Court File and Parties

CITATION: Saller v. Ferguson, 2017 ONSC 4608

DIVISIONAL COURT FILE NO.: DC991/16

DATE: 20170731

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Gunther Fred Saller, Estate Trustee of the Estate of James John Dravis, Appellant

AND: Velma Ferguson, Respondent

BEFORE: Kiteley, Wilton-Siegel, Broad JJ.

COUNSEL: B. Yellin, for the Appellant L. Aitchison, for the Respondent

HEARD: in writing

Endorsement

BY THE COURT:

[1] On June 29, 2017 the panel heard submissions with respect to the appeal by Gunther Fred Saller, Estate Trustee of the Estate of James John Dravis from the order of Salmers, J., dated August 22, 2016. In an oral decision subsequently reflected in a written decision (2017 ONSC 4077) the panel allowed the appeal. Immediately after counsel received the oral decision the panel heard submissions as to costs and made a further written endorsement ordering the respondent (the Objector) to pay costs in the amount of $9500.

[2] In the week following, counsel for the respondent contacted the trial co-ordinator with a request that both counsel be permitted to file brief written submissions “as to whether the costs are payable to the appellant directly or to the estate” on the basis that the endorsement was unclear. In other words, the submissions would focus on the recipient of the payment of costs. Counsel ought to have raised the issue on June 29. However, because counsel for the appellant did not object to making written submissions, the members of the panel agreed to the request and established a timetable for doing so. We have now received their written submissions.

[3] In her written submissions on behalf of the respondent, counsel took the position that the appellant was in fact the Estate of James John Dravis and that the costs should be paid from the Estate. Furthermore, counsel asserted that costs are payable either by the Estate or to the Estate or, in the alternative and in the interest of fairness and pursuant to the authority granted under section 131 of the Courts of Justice Act, if the respondent is required to pay costs to the appellant, that those costs be stayed until the end of the hearing. Although the issue on which counsel sought to make submissions was the narrow question of the recipient of the costs, counsel for the respondent used the willingness of the court to hear submissions on that narrow point to make submissions on the broader issue of whether the respondent ought to be required to pay costs and the further issue of the recipient of the costs.

[4] The endorsement dated June 29, 2017 directed the respondent to pay costs but did not indicate the recipient. In this appeal, there were only two parties: Gunther Fred Saller, Estate Trustee and Velma Ferguson, the objecting party in the passing of accounts and the respondent in the appeal. The respondent’s objection involved the assertion of claims against Mr. Saller personally and sought an award in favour of the respondent personally. It goes without saying that in proceedings of this nature in which there are only one appellant and one respondent, when the respondent is required to pay the costs, they will be paid to the successful appellant. The endorsement did not lack clarity.

[5] In any event, the members of the panel do not accept the submissions on behalf of the respondent. There is no reason to depart from the modern approach to costs in estate litigation as articulated in McDougald Estate v. Gooderham (2005) 2005 21091 (ON CA), 255 D.L.R. (4th) 435 (OCA) and recently applied in Jansen v. Niels Estate 2017 ONCA 312. There are no public policy considerations that would suggest that the Estate should either pay the costs or should be the recipient of the costs. The findings of the Application Judge were made against the appellant in his personal capacity and, on the appeal, we found that he had been denied procedural fairness. The respondent chose to oppose the appeal even though it was limited to issues of procedural fairness which she was able to assess having participated in the hearing before the Application Judge. The appellant is entitled to costs of the appeal in the amount agreed upon from the respondent.

[6] In his submissions, counsel for the appellant asked that the court make an order that the costs be paid within 30 days of June 30, 2017. On June 29, no submissions were made as to the time within which the costs must be paid. In agreeing to receive submissions on the narrow issue referred to above, it did not create an opportunity for the appellant to add an additional issue.

ORDER TO GO AS FOLLOWS:

[7] The respondent shall pay the costs of $9500 set out in the endorsement dated June 29, 2017 to the appellant.

Kiteley J.

Wilton-Siegel J.

Broad J.

Date: July 31, 2017