Chernukhina Estate v. Gurevich, 2026 ONSC 2745

Court File and Parties

Citation: Chernukhina Estate v. Gurevich, 2026 ONSC 2745 Court File No.: DC-24-000743-000 Date: 2026-05-13 Superior Court of Justice – Ontario Divisional Court

Re: H. Keith Juriansz, Estate Trustee with a Will of the Estate of Evgeniya Chernukhina, Plaintiff (Appellant) And: Sofia Gurevich, Sabria Gurevich, Boris Gurevich and Anatoly Gurevich, also known as Andrew Gurevich, Defendants (Respondents)

Before: M.D. Faieta J.

Counsel: Vitali Luchko, for the Appellant Arkadi Bouchelev, for the Respondents

Heard: In writing

Costs Endorsement

1The issues on this appeal were whether the Court erred in dismissing the plaintiff’s action for delay and in discharging two CPLs. This appeal was dismissed: Chernukhina Estate v. Gurevich, 2026 ONSC 2163.

2The respondents seek their costs, inclusive of HST and disbursements, on a substantial indemnity basis in the amount of $22,057.60.

3The appellant submits that no costs should be awarded to the respondents due to their conduct before and during the litigation. Alternatively, the appellant submits that costs should be fixed on a partial indemnity at $10,000. The appellant submits that this is not an appropriate case to assess costs personally against the Estate Trustee.

Legal Principles

4The principles related to the award of costs in an estates matter were described by the Ontario Court of Appeal in Westover Estate v. Jolicouer, 2024 ONCA 81, as follows:

12 It is now well-established that estate litigation, like all civil litigation, is subject to the general civil litigation costs regime. The historical approach in estate proceedings that all parties' costs are paid out of the estate has been displaced by the modern approach to fixing costs in estate litigation that seeks to ensure estates are not depleted through the costs of unnecessary litigation and the assets of an estate are not treated "as a kind of ATM bank machine from which withdrawals automatically flow to fund their litigation". The same rules that govern costs in civil litigation at the appeal level apply in estate litigation.

13 Exceptions to the general approach may arise in limited cases where public policy considerations apply and mandate a different result. Public policy considerations include the need to give effect to valid wills that reflect the intention of competent testators as well as the proper administration of estates.

14 Estate trustees are generally "entitled to be indemnified for all reasonably incurred costs in the administration of an estate": .... Saddling estate trustees personally with legal costs where litigation was caused by the testator might well discourage them from initiating reasonably necessary legal proceedings to ensure the due administration of an estate: … However, this is not an absolute rule. A court may order otherwise if an estate trustee has acted unreasonably or in substance for their own benefit, rather than for the benefit of the estate (footnotes omitted).

5The following general principles, described by L.B. Roberts, J.A., in Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587, govern the award of costs in a civil proceeding:

59 The relevant principles to be applied in a court's exercise of its discretion to award costs under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 are well established. They include the myriad factors enumerated in rule 57.01(1) of the Rules of Civil Procedure, such as: the result achieved, the amounts claimed and recovered, the complexity and importance of the issues in the proceeding, as well as "any other matter relevant to the question of costs". This is not a mechanical exercise or a rubber stamp.

60 A proper costs assessment requires a court to undertake a critical examination of the relevant factors as applied to the costs claimed and then "step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable".

61 The overarching objective is to fix an amount of costs that is objectively reasonable, fair, and proportionate for the unsuccessful party to pay in the circumstances of the case, rather than to fix an amount based on the actual costs incurred by the successful litigant.

62 While the reasonable expectation of the parties concerning the amount of a costs award is a relevant factor that informs the determination of what is fair and reasonable, it is not the only, determinative factor and cannot be allowed to overwhelm the analysis of what is objectively reasonable in the circumstances of the case. To hold otherwise would result in the means of the parties artificially inflating costs with the concomitant chilling effect on access to justice for less wealthy parties.

63 Although each costs assessment is a fact-driven exercise related to a particular case, consistency with comparable awards in like cases is desirable and the reasonableness of costs that represent an outlier must be objectively and carefully scrutinized, taking into account the chilling effect on litigation that this kind of award could have.

65 Costs that are reasonable, fair, and proportionate for a party to pay in the circumstances of the case should reflect what is reasonably predictable and warranted for the type of activity undertaken in the circumstances of the case, rather than the amount of time that a party's lawyer is willing or permitted to expend. The party required to pay the successful party's costs "must not be faced with an award that does not reasonably reflect the amount of time and effort that was warranted by the proceedings".

66 The party seeking costs bears the burden of proving them to be reasonable, fair, and proportionate. The absence of dockets is not an automatic bar to proving or receiving an award of costs. However, absent dockets, a description of the activities for which fees and disbursements are claimed must be sufficient to permit for the kind of close scrutiny that the court is required to undertake. The material provided for the assessment must allow the court to come to a conclusion as to the amount of time reasonably required by the party seeking costs to deal with all aspects of the proceedings for which costs are claimed, including whether there was over-lawyering or unnecessary duplication of legal work. Bald statements do not assist the court with this task but give rise to the kind of mechanical calculation of hours times rates that this court cautioned against in Boucher, at para. 26, and in McNaughton Automotive Limited v. Co-operators General Insurance Co., 2009 ONCA 598, 255 O.A.C. 362, at para. 17 (footnotes omitted).

6In Przyk v. Hamilton Retirement Group Ltd. (The Court at Rushdale), 2021 ONCA 267, 70 C.P.C. (8th) 219, at para. 12, B. Zarnett J.A. stated:

18 Although sometimes referred to as the "loser pays" costs rule, this approach is not, properly understood, a rule at all. Costs are in the discretion of the court, which may determine by and to whom costs are payable and in what amount. A court in the exercise of that discretion may consider, among other things, the result of the proceeding. But the result is not the exclusive consideration, and thus a successful party does not have an entitlement to costs, but merely a reasonable expectation that they will be awarded, absent special circumstances.

7Substantial indemnity costs should only be awarded when an offer to settle is engaged or where the losing party has engaged in reprehensible, scandalous, or outrageous conduct: More v. 1362279 Ontario Ltd. (Seiko Homes), 2023 ONCA 527, para. 31. A party’s behaviour would have to be especially egregious to justify full indemnity costs: Net Connect Installation Inc. v. Mobile Zone Inc., 2017 ONCA 766, 140 O.R. (3d) 77, at para. 8.

Costs against the Estate Trustee Personally

8The respondents submit that costs of an unsuccessful appeal should be awarded against an estate trustee personally when the appeal is devoid of merit and was brought for its own benefit: Shannon v. Hrabovsky, 2024 ONCA 188, 93 E.T.R. (4th) 373, at para. 5.

9In Westover Estate, the Ontario Court of Appeal stated at para. 14:

Estate trustees are generally “entitled to be indemnified for all reasonably incurred costs in the administration of an estate”. Saddling estate trustees personally with legal costs where litigation was caused by the testator might well discourage them from initiating reasonably necessary legal proceedings to ensure the due administration of an estate. However, this is not an absolute rule. A court may order otherwise if an estate trustee has acted unreasonably or in substance for their own benefit, rather than for the benefit of the estate (footnotes omitted). [Emphasis added.].

10The respondents submit that:

The plaintiff is deceased. The appeal was brought by her lawyer, H. Keith Juriansz, who is now acting as the trustee of the plaintiff’s estate. Mr. Juriansz took on that role because the plaintiff owed his firm approximately $150,000 in legal fees and disbursements at the time of her death and the trustee named in the plaintiff’s will, Dr. Rachel Witten, was unwilling to act as such. The Estate has no assets and no liabilities except for the unpaid accounts from Mr. Juriansz’s firm. In effect, the herein appeal was a continuation of Mr. Juriansz’s efforts to get paid for the work that he had done for the plaintiff.

11The appellant submits that:

Prior to the commencement of the litigation, the Respondents took the bulk of her funds, leaving her unable to continue paying her legal fees and disbursements. Despite this, her counsel, Juriansz & Li, continued to act, not for the purpose of pursuing an unpaid account, but because Ms. Chernukhina was seeking to recover monies wrongfully taken from her by the Respondents.

Ms. Chernukhina was later diagnosed with Non-Hodgkins Lymphoma, received treatment over an extended period, became incapable, and ultimately passed away. The originally appointed Estate Trustee declined the appointment, and no one else was willing to act. The current Estate Trustee did not commence the action, nor did he prosecute it in his personal interest.

The Estate Trustee was not the only person who stood to benefit from a successful appeal and he would not personally recover any legal accounts if the appeal were successful. [Emphasis added.]

12The Estate Trustee did not dispute that the deceased owed $150,000 in legal fees and disbursements to his firm at the time of her death. Although he admitted that he stood to benefit from a successful appeal, the Estate Trustee stated he would not “personally recover” any amounts owed. This is too fine a distinction to make a difference for purposes of this analysis. The Appellant did not explain how he would not benefit from a successful appeal given that his firm is owed $150,000 and that such amount would be paid before any distributions are made from the Estate to beneficiaries.

13I agree with the respondents that this is an appropriate case for personal liability.

Scale of Costs

14The respondents submit that they should receive costs on a substantial indemnity basis for the following reasons:

In the instant case, the Appellant accused the Respondents of “fraudulent conduct” and of forging documents in a manner that constitutes an offence under s. 368(1) of the Criminal Code. The [Appellant] made those allegations notwithstanding the fact that there is no finding by any court that the Respondents have committed fraud, forgery or any other dishonest or criminal act. …

15The issue of the respondents’ alleged misconduct was not determined on this appeal. This appeal merely addressed the appeal from the Court’s decision to dismiss the action for delay and to discharge two CPLs. I do not find that this is an appropriate case for substantial indemnity costs as the respondents have not established that the appellant engaged in reprehensible, scandalous, or outrageous conduct.

Reasonableness of Behaviour

16The appellant submitted that no costs should be awarded in favour of the respondents due to their conduct before and during the litigation. No specifics of such behaviour were given other than the assertion that the respondents had provided a false document in an unsworn affidavit of documents. No such finding has been made and there is no merit to the assertion that the respondents should be disentitled to costs on this appeal for that reason.

Reasonableness of the Amount of Costs

17The respondents’ bill of costs shows that their full indemnity costs were $17,955, plus HST and disbursements. The applicant’s bill of costs shows that their full indemnity costs were $21,960, plus HST and disbursements.

18As noted earlier, the respondents bear the burden of proving that their claim for costs is reasonable, fair, and proportionate. In my view, the time claimed by the respondents (for instance, four hours for the preparation of costs submissions) is excessive.

19I find that it fair, reasonable, and proportionate for the appellant to personally pay partial indemnity costs of $12,200, inclusive of HST and disbursements to the respondents.

ORDER

20Order to go that the appellant shall personally pay costs of $12,200, inclusive of HST and disbursements, to the respondents within 30 days.