Court File and Parties

COURT FILE NO.: 17-73107 DATE: 2020/03/06 SUPERIOR COURT OF JUSTICE - ONTARIO

IN THE ESTATE OF JEANNE HAYWARD (ALSO KNOWN AS JEAN HAYWARD), DECEASED

RE: Leslie Ann Hayward as Estate Trustee and the Estate of Jeanne Hayward (also known as Jean Hayward), Applicants

AND

Alexander William Keith Hayward, Shawn Hayward, David Hayward, Kelly Hayward and Lori Hayward, Respondents

BEFORE: Mr. Justice Stanley Kershman

COUNSEL: Gail Nicholls, Counsel for the Applicants Robert De Toni and Sarah Macaluso, Counsel for the Respondents

HEARD: December 16, 2019 at Ottawa

costs decision

KERSHMAN J.

[1] The summary trial decision for this matter was rendered on December 12, 2019. The issue of costs was argued on December 17, 2019. Costs outlines were provided. No Rule 49 Offers to Settle were provided.

[2] The defined terms that appear in the Court’s reasons for judgment in this matter are also to be applied in these reasons.

[3] The summary trial took place over a period of approximately five days.

[4] The matters to be decided included the authenticity of a document (the “Questioned Document”); the ownership of numerous items including motor vehicles, tractors, and furniture; whether the Estate owned monies for other items to Alex Hayward; and whether monies were owed to Leslie Hayward by Alex Hayward.

Applicant’s Position

(i) Success at Trial

[5] The Estate Trustee argues that she was successful on almost all issues save and except for who owned several pieces of furniture and two vehicles: the 1927 Whippet and the 1921 TT Produce Truck. Both vehicles and some of the furniture was found to be owned by Alex Hayward.

[6] The Estate Trustee acknowledges that some of the vehicles were found to be owned by the people listed in the Questioned Document.

[7] The Estate Trustee argues that save and except for Kelly Hayward, all of the Respondents argued that the Question Document was not authentic.

(ii) Questioned Document

[8] The Estate Trustee argues that if the Respondents had not taken any issue with the Questioned Document, the trial would have taken much less time and would not have required expert witnesses. The Estate Trustee also argues that the disputed vehicles would not have been put into storage for over 6 months and could have been released in accordance with the Questioned Document.

(iii) Roof, Malibu, Amish Shed and Ferguson Tractor

[9] In relation to the roof, the Malibu and the Amish Shed, the Estate Trustee’s position is that she was successful and that Alex Hayward’s claims failed.

[10] In relation to the Montana Tractor, Alex Hayward was found to be the owner but was found to owe Leslie Hayward $12,560, which was over 90 percent of the purchase price.

[11] In relation to the furniture, the Estate Trustee argues that she was successful in relation to approximately one half of the items while Alex Hayward was successful in relation to the other half.

[12] The Estate Trustee argues that costs should be awarded, payable to the Estate by the Respondents (except Kelly Hayward) either on a partial indemnity basis or a substantial indemnity basis. Furthermore, she argues the difference between whatever scale of costs the Court allows to the Estate Trustee and her full indemnity costs should be indemnified to her by the Estate. The Estate Trustee relies on the decision in Brown v. Rigsby, 2016 ONCA 521, 350 O.A.C. 236, at paras. 11-14 to support her position.

[13] The Estate Trustee argues that she should not have to pay any legal fees out of her own pocket.

[14] The Estate Trustee claimed partial indemnity costs of $52,564.53 inclusive of disbursements and HST. The claim on a substantial indemnity basis was $76,609.80 inclusive of disbursements and HST. The full indemnity costs are $84,623.92 inclusive of disbursements and HST.

[15] The Estate Trustee argues that the Court found that Alex Hayward had a selective memory and was combative in his demeanor when giving his evidence. The Estate Trustee argues under Rule 57.01(e) the Court can take into account the conduct of any person that tends to shorten or lengthen unnecessarily the duration of the proceedings which includes the Court’s findings of Alex Hayward’s behaviour.

[16] In addition, the Estate Trustee also relies on Rule 57.01(f) and submits that any step in the proceeding that was improper, vexatious, or unnecessary should be taken into account when calculating costs. The Estate Trustee argues that putting the Questioned Document in issue as to its authenticity by the Respondents should be a factor under this subsection.

[17] The Estate Trustee seeks the costs paid out of the distributive shares of Shawn Hayward, David Hayward and Lori Hayward, but not Alex Hayward, as he is not a beneficiary of the Will.

[18] The Estate Trustee also argues that the Respondents should pay their own costs.

Respondents’ Position

[19] The Respondents cite the motion heard in December 2017 by Justice McKinnon ordering Alex Hayward to leave the property and awarding costs in the amount of $15,000. They argue that those costs should be deducted from the Estate Trustee’s costs outline on partial indemnity or full indemnity basis.

[20] The Respondents argue that the summary trial dispute was between the Estate Trustee and Alex Hayward and did not involve either Shawn, David or Lori Hayward. They argue that those three children were not claiming anything.

[21] In relation to the Montana Tractor, the Respondents argue that Leslie claimed that the Tractor belonged to her. The Court found that it belonged to Alex Hayward. The Respondents acknowledge that the Court found that Alex Hayward had not paid for it and owed Leslie $12,560.

[22] The Respondents argue that their costs in relation to the Montana Tractor, the Ferguson Tractor and the Amish Shed should come from the Estate.

[23] The Respondents rely on the cases of McDougald Estate v. Gooderham, 255 D.L.R. (4th) 435 (Ont. C.A.) at paras. 78 and 80, and Sawdon Estate v. Watch Tower Bible and Tract Society of Canada, 2014 ONCA 101, 119 O.R. (3d) 81, at para. 82.

[24] The Respondents argue that Alex Hayward should pay partial indemnity costs for some items and should not be liable for costs on the other items that he successfully received, being some of the vehicles and furniture.

[25] The Respondents argue that the trial time was shortened because a summary trial procedure was chosen instead of cross-examinations on affidavits prior to the trial and then examinations in chief at the trial.

[26] Mr. De Toni says that Ms. Nicholls’ fees are reasonable.

[27] The Respondents claim costs as follows:

a. On a partial indemnity basis including disbursements and HST of $63,728.77; b. On a substantial indemnity basis including disbursements and HST of $83,413.14; and c. On a full indemnity basis inclusive of disbursements and HST $103,097.51.

[28] The Respondents argues that Leslie Hayward personally should pay the costs of the items in dispute that the Court found belonged to her: the Amish Shed, the Ferguson Tractor, and the monies owing with respect to the Montana Tractor.

[29] The Respondents argue that with respect to the remaining items in dispute, Alex Hayward should be able to obtain the costs from the Estate save and except for the Malibu and the roof because he was not successful on those claims.

[30] In relation to the roof and the Malibu, Mr. De Toni argues that Alex Hayward should pay those costs on a partial indemnity basis.

[31] The Respondents also argue that the cost of the balance of the Respondents — Shawn, David, and Lori Hayward — be paid out of the Estate.

Analysis

[32] This was a five-day summary trial. The Court allowed cross-examination in excess of the time limits set out in the Rules of Civil Procedure because of the complexity of the situation and the number of items in dispute.

[33] The Court finds that Kelly Hayward, while noted as a Respondent, did not truly take a position in this litigation. She was not represented by counsel and did not represent herself.

[34] The Court, when referring to the “Respondents”, means only Alex Hayward, Shawn Hayward, David Hayward and Lori Hayward.

[35] The Court was advised that McKinnon J. rendered a decision on December 15, 2017, in relation to whether Alex Hayward should be allowed to remain on the Property. The Court ordered that $15,000 inclusive of disbursements and HST be paid to the Estate Trustee as follows:

1. $7,500 by Alex Hayward, personally; and
2. $7,500 by the Estate.

[36] In addition, at the beginning of the trial, the Respondents brought a motion on short notice for leave to file an expert report by Marc Gaudreau and to call him as an expert witness. The relief on the motion was granted. The Court required Alex Hayward to pay costs of $4,500 to the Estate Trustee. The Court will deduct this amount, which was compensation for time spent by the Applicants in preparation for trial including the adjournment.

[37] In its calculations, the Court will deduct the aforesaid amounts (totalling $19,500) and decide who should be credited.

[38] According to the Estate Trustee, there is approximately $600,000 in the Estate.

[39] The issue of costs in Estate matters was dealt with in the recent Court of Appeal of Ontario decision in Brown v. Rigsby, cited above. The Court said the following at paragraphs 11-14:

[11] Estate trustees are entitled to be indemnified for all reasonably incurred costs in the administration of an estate. This includes the legal costs of an action reasonably defended, to the extent these costs are not recovered from another person. However, a court may order otherwise if an estate trustee has acted unreasonably or in substance for his or her own benefit, rather than for the benefit of the estate: Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, at 391. The principles described in Geffen were not displaced by this court’s decision in McDougald Estate.

[12] In Sawdon Estate v. Watch Tower Bible and Tract Society of Canada, 2014 ONCA 101, 119 O.R. (3d) 81, at para. 82, this court reiterated the principle that estate trustees are entitled to be fully indemnified by the estate for their reasonably incurred legal costs to the extent they are not recovered from any other person. That is the general rule.

[13] Most recently, in Neuberger Estate v. York, 2016 ONCA 303, [2016] O.J. No. 2151, Gillese J.A. addressed the costs of parties engaged in estates litigation. At paras. 24 and 25, she wrote:

In estates litigation in Ontario, the historical approach to costs has been displaced in favour of one in which the costs rules in civil litigation apply both at first instance and on appeal, unless the court finds that one or more of the relevant public policy considerations dictate that costs (or some portion thereof) should be paid out of the assets of the estate: McDougald Estate v. Gooderham (2005), 255 D.L.R. (4th) 435 (Ont. C.A.), at para. 80; see also Sawdon Estate v. Sawdon, 2014 ONCA 101, 370 D.L.R. (4th) 686, at para. 101. The public policy considerations at play in estate litigation are primarily of two sorts: (1) where the difficulties or ambiguities that give rise to the litigation are caused, in whole or in part, by the testator; and (2) the need to ensure that estates are properly administered.

Blended costs awards, in which a portion of costs is payable by the losing party and the balance is payable out of the estate, are available at first instance and on appeal, in the discretion of the court, where one or more of the relevant public policy considerations are found to be engaged: Sawdon, at paras. 93-100 and 107.

[14] In summary, subject to the discretion of the court, the general rules governing an estate trustee’s ability to recover legal costs from an estate are as follows:

• an estate trustee is entitled to indemnification from the estate for all reasonably incurred legal costs;
• if an estate trustee acts unreasonably or in his or her own self-interest, he or she is not entitled to indemnification from the estate; and
• if an estate trustee recovers a portion of his or her costs from another person or party, he or she is entitled to indemnification from the estate for the remaining reasonably incurred costs.

[40] The Respondents argued orally at the costs submissions that the authenticity of the Questioned Document was an alternative argument. The Court does not accept that position. The Court finds that one of the primary issues raised by the Respondents was whether the Questioned Document was authentic or not. The Respondents brought a motion on short notice to introduce their expert report. They expended the time and the resources for an expert which required the Estate Trustee to obtain her own expert. The Estate Trustee always took the position that the Questioned Document was authentic. Even though the decision resolved the ownership of certain vehicles, the Court finds that it was because the Court found the Questioned Document to be authentic, and not for any other reason.

[41] Alex Hayward claimed that his signature was not on the Questioned Document. He was fully supported in this position by Shawn, David and Lori Hayward. In addition to giving evidence in support of it being not authentic they also provided their own evidence claiming that it was fraudulent. At one point in the trial, Shawn Hayward testified that Leslie Hayward could have tampered with her mother’s computer. Leslie Hayward claimed that she could not have manipulated some of the emails.

[42] The Court finds that Shawn, David and Lori Hayward were in this together with Alex Hayward.

[43] Excluding Kelly Hayward, all of the Respondents were represented by one lawyer notwithstanding that the Respondents knew Alex Hayward was not a beneficiary. This was known to everyone long before the trial started. Notwithstanding that fact, Shawn, David and Lori Hayward chose to be represented by the same lawyer as Alex Hayward and, therefore, all of them had very similar, if not the same interests. The Court rejects that Respondents’ argument that the costs should be only as against Alex Hayward. The Court finds that Shawn, David and Lori Hayward actively participated with their father in these proceedings and costs consequences should apply to all of them.

[44] On this basis, the Court finds that the interests of Alex Hayward are not separate from Shawn, David and Lori Hayward.

[45] Alex Hayward was tenacious and intransigent. The Court found that he signed the Questioned Document although he claimed otherwise. In addition, he denied that Leslie paid for the Montana Tractor even though the cheque proved that she did.

[46] The major issues and their success at this trial can be summarized in the following chart.

| Issue | Who was successful? --- citation: "Hayward v. Hayward, 2020 ONSC 1458" parties: "Hayward v. Hayward" party_moving: "Hayward" party_responding: "Hayward" court: "Superior Court of Justice" court_abbreviation: "ONSC" jurisdiction: "Ontario" date judgement: "2020-03-06" date heard: "December 16, 2019 at Ottawa" applicant: [] applicant counsel: [] respondent: [] respondent counsel: [] judge: [] year: 2020 decision number: 1458 file number: "" source: "https://www.canlii.org/en/on/onsc/doc/2020/2020onsc1458/2020onsc1458.html" cited_cases:

• title: "2016 ONCA 521" url: "https://www.canlii.org/en/on/onca/doc/2016/2016onca521/2016onca521.html"
• title: "11-14" url: "https://www.canlii.org/en/on/onca/doc/2016/2016onca521/2016onca521.html#par11"
• title: "" url: "https://www.canlii.org/en/on/onca/doc/2005/2005canlii21091/2005canlii21091.html"
• title: "78 and 80" url: "https://www.canlii.org/en/on/onca/doc/2005/2005canlii21091/2005canlii21091.html#par78"
• title: "" url: "https://www.canlii.org/en/on/onca/doc/2014/2014onca101/2014onca101.html"
• title: "82" url: "https://www.canlii.org/en/on/onca/doc/2014/2014onca101/2014onca101.html#par82"
• title: "" url: "https://www.canlii.org/en/ca/scc/doc/1991/1991canlii69/1991canlii69.html"
• title: "" url: "https://www.canlii.org/en/on/onca/doc/2016/2016onca303/2016onca303.html"
• title: "" url: "https://www.canlii.org/en/on/onca/doc/2005/2005canlii21091/2005canlii21091.html#par80"
• title: "101" url: "https://www.canlii.org/en/on/onca/doc/2014/2014onca101/2014onca101.html#par101"
• title: "" url: "https://www.canlii.org/en/on/onca/doc/2014/2014onca101/2014onca101.html#par93"
• title: "2009 ONCA 722" url: "https://www.canlii.org/en/on/onca/doc/2009/2009onca722/2009onca722.html"
• title: "51 and 52" url: "https://www.canlii.org/en/on/onca/doc/2009/2009onca722/2009onca722.html#par51"

COURT FILE NO . : 17-73107 DATE: 2020/03/06 SUPERIOR COURT OF JUSTICE - ONTARIO IN THE ESTATE OF JEANNE HAYWARD (ALSO KNOWN AS JEAN HAYWARD), DECEASED RE: Leslie Ann Hayward as Estate Trustee and the Estate of Jeanne Hayward (also known as Jean Hayward) , A pplicants AND Alexander William Keith Hayward, Shawn Hayward , David Hayward, Kelly Hayward and Lori Hayward , Respondents BEFORE: Mr. Justice Stanley Kershman COUNSEL: Gail Nicholls, Counsel for the Applicants Robert De Toni and Sarah Macaluso, Counsel for the Respondents HEARD: December 16, 2019 at Ottawa costs decision KERSHMAN J. [ 1 ] The summary trial decision for this matter was rendered on December 12, 2019. The issue of costs was argued on December 17, 2019. Costs outlines were provided. No Rule 49 Offers to Settle were provided. [ 2 ] The defined terms that appear in the Court’s reasons for judgment in this matter are also to be applied in these reasons. [ 3 ] The summary trial took place over a period of approximately five days. [ 4 ] The matters to be decided included the authenticity of a document (the “Questioned Document”); the ownership of numerous items including motor vehicles, tractors, and furniture; whether the Estate owned monies for other items to Alex Hayward; and whether monies were owed to Leslie Hayward by Alex Hayward. Applicant’s Position (i) Success at Trial [ 5 ] The Estate Trustee argues that she was successful on almost all issues save and except for who owned several pieces of furniture and two vehicles: the 1927 Whippet and the 1921 TT Produce Truck. Both vehicles and some of the furniture was found to be owned by Alex Hayward. [ 6 ] The Estate Trustee acknowledges that some of the vehicles were found to be owned by the people listed in the Questioned Document. [ 7 ] The Estate Trustee argues that save and except for Kelly Hayward, all of the Respondents argued that the Question Document was not authentic. (ii) Questioned Document [ 8 ] The Estate Trustee argues that if the Respondents had not taken any issue with the Questioned Document, the trial would have taken much less time and would not have required expert witnesses. The Estate Trustee also argues that the disputed vehicles would not have been put into storage for over 6 months and could have been released in accordance with the Questioned Document. (iii) Roof, Malibu, Amish Shed and Ferguson Tractor [ 9 ] In relation to the roof, the Malibu and the Amish Shed, the Estate Trustee’s position is that she was successful and that Alex Hayward’s claims failed. [ 10 ] In relation to the Montana Tractor, Alex Hayward was found to be the owner but was found to owe Leslie Hayward $12,560, which was over 90 percent of the purchase price. [ 11 ] In relation to the furniture, the Estate Trustee argues that she was successful in relation to approximately one half of the items while Alex Hayward was successful in relation to the other half. [ 12 ] The Estate Trustee argues that costs should be awarded, payable to the Estate by the Respondents (except Kelly Hayward) either on a partial indemnity basis or a substantial indemnity basis. Furthermore, she argues the difference between whatever scale of costs the Court allows to the Estate Trustee and her full indemnity costs should be indemnified to her by the Estate. The Estate Trustee relies on the decision in Brown v. Rigsby , 2016 ONCA 521 , 350 O.A.C. 236, at paras. 11-14 to support her position. [ 13 ] The Estate Trustee argues that she should not have to pay any legal fees out of her own pocket. [ 14 ] The Estate Trustee claimed partial indemnity costs of $52,564.53 inclusive of disbursements and HST. The claim on a substantial indemnity basis was $76,609.80 inclusive of disbursements and HST. The full indemnity costs are $84,623.92 inclusive of disbursements and HST. [ 15 ] The Estate Trustee argues that the Court found that Alex Hayward had a selective memory and was combative in his demeanor when giving his evidence. The Estate Trustee argues under Rule 57.01(e) the Court can take into account the conduct of any person that tends to shorten or lengthen unnecessarily the duration of the proceedings which includes the Court’s findings of Alex Hayward’s behaviour. [ 16 ] In addition, the Estate Trustee also relies on Rule 57.01(f) and submits that any step in the proceeding that was improper, vexatious, or unnecessary should be taken into account when calculating costs. The Estate Trustee argues that putting the Questioned Document in issue as to its authenticity by the Respondents should be a factor under this subsection. [ 17 ] The Estate Trustee seeks the costs paid out of the distributive shares of Shawn Hayward, David Hayward and Lori Hayward, but not Alex Hayward, as he is not a beneficiary of the Will. [ 18 ] The Estate Trustee also argues that the Respondents should pay their own costs. Respondents’ Position [ 19 ] The Respondents cite the motion heard in December 2017 by Justice McKinnon ordering Alex Hayward to leave the property and awarding costs in the amount of $15,000. They argue that those costs should be deducted from the Estate Trustee’s costs outline on partial indemnity or full indemnity basis. [ 20 ] The Respondents argue that the summary trial dispute was between the Estate Trustee and Alex Hayward and did not involve either Shawn, David or Lori Hayward. They argue that those three children were not claiming anything. [ 21 ] In relation to the Montana Tractor, the Respondents argue that Leslie claimed that the Tractor belonged to her. The Court found that it belonged to Alex Hayward. The Respondents acknowledge that the Court found that Alex Hayward had not paid for it and owed Leslie $12,560. [ 22 ] The Respondents argue that their costs in relation to the Montana Tractor, the Ferguson Tractor and the Amish Shed should come from the Estate. [ 23 ] The Respondents rely on the cases of McDougald Estate v. Gooderham , 2005 21091 (ON CA) , 255 D.L.R. (4th) 435 (Ont. C.A.) at paras. 78 and 80 , and Sawdon Estate v. Water Tower Bible and Tract Society of Canada , 2014 ONCA 101 , 119 O.R. (3d) 81, at para. 82 . [ 24 ] The Respondents argue that Alex Hayward should pay partial indemnity costs for some items and should not be liable for costs on the other items that he successfully received, being some of the vehicles and furniture. [ 25 ] The Respondents argue that the trial time was shortened because a summary trial procedure was chosen instead of cross-examinations on affidavits prior to the trial and then examinations in chief at the trial. [ 26 ] Mr. De Toni says that Ms. Nicholls’ fees are reasonable. [ 27 ] The Respondents claim costs as follows: a. On a partial indemnity basis including disbursements and HST of $63,728.77; b. On a substantial indemnity basis including disbursements and HST of $83,413.14; and c. On a full indemnity basis inclusive of disbursements and HST $103,097.51. [ 28 ] The Respondents argues that Leslie Hayward personally should pay the costs of the items in dispute that the Court found belonged to her: the Amish Shed, the Ferguson Tractor, and the monies owing with respect to the Montana Tractor. [ 29 ] The Respondents argue that with respect to the remaining items in dispute, Alex Hayward should be able to obtain the costs from the Estate save and except for the Malibu and the roof because he was not successful on those claims. [ 30 ] In relation to the roof and the Malibu, Mr. De Toni argues that Alex Hayward should pay those costs on a partial indemnity basis. [ 31 ] The Respondents also argue that the cost of the balance of the Respondents — Shawn, David, and Lori Hayward — be paid out of the Estate. Analysis [ 32 ] This was a five-day summary trial. The Court allowed cross-examination in excess of the time limits set out in the Rules of Civil Procedure because of the complexity of the situation and the number of items in dispute. [ 33 ] The Court finds that Kelly Hayward, while noted as a Respondent, did not truly take a position in this litigation. She was not represented by counsel and did not represent herself. [ 34 ] The Court, when referring to the “Respondents”, means only Alex Hayward, Shawn Hayward, David Hayward and Lori Hayward. [ 35 ] The Court was advised that McKinnon J. rendered a decision on December 15, 2017, in relation to whether Alex Hayward should be allowed to remain on the Property. The Court ordered that $15,000 inclusive of disbursements and HST be paid to the Estate Trustee as follows:

1. $7,500 by Alex Hayward, personally; and
2. $7,500 by the Estate. [ 36 ] In addition, at the beginning of the trial, the Respondents brought a motion on short notice for leave to file an expert report by Marc Gaudreau and to call him as an expert witness. The relief on the motion was granted. The Court required Alex Hayward to pay costs of $4,500 to the Estate Trustee. The Court will deduct this amount, which was compensation for time spent by the Applicants in preparation for trial including the adjournment. [ 37 ] In its calculations, the Court will deduct the aforesaid amounts (totalling $19,500) and decide who should be credited. [ 38 ] According to the Estate Trustee, there is approximately $600,000 in the Estate. [ 39 ] The issue of costs in Estate matters was dealt with in the recent Court of Appeal of Ontario decision in Brown v. Rigsby , cited above. The Court said the following at paragraphs 11-14: [11] Estate trustees are entitled to be indemnified for all reasonably incurred costs in the administration of an estate. This includes the legal costs of an action reasonably defended, to the extent these costs are not recovered from another person. However, a court may order otherwise if an estate trustee has acted unreasonably or in substance for his or her own benefit, rather than for the benefit of the estate: Geffen v. Goodman Estate , 1991 69 (SCC) , [1991] 2 S.C.R. 353, at 391. The principles described in Geffen were not displaced by this court’s decision in McDougald Estate . [12] In Sawdon Estate v. Watch Tower Bible and Tract Society of Canada , 2014 ONCA 101 , 119 O.R. (3d) 81, at para. 82 , this court reiterated the principle that estate trustees are entitled to be fully indemnified by the estate for their reasonably incurred legal costs to the extent they are not recovered from any other person. That is the general rule. [13] Most recently, in Neuberger Estate v. York , 2016 ONCA 303 , [2016] O.J. No. 2151, Gillese J.A. addressed the costs of parties engaged in estates litigation. At paras. 24 and 25, she wrote: In estates litigation in Ontario, the historical approach to costs has been displaced in favour of one in which the costs rules in civil litigation apply both at first instance and on appeal, unless the court finds that one or more of the relevant public policy considerations dictate that costs (or some portion thereof) should be paid out of the assets of the estate: McDougald Estate v. Gooderham (2005), 2005 21091 (ON CA) , 255 D.L.R. (4th) 435 (Ont. C.A.), at para. 80 ; see also Sawdon Estate v. Sawdon , 2014 ONCA 101 , 370 D.L.R. (4th) 686, at para. 101 . The public policy considerations at play in estate litigation are primarily of two sorts: (1) where the difficulties or ambiguities that give rise to the litigation are caused, in whole or in part, by the testator; and (2) the need to ensure that estates are properly administered. Blended costs awards, in which a portion of costs is payable by the losing party and the balance is payable out of the estate, are available at first instance and on appeal, in the discretion of the court, where one or more of the relevant public policy considerations are found to be engaged: Sawdon , at paras. 93-100 and 107 . [14] In summary, subject to the discretion of the court, the general rules governing an estate trustee’s ability to recover legal costs from an estate are as follows:

• an estate trustee is entitled to indemnification from the estate for all reasonably incurred legal costs;
• if an estate trustee acts unreasonably or in his or her own self-interest, he or she is not entitled to indemnification from the estate; and
• if an estate trustee recovers a portion of his or her costs from another person or party, he or she is entitled to indemnification from the estate for the remaining reasonably incurred costs. [ 40 ] The Respondents argued orally at the costs submissions that the authenticity of the Questioned Document was an alternative argument. The Court does not accept that position. The Court finds that one of the primary issues raised by the Respondents was whether the Questioned Document was authentic or not. The Respondents brought a motion on short notice to introduce their expert report. They expended the time and the resources for an expert which required the Estate Trustee to obtain her own expert. The Estate Trustee always took the position that the Questioned Document was authentic. Even though the decision resolved the ownership of certain vehicles, the Court finds that it was because the Court found the Questioned Document to be authentic, and not for any other reason. [ 41 ] Alex Hayward claimed that his signature was not on the Questioned Document. He was fully supported in this position by Shawn, David and Lori Hayward. In addition to giving evidence in support of it being not authentic they also provided their own evidence claiming that it was fraudulent. At one point in the trial, Shawn Hayward testified that Leslie Hayward could have tampered with her mother’s computer. Leslie Hayward claimed that she could not have manipulated some of the emails. [ 42 ] The Court finds that Shawn, David and Lori Hayward were in this together with Alex Hayward. [ 43 ] Excluding Kelly Hayward, all of the Respondents were represented by one lawyer notwithstanding that the Respondents knew Alex Hayward was not a beneficiary. This was known to everyone long before the trial started. Notwithstanding that fact, Shawn, David and Lori Hayward chose to be represented by the same lawyer as Alex Hayward and, therefore, all of them had very similar, if not the same interests. The Court rejects that Respondents’ argument that the costs should be only as against Alex Hayward. The Court finds that Shawn, David and Lori Hayward actively participated with their father in these proceedings and costs consequences should apply to all of them. [ 44 ] On this basis, the Court finds that the interests of Alex Hayward are not separate from Shawn, David and Lori Hayward. [ 45 ] Alex Hayward was tenacious and intransigent. The Court found that he signed the Questioned Document although he claimed otherwise. In addition, he denied that Leslie paid for the Montana Tractor even though the cheque proved that she did. [ 46 ] The major issues and their success at this trial can be summarized in the following chart. Issue Who was successful?

1. Was the Questioned Document authentic? Estate Trustee
2. Which expert evidence was accepted? Estate Trustee
3. Did Alex Hayward have a valid claim vs. the Estate for the Roof? Estate Trustee
4. Did Alex Hayward have a valid claim against the Estate for the Malibu? Estate Trustee
5. Who owned the Montana Tractor and was money owing for it? While Alex Hayward was successful as to ownership, Leslie Hayward was successful on being paid the balance of the amount paid by her for the Tractor, which are about 90 percent of the purchase price.
6. Who owned the Ferguson Tractor? Leslie Hayward
7. Who owned the Amish Shed? Leslie Hayward
8. Who owned the Vehicles in dispute? 1927 Whippet and 1921 TT Truck belonged to Alex Hayward. Almost all of the vehicles in dispute were transferred as per the Questioned Document.
9. Who owned the Furniture in dispute? Divided Success Estate Trustee successful on seven items. Alex Hayward successful on six items. [ 47 ] Whether Leslie was successful on her own or as Estate Trustee, the Estate Trustee is required to satisfy her fiduciary obligations under the terms of the Will, including the determination of ownership of the personal property located at 6292 Gallagher Road. Therefore, the Estate Trustee had to obtain instructions from the Court as to what asset belonged to whom, and she did. [ 48 ] In terms of the Montana Tractor, while it did not belong to the Estate Trustee personally, Alex Hayward did not pay her for it. Alex Hayward did not acknowledge that he owed her the money even when faced with a cheque that was uncontradicted proof of who paid for the Montana Tractor. He denied that Leslie paid for it or that he owed her any monies for the tractor. He wanted ownership of it without paying for it. At paras. 72-74 of its reasons for judgment, the Court addressed the issue of the ownership of the Montana Tractor; specifically, although the matter was not pleaded, the parties requested that the Court decide who owned it, which it did. [ 49 ] In a similar vein, the issue of the Amish Shed was dealt with by the Court and Leslie was successful. [ 50 ] As to the Ferguson Tractor, it was listed in the Questioned Document, and Leslie was successful. [ 51 ] The Court finds that Leslie’s costs in relation to those items should be paid to the Estate Trustee as opposed to Leslie personally. [ 52 ] The Court finds that in this case, the Estate Trustee should be fully indemnified. The Court finds that the Estate Trustee acted reasonably throughout this matter in an attempt to satisfy her fiduciary duties. [ 53 ] The Court finds that based on the facts of this case and the conduct of the Respondents, substantial indemnity costs should be awarded to the Estate Trustee payable by the Respondents. The Court also finds that the balance of the Estate Trustee’s costs should be payable out of the Estate. The calculations are as set out later on in this decision. [ 54 ] The Court is not aware of Alex Hayward’s assets. The Court is aware that Shawn, David and Lori Hayward are entitled to equal distributive shares from the Estate. [ 55 ] The Court finds that the costs awarded herein are payable by Alex Hayward, Shawn Hayward, David Hayward and Leslie Hayward jointly and severally. In the event that these costs are not paid within 30 days, all of the Applicant’s costs not paid shall be paid out of the distributive shares of Shawn, David and Lori Hayward. They in turn can make arrangements with Alex Hayward to be reimbursed by him. [ 56 ] In this particular case, it turned out that the Amish Shed and the Ferguson Tractor actually belonged to Leslie. As Estate Trustee, Leslie was required to prove to the Court that these items belonged to her because their ownership was disputed by the Respondents. [ 57 ] As to the Rule 57.01 Rules of Civil Procedure factors, the Court finds that:

a. The case was important to both parties as it dealt with ownership of property; b. The matter was moderately complex and the matters were important to all sides; c. The conduct of the Respondents in relation to the Questioned Document and Alex Hayward’s position in relation to the Montana Tractor as well as other issues lengthened the trial in this matter; and d. The positions taken by Alex Hayward and supported by Shawn, David and Lori Hayward lengthened the trial in this matter.

[58] The Court finds that the Estate Trustee was far more successful than the Respondents in relation to numerous matters, including that:

• The Questioned Document was found to be authentic;
• The Applicant’s expert evidence was accepted;
• The issues related to the Roof, the Malibu, the Ferguson tractor, the Amish Shed, and seven pieces of furniture were determined largely in the Estate Trustee’s favour; and
• The issues related to vehicles that were transferred in accordance with the Questioned Document.

[59] Alex Hayward was successful in relation to six items of furniture and two vehicles.

[60] While Alex Hayward was successful in relation to the Montana Tractor, the Court found that he owed over 90 percent of the purchase price for the Tractor to Leslie Hayward.

[61] The Court also notes that Shawn Hayward’s evidence was that Leslie had tampered with her mother’s computer to create the Questioned Document.

[62] The Court finds that the hourly rates charged by both counsel were appropriate based on their year of call to the bar.

[63] The total amount claimed by the Estate Trustee on a full indemnity basis is $84,623.92 inclusive of disbursements and HST.

[64] The Applicant claimed $76,609.80 on account of substantial indemnity costs using a 90 percent of the full indemnity cost.

[65] The Court finds that it is appropriate for the Estate Trustee to be fully indemnified. The Court finds that substantial indemnity costs should be paid to the Applicant by the Respondents but only on a basis of 80 percent as opposed to 90 percent, with the balance to be paid out of the Estate.

[66] The following are the Court’s calculations of substantial indemnity costs and the costs to be paid out of the Estate to the Estate Trustee.

Item	Amount
Total Indemnity Fees, inclusive of disbursements and HST	$84,623.92
Total indemnity fees, exclusive of disbursements and HST	$70,927.25
Substantial Indemnity Fees $70,927.25 x 80%	$56,741.80
Plus HST on Substantial Indemnity Fees	$7,376.44
Plus all Disbursements	$4,475.45
Less costs already ordered, applied against fees and HST	(19,500.00)
Total payable by the Respondents (except Kelly Hayward) inclusive of fees, disbursements and HST on a substantial indemnity basis	$49,093.69
Remainder of costs to be paid by the Estate to the Estate Trustee	$16,030.23

[67] The Court finds that on based on the facts of this case, the greater success of the Estate Trustee, and the partial success of the Respondents, that the Respondents should be entitled to a portion of their costs payable out of the Estate. Bearing in mind the specific facts and circumstances of this case and the concept of reasonableness and the other principles as discussed in the case of Davies v. Clarington (Municipality), 2009 ONCA 722 at paras. 51 and 52, the Court finds that all Respondents shall be entitled to have the total amount of $20,000 ($5,000 for each Respondent) paid out of the Estate which is inclusive of disbursements and HST.

[68] In summary, the Court orders that:

1. The Applicant Estate Trustee is to be fully indemnified;
2. The Estate pay the Estate Trustee costs of $16,030.23;
3. The Respondents Alex Hayward, Shawn Hayward, David Hayward and Lori Hayward, jointly and severally, pay the sum of $49,093.69 to the Estate Trustee within 30 days, failing which such costs should be paid equally out of the distributive shares of Shawn Hayward, David Hayward and Lori Hayward; and
4. The Estate pay the Respondents Alex Hayward, Shawn Hayward, David Hayward and Lori Hayward the sum of $5,000 each, for a total of $20,000.

[69] The costs payable by the Respondents and the costs payable to the Respondents bear post judgment interest after 30 days from today in accordance with sections 127 and 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[70] Order accordingly.

Mr. Justice Stanley J. Kershman

Date: March 6, 2020

COURT FILE NO.: 17-73107 DATE: 2020/03/06 ONTARIO SUPERIOR COURT OF JUSTICE IN THE ESTATE OF JEANNE HAYWARD (ALSO KNOWN AS JEAN HAYWARD), DECEASED RE: Leslie Ann Hayward as Estate Trustee and the Estate of Jeanne Hayward (also known as Jean Hayward), Applicants AND Alexander William Keith Hayward, Shawn Hayward, David Hayward, Kelly Hayward and Lori Hayward, Respondents BEFORE: Mr. Justice Stanley Kershman COUNSEL: Gail Nicholls, Counsel for the Applicants Robert De Toni and Sarah Macaluso, Counsel for the Respondents costs decision Kershman, J. Released: March 6, 2020