DATE: 20030407
DOCKET: C36763
COURT OF APPEAL FOR ONTARIO
RE: JOHN MITCHELL AND ROBERT MITCHELL Applicants (Appellants in Appeal) – and – JOSEPH MITCHELL Respondent (Respondent in Appeal)
BEFORE: MCMURTRY C.J.O., DOHERTY and GILLESE JJ.A.
COUNSEL: Donald Lamont for the appellant John Mitchell
Brian P. Pilley for the respondent Joseph Mitchell
HEARD: April 3, 2003
RELEASED ORALLY: April 3, 2003
On appeal from the judgment of Justice N. Douglas Coo of the Superior Court of Justice dated June 19, 2001.
E N D O R S E M E N T
[1] The trial judge’s determination turned on his assessment of the credibility of the respondent and his assessment of the competing evidence of the experts. He chose to believe the respondent and gave reasons for so doing. He preferred the evidence of the expert called by the respondent and, again, gave reasons for so doing. We see no basis upon which to interfere with those determinations.
[2] With respect to the appeal against costs, we begin by noting that in general, beneficiaries and putative beneficiaries are entitled to receive an accounting of an estate’s assets. If an administrator fails to provide such an accounting, the putative beneficiary is entitled to the court’s assistance in obtaining such an accounting. The costs of such proceedings are generally borne by the estate.
[1] In this case, the trial of an issue was necessary to resolve questions about the administration of the estate because the estate had not been fully administered. It may be that there were good reasons for not fully administering the estate but, in the circumstances, the costs of providing the beneficiary with an accounting -- which the beneficiary has a right to -- should be borne by the estate.
[2] Leave to appeal the order as to costs is granted. The costs order is set aside and an order shall go requiring the estate to pay the appellant’s reasonable legal costs, on a solicitor-and-client basis, of the trial of an issue before Coo J.
[3] Success on the appeal being divided, there shall be no order as to costs of the appeal.
“R.R. McMurtry C.J.O.”
“D.H. Doherty J.A.”
“E.E. Gillese J.A.”