gift of a necklace to the respondent's then wife, Ms. Tracey Tremayne-Lloyd. Subsequently, Ms. Tremayne-Lloyd renounced her interest in the fourth codicil.

[13] The mother died on November 7, 2007. On December 3, 2007, the appellant filed a notice objecting to the issuance of a certificate of appointment of estate trustee on the following grounds: (i) The mother lacked testamentary capacity. (ii) The mother did not have knowledge of or approve the contents of her will. (iii) The mother was subjected to undue influence. (iv) Suspicious circumstances existed in respect of the execution of the will. [page165]

[14] The respondent filed an application for a certificate of appointment of estate trustee on December 17, 2007. On December 20, 2007, the appellant filed an amended notice of objection on the same grounds as before. The Summary Judgment Motion

[15] In October 2008, the respondent commenced a motion for summary judgment in respect of the 1987 will and the four codicils in which he sought an order striking out the respondent's amended notice of objection.

[16] The summary judgment motion contained affidavit evidence concerning the family history. No affidavit of the appellant was filed. Instead, counsel for the appellant filed a lengthy affidavit of the appellant's husband. In April 2009, counsel for the respondent withdrew his summary judgment motion in respect of the third and fourth codicils. Counsel for the respondent explained that he did so in order to narrow the scope of the summary judgment motion and to save time and money.

[17] The evidentiary record included a five-volume motion record, a nine-volume compendium, an 18-volume medical brief, an eight-volume transcript brief, a 14-volume document brief and a number of other briefs.

[18] There were several days of cross-examination on the affidavits filed on the motion, followed by submissions in writing and three days of oral argument.

[19] The motion judge rejected each of the grounds of objection to the 1987 will and the first and second codicils. He was unable to find any evidence to support those objections. At paras. 308 and 309 [2010 ONSC 2117, [2010] O.J. No. 1527 (S.C.J.)], the motion judge concluded:

I think this is an appropriate case in which to grant partial probate. The Third and Fourth Codicils deal only with two matters: (i) the amount of the gift to be paid to the I. & R. Smith Trust for the benefit of Marcia Rotstein, and (ii) the gift of a necklace to Tracey Tremayne-Lloyd. Since Ms. Tremayne-Lloyd filed an affidavit confirming that she had renounced that gift, only the amount of the gift for the benefit of Marcia Rotstein remains in issue. I see no reason to delay the administration of Ruth Smith's estate because of that one issue. I therefore direct the Estates Registrar of the Toronto Region to issue to Lawrence Smith a certificate of appointment as estate trustee of Ruth Dorothea Smith's 1987 Will, First Codicil dated May 24, 1989 and Second Codicil dated November 7, 1991, upon the payment of the usual fees, and upon the filing of an undertaking signed by Lawrence Smith that he will hold back from the distribution of estate assets the sum of $250,000.00 until such time as a certificate of appointment may be issued in respect of the Third or Fourth Codicil, or both.

As to the Third Codicil of Ruth Smith dated November 15, 1994 and the Fourth Codicil dated June 3, 1998, in respect of which summary judgment [page166] ultimately was not sought, I intend to make directions about further steps in the proceeding pursuant to Old Rule 20.05(1).

[20] The motion judge set out the further steps to be taken in respect of the third and fourth codicils. It is unnecessary to set those out here.

[21] The motion judge concluded his reasons for judgment, at para. 312, as follows:

Given my grant of partial summary judgment in respect of the 1987 Will and the first two codicils, Nancy-Gay Rotstein has no interest in any further adjudication, if required, of the validity of the Third and Fourth Codicils of Ruth Smith, and no notice need be served on her of any further proceedings in respect of the Third and Fourth Codicils. The Grounds of Appeal

[22] The appellant raises four grounds of appeal: (i) The motion judge erred in granting partial summary judgment in respect of some, but not all, testamentary instruments in contravention of the General Rule of Probate. (ii) The motion judge erred in failing to recognize that departure from the General Rule is only justified where special circumstances exist and he failed to recognize that no special circumstances existed in this case. (iii) The motion judge erred in granting partial summary judgment when such judgment conflicts with the General Rule. (iv) The motion judge's errors are evident in the remedy he ordered in respect of the third and fourth codicils. Analysis (i) Did the motion judge err in granting partial summary judgment in respect of some, but not all, testamentary instruments?

[23] Counsel for the appellant relies on the General Rule of Probate, which can be traced back to 1858 through all 30 editions of the leading probate text -- Tristram & Coote's Probate Practice. (The most recent edition is J.I. Winegarten, R. D'Costa and T. Synak, 30th ed. (London: LexisNexis Butterworths, 2006) at paras. 3.160-3.173.) The rule has its genesis in ecclesiastical law where a grant of probate from an ecclesiastical court in contentious proceedings was irrevocable, except in limited situations such as the discovery of a later will after the grant of probate or circumstances giving rise to fraud. [page167]

[24] The General Rule also served to protect an executor whose duties were circumscribed by the testamentary documents admitted to probate. Probating all testamentary documents at the same time promoted certainty and enabled the executor to proceed with confidence in carrying out his or her fiduciary duties.

[25] Counsel for the appellant describes the underlying purpose of the rule as follows:

The rationale for the rule remains persuasive today. A grant of probate sets up a property right in the assets of the estate in favour of the executor. All the world must have confidence in transacting with the executor that he or she has the right to deal with the property of the estate. This achieves transactional certainty. In contrast, admitting some, but not all, documents to probate may undermine this certainty. Second, the grant of probate allows the executor to be appointed and thus creates the obligation that he or she takes up. Granting probate in respect of some, but not all, documents before the court can result in a weak quality of the grant, especially as one document may revoke, limit or otherwise nullify another. It may make the executor's duties impossible to ascertain. The rationale for the General Rule thus continues to operate.

[26] Applying the rationale for the rule, as articulated by counsel for the appellant, I can find nothing in the reasons for judgment of the motion judge that offends the rationale. There is nothing, in the circumstances of this case, which would undermine the confidence of anyone dealing with the executor concerning the property of the estate. There is nothing in either the third codicil or the fourth codicil that weakens the grant of probate in respect of the will or its first two codicils.

[27] Finally, counsel for the appellant submits that the motion judge failed to recognize that the General Rule relates to the validity of the will and not its construction.

[28] I can find nothing in the reasons for judgment that suggest the motion judge did not recognize the General Rule relates to the validity of the will and not its construction. Indeed, at paras. 49-51 of his reasons, the motion judge appears to make the appropriate distinction:

A will and its codicils should be construed together as one testamentary disposition. As put in Williams on Wills, Ninth Edition:

The will and all the codicils thereto are construed together as one testamentary disposition, although not as one document and the same principles in general apply to the construction of a codicil as of a will. For the purpose of explaining the will or any codicil, the court may and is bound to look at the will and at all the other codicils (emphasis added).

But the issue on this motion does not involve the construction of testamentary documents; it concerns the validity of testamentary documents. The common law recognizes that proceedings involving wills may involve two [page168] distinct questions: (i) inquiring into which document constitutes the will of which the testatrix knew and approved; and, (ii) interpreting what the language of the will means: Balaz v. Balaz [[2009] O.J. No. 1573 (S.C.) at para. 10]. This proceeding engages the first question only. Once it is determined which documents constitute the will of Ruth Smith, subsequent questions of interpretation may or may not arise.

In my view Ms. Rotstein's argument conflates a task not yet before this court -- the interpretation of valid testamentary documents -- with one that is -- ascertaining which testamentary documents are valid. Ms. Rotstein has put in issue the validity of her mother's last will and codicils. Her brother's Rule 20 motion requires the court to determine whether a trial is necessary or unnecessary to determine the validity of those testamentary instruments. Put another way, the questions on this motion are which of the testamentary instruments require a trial to determine their validity and which, if any, do not? If the answer is that some do not require a trial, then the objections to their validity can be dismissed and what remains for trial will be the validity of the other testamentary instruments. Once the validity of all testamentary documents has been ascertained, either on this motion or at trial, it may or may not be necessary to engage in questions of interpretation of those testamentary instruments which have been found valid, but that is an exercise for another day and another place. (Footnotes omitted; emphasis in original) (ii) Did the motion judge err in failing to recognize that no special circumstances existed in this case to permit him to depart from the General Rule?

[29] Counsel for the appellant submits that the departure from the General Rule is justified only in special circumstances and such circumstances are not present here.

[30] Counsel for the appellant argues that the exceptions to the General Rule are limited to cases such as situations where delay will cause harm to the assets of the estate.

[31] Counsel cited In the Goods of Robarts (1873), L.R. 3 P. & D. 110 (Cts. of Probate and Divorce), where an executor was permitted to probate a will and the first two codicils, reserving to him the right to probate four other codicils that were in India and had not yet been received in England. In that case, there was urgency and delay would have caused harm to the estate.

[32] Another exception is where the testator has destroyed some of the testamentary documents and there is evidence that the testator intended to revoke only the documents destroyed. See In the Goods of Savage (1870), L.R. 2 P. & D. 78 (Cts. of Probate and Divorce), where a will was destroyed and a codicil remained. The court said that the testator's probable intention was not to revoke the codicil.

[33] The appellant argues that there is no case where partial probate has been made in contentious proceedings over the [page169] objection of a party to the litigation. Counsel cites In the Estate of Day, [1940] 2 All E.R. 544 (P. D. & A.). A motion for probate was brought in respect of a will and the first codicil. There was a second codicil, which was disputed. The court permitted the executors to probate the will and first codicil while the respondent's rights under the second codicil were protected pending a decision on its validity. The respondent did not object to that procedure.

[34] In my view, the appellant's argument takes too narrow a view of the situations in which partial probate may be granted. It is contrary to the development of the common law to suggest that the categories of exceptions to the General Rule, which is so broadly cast, should be so narrowly proscribed.

[35] While testamentary instruments should generally be proved together, departure from the rule is permissible in special circumstances. In my view, special circumstances exist in this case.

[36] In this case, there is not a scintilla of evidence that the validity of the 1987 will and the first two codicils are invalid due to lack of testamentary capacity, lack of knowledge, undue influence or suspicious circumstances. There is no credible reason to suggest that the will and the first two codicils should not be admitted to probate. The appellant has no interest in either the third or fourth codicils. There is no basis to set aside the partial probate on the ground that codicils three and four had not proceeded to probate at the same time as the will and the first two codicils. Whether they fit into a pre-existing category of exception to the General Rule of Probate is of no consequence. (iii) Did the motion judge err in granting partial summary judgment when such judgment conflicts with the General Rule?

[37] The appellant concedes that it is undisputed that partial summary judgment is available in contentious estate matters. However, counsel for the appellant submits that the law in respect of summary judgment in contested wills should be permitted to develop on an incremental basis "in a manner that preserves long-standing and well-accepted policies and procedures". As an example of the motion judge's failure to proceed on an incremental basis, he cites the treatment of Slater v. Slater, [2004] O.J. No. 4054, 12 E.T.R. (3d) 246 (S.C.J.), at para. 46 of his reasons:

Where an objection to a will involves multiple "claims" regarding its invalidity, I see no reason why partial summary judgment could not be granted dismissing some of the claims provided the result was consistent with the [page170] purpose of Rule 20 in removing a discrete issue from the list of those to be tried, thereby shortening the trial. Whether or not to grant partial summary judgment would require an exercise of judicial discretion in the particular circumstances of a case. For example, in Slater v. Slater, supra, the court granted summary judgment in respect of some, but not all, issues set out in an order for directions regarding the validity of a will -- summary judgment was granted dismissing claims that the will was executed under undue influence or without testamentary capacity, but not granted in respect of a claim of lack of due execution of the will.

[38] Counsel for the appellant submits that the motion judge erred in failing to consider how the ruling in Slater should apply where the issue was the availability of partial summary judgment in respect of "some testamentary instruments" as opposed to "some claims", e.g., lack of testamentary capacity and undue influence.

[39] In my view, the motion judge appreciated the distinction made by counsel for the appellant. However, contrary to the appellant's position, he concluded that it was appropriate to order partial summary judgment in the circumstances of this case. I am unable to say that he erred in so doing. (iv) The motion judge's remedy in respect of the third and fourth codicils

[40] Finally, the appellant's counsel submits that the motion judge's errors in failing to apply the General Rule of Probate are evident in the remedy he ordered in respect of the third and fourth codicils.

[41] Simply put, counsel argues that by granting probate of the first three testamentary instruments, and short-circuiting the procedure for the third and fourth codicils, the motion judge has allowed the consent of the interested parties (the respondent and the appellant's daughter) to determine the issue of probate.

[42] In my view, the latter argument is an oversimplification of what happened here. It ignores the massive record which established beyond doubt that there was no evidence to support the objections made by the appellant. The fact that the respondent withdrew his motion for summary judgment in respect of the third and fourth codicils and that the appellant's daughter was in agreement as to how they should proceed does not, in my view, alter the outcome of this case, either factually or legally. I see no error in the motion judge's remedy in respect of the third and fourth codicils. Disposition

[43] For the above reasons, I would dismiss the appeal. [page171] The Costs Appeal

[44] The appellant also appeals the motion judge's costs award. The appellant has not formally requested leave to appeal. However, no objection was taken by the respondent. The respondent has fully responded to the costs appeal with a 15- page factum and oral argument. In the circumstances, I would propose to deal with this matter as if there is an application for leave to appeal.

[45] This court has held that leave to appeal a costs order requires strong grounds upon which an appellate court can find that the judge erred in the exercise of his or her discretion. See In Brad-Jay Investments Ltd. v. Szijjarto, 2006 CanLII 42636 (ON CA), [2006] O.J. No. 5078, 218 O.A.C. 315 (C.A.), at para. 21, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 92. As to the grounds upon which an appellate court may interfere with a costs award, Arbour J. said in Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, [2003] S.C.J. No. 72, at para. 27: "A court should set aside a costs award on appeal only if the trial judge has made an error in principle or if the costs award is plainly wrong."

[46] The respondent submitted a bill of costs requesting $707,173 for fees on a full indemnity basis and disbursements of $93,531.56. The motion judge made an award for the full amount of the fees requested. He reduced the disbursements to $30,407.29. The appellant conceded at the outset that the award of costs should be payable by her personally rather than payable by the estate.

[47] The appellant raises three issues as follows: (i) The motion judge erred by purporting to require the appellant to file a bill of costs, and failing to give proper weight to the detailed submissions made by the appellant on the issue of costs. (ii) The motion judge erred in failing to assess the overall reasonableness of the costs claimed by the respondent. (iii) The motion judge erred by failing to consider the nature of the notice of objection filed by the appellant when determining which scale of costs was reasonable in the circumstances of this case. He failed to note that a notice of objection is a request to a court to exercise its inquisitorial jurisdiction to determine the validity of a will, and supports the public policy objective of ensuring that only valid wills are admitted to probate. [page172] Analysis

[48] Issues (i) and (ii) overlap. I will deal with them together.

[49] In his supplementary reasons for costs [2010 ONSC 4487, [2010] O.J. No. 3266, 59 E.T.R. (3d) 279 (S.C.J.)], the motion judge said, at para. 58:

I asked Ms. Rotstein to file a Bill of Costs if she made cost submissions; she did not do so. Without being able to review the costs Ms. Rotstein incurred in this proceeding, I place little weight on the detailed critique she made of Mr. Smith's Bill of Costs. As I have noted, Ms. Rotstein's legal team mirrored the composition and the size of Mr. Smith's team. Her counsel submitted materials of the same sophistication and complexity as those of the moving party. In fact, Ms. Rotstein filed a significantly greater volume of materials on the motion than did Mr. Smith. In the absence of the requested Bill of Costs from the objector, those circumstances permit me to infer that the fees incurred by Ms. Rotstein on a full indemnity basis approximated those incurred and submitted by Mr. Smith. I therefore am not prepared to accept the objector's submission that the moving party has overreached in respect of the time claimed.

[50] In my view, there is no requirement for the losing party, who is not seeking costs, to file a bill of costs although it is preferable that he or she does so. However, if the losing party chooses not to file a bill of costs, this is a factor that the judge, who is assessing costs, may take into account when considering the reasonable expectations of the losing party.

[51] The motion judge, in para. 58 of his supplementary reasons, draws the permissible inference from the failure of the appellant to file a bill of costs, i.e., "the fees incurred by Ms. Rotstein on a full indemnity basis approximated those incurred and submitted by Mr. Smith". That said, the motion judge must consider whether the amount claimed by the respondent is fair and reasonable. If the appellant raises significant concerns about the bill presented by the respondent, they must be addressed whether or not the losing party has filed his or her own bill of costs.

[52] I appreciate that the motion judge said, in para. 58 of his reasons, that he placed "little weight on the detailed critique" of the appellant. What weight a motion judge decides to give to particular pieces of evidence is, of course, a matter for him to decide. However, reading his reasons as a whole, there is more involved than a weighing of the evidence. What the motion judge has done is reject an argument based on an analysis of the evidence of billing rates and hours because the appellant failed to file her own bill of costs, which she is not required to do.

[53] The motion judge commented on the appellant's costs submissions, at paras. 55 and 56: [page173]

Ms. Rotstein's Costs Submissions contained an extensive critique of Mr. Smith's Bill of Costs. The critique was the most sophisticated one that I have yet seen as a judge, consisting of the meticulous analysis of billing rates, time charged for particular tasks, and comparisons between the billing practices of Mr. Shekter, who practices in a litigation boutique, and Mr. Rabinowitz, who practices at a King and Bay St. Firm. The analysis unfolded through detailed, colour-coded Excel spreadsheets.

Although I found that fees analysis interesting, the objector's critique of the moving party's Bill of Costs lacked one critical component -- the information that I had requested the objector to file about her own costs. In paragraph 313 of my April Reasons I made it clear that if a party filed cost submissions, they were to be accompanied by a Bill of Costs. I gave that direction for a very specific reason. Given the complexity of the issues in the proceeding, the obvious importance of the outcome to the parties, as well as to other beneficiaries of Ruth Smith's Will and codicils, the huge volume of material filed, the length and sophistication of the written factums filed, and the composition of each party's litigation team -- each had lawyers from a King and Bay St. firm and a litigation boutique, with each retaining a prominent estates litigation lawyer -- the resulting costs award, whatever the scale, would be in the hundreds of thousands of dollars. (Emphasis added)

[54] I do not agree that the absence of a bill of costs filed by the respondent was critical to a consideration of the submissions made by the appellant. It was but one factor for consideration in respect of the reasonable expectations of the losing party. In my view, a bill of costs in excess of $700,000 for a case of this nature, which concludes in a three-day motion, must be able to stand on its own without reference to a bill of costs from the appellant. In this day of inflationary legal costs, such a bill invites careful analysis. While the judge assessing a bill is not required to do a line-by-line analysis, he or she must be satisfied that the bill is fair and reasonable standing on its own.

[55] I have reviewed the costs submissions of the respondent that were made to the motion judge. The motion judge described those submissions as sophisticated and consisting of a meticulous analysis of billing rates, time charged for particular tasks and comparisons between the billing practices of the two senior counsel on the file. I agree with the motion judge's characterization. Indeed, if the appellant's analysis is accepted in a reassessment, it could lead to a significantly different result. That said, I do not propose that this court carry out that reassessment. The motion judge is best suited to do it and it is for him to come to his own conclusion. What is important is that the analysis be fully considered as part of the assessment.

[56] I have not overlooked that the appellant in this case was the author of her own misfortune, given her conduct as found by the motion judge, and while she may well have paid fees equivalent to or in excess of those claimed by the respondent, she is [page174] still entitled to challenge the respondent's bill as unreasonable. If there is a critique of the respondent's bill of costs, it is worthy of consideration and ought not to be discarded simply because the appellant had failed to file her own bill of costs. In my view, the motion judge's approach constitutes reversible error.

[57] While it is not necessary to deal with the third issue raised by the appellant, in view of my conclusion on the first two issues, I propose to deal with the third issue briefly.

[58] The appellant submits that the motion judge misapprehended the nature of the proceeding when determining which scale of costs was reasonable. According to the appellant, a notice of objection acts as a request to a court to exercise its inquisitorial jurisdiction to ensure that the will admitted to probate is valid. It is, according to the appellant, a process under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 that allows an interested person to obtain information about the validity of a will.

[59] Counsel for the appellant further submits that a notice of objection serves the important public policy goal of ensuring that wills are not admitted to probate unless they are valid. An interested party ought to be able to employ this procedure without undertaking the risk of a full indemnity costs award, which will have a chilling effect for those who wish to test the validity of a will.

[60] The appellant argues that the procedure by way of notice of objection is inquisitorial in nature and therefore different from an adversarial proceeding. The appellant says that the motion judge failed to take into account this important distinction when awarding costs on a full indemnity scale.

[61] Finally, counsel for the appellant submits that the costs award in this case ignores the informational imbalance between an objector and an executor, and fails to account for the informational process that a notice of objection commences.

[62] The motion judge rejected the above argument, at paras. 35 and 36 of his supplementary reasons for decision [2010 ONSC 4487, [2010] O.J. No. 3266 (S.C.J.)]:

First, in terms of the process for applying for probate under the Rules of Civil Procedure, it is true that filing a Request for Notice of Commencement of Proceedings pursuant to Rule 74.03(1) simply constitutes a request for information about the start of a probate application. However, once an application for a certificate of appointment is filed and the interested person files a Rule 75.03(1) Notice of Objection, as Ms. Rotstein did on December 20, 2007, one is no longer dealing with an information request, as suggested by the objector. The whole process described in Rule 75.03 is designed to move the application forward by having either the applicant or objector move for an order giving directions for the conduct of what has become a contentious estate proceeding. [page175]

Second, Ms. Rotstein's submission about the benign intent of her notice of objection bears no relation to the submissions actually made on her behalf at the hearing. Let me repeat part of what I wrote in paragraph 305 of my April Reasons:

Second, Ms. Rotstein's position that if the 1987-based testamentary instruments were held to be invalid, then she would attempt to strike down every prior will until she came to one where her mother treated her equally with her brother, spoke volumes about the lack of "genuineness" of the claims advanced by Nancy-Gay Rotstein in this proceeding.

[63] I agree with the motion judge's analysis in the above paragraphs. There is nothing about the litigation between the appellant and the respondent that could be described as an informational proceeding.

[64] I see no basis upon which to interfere the motion judge's conclusion that the award of costs should be on a full indemnity scale. Disposition of the Costs Appeal

[65] I am satisfied that the appellant has raised strong grounds of appeal in respect of the first and second issues. I would therefore grant leave to appeal the costs award.

[66] It follows that I would set aside the costs award and refer the issue of quantum of the fees claimed to the motion judge for reassessment. The Costs of the Appeal

[67] After the argument of the appeal, counsel for the respondent, on behalf of both parties, advised that they wished the court's ruling in respect of costs of the appeal to be withheld until the parties have had an opportunity to address the court on the issue of outstanding offers to settle. The respondent shall file written submissions, double-spaced and not to exceed five pages, within ten days of the release of these reasons for judgment. Counsel for the appellant may file written submissions, double-spaced and not to exceed ten pages, within ten days of the receipt of the respondent's submissions. The respondent may file reply submissions, double-spaced [and] not to exceed three pages, within five days of the receipt of the submissions from the appellant.

Appeal allowed in part.