COURT OF APPEAL FOR ONTARIO

CITATION: Orfus Estate v. The Samuel and Bessie Orfus Family Foundation, 2013 ONCA 314

DATE: 20130510

DOCKET: C54532

Laskin, Sharpe and Epstein JJ.A.

BETWEEN

Myer Botnick as an Executor named in the Last Will and Testament of Bessie Orfus, and Elaine Orfus and Rachel Wardinger, personally and as Executors named in the Last Will and Testament of Bessie Orfus

Applicants (Respondents/ Appellants by way of cross-appeal)

and

The Samuel and Bessie Orfus Family Foundation, Carrie Heather Orfus- Gelkopf, Michael Abraham Orfus, Shayna Hyla Orfus, Sharon Gerstein, The Children’s Lawyer, Mitchell Gerstein and Yisraella Shira Gelkopf

Respondents (Appellant/ Respondent by way of cross-appeal)

Richard B. Swan and Emrys Davis, for the appellant/respondent by way of cross-appeal

Clare Burns and Mandy L. Seidenberg, for the respondents/appellants by way of cross-appeal

Heard: June 7 and June 15, 2012

On appeal from the judgment, dated September 30, 2011, with reasons reported at 2011 ONSC 3043, and on cross-appeal from the costs endorsement, dated November 14, 2011, of Justice Michael A. Penny of the Superior Court of Justice.

COSTS ENDORSEMENT

A. the main appeal

[1] The respondents ask for substantial indemnity costs of approximately $85,000; alternatively they ask for partial indemnity costs of approximately $58,000. The appellant, Sharon Gerstein, opposes the awarding of substantial indemnity costs and contends that the amount the respondents seek in partial indemnity costs is excessive.

[2] We agree generally with the appellant’s position. Her decision to appeal did not, as the respondents claim, constitute “continued harassment” or reprehensible conduct. She argued reasonable questions of law and process, and her challenge to the codicil raised a difficult issue.

[3] Thus, the respondents are entitled only to partial indemnity costs. However, their request for $58,000 exceeds a fair and reasonable amount. We award the respondents $30,000, inclusive of disbursements and applicable taxes.

B. the cross-appeal

[4] The respondents argue that there should be no costs of the cross-appeal. We disagree. The appellant was successful on the cross-appeal and is entitled to her fair and reasonable costs. We award $5,000 for the costs of the cross-appeal.

“John Laskin J.A.”

“Robert J. Sharpe J.A.”

“Gloria Epstein J.A.”