In the Matter of the Estate of David Munro Welton, deceased

Court of Appeal for Ontario

Date: October 23, 2017

Docket: C63326

Panel: MacFarland, Hourigan and Pardu JJ.A.

Parties

Applicant (Respondent): The Bank of Nova Scotia Trust Company in its capacity as Estate Trustee of the Estate of David Munro Welton

Respondents (Appellant): Catherine Haugrud, Kym Welton, David Munro Welton Jr., Darlene Alice May Welton, Morgan Welton, Gray Welton, Jack Haugrud, Emma Haugrud, and The Children's Lawyer

Counsel

• Robert Rueter and David Barbaree, for the appellant
• Craig Vander Zee, for the respondent The Bank of Nova Scotia in its capacity of Estate Trustee
• Justin de Vries, for the respondent Catherine Haugrud
• Michael Bordin and Karen Watters, for Simpson Wigle Law LLP
• Bianca La Neve, for the Office of the Children's Lawyer

Hearing and Appeal

Heard and released orally: October 23, 2017

On appeal from: The order of Justice Ruth Mesbur of the Superior Court of Justice, dated December 29, 2016.

Reasons for Decision

[1] The appellant who is the widow of the deceased testator did not challenge the will and elected to take under the will. In these circumstances, the motion judge was correct to proceed with the rectification motion before her. That motion, which was opposed only by the appellant, was to correct an error the drafting solicitor conceded he made, one where his evidence was corroborated by that of the deceased's accountant. In our view, the deceased's intention to liquidate sufficient shares that he owned to provide two of his children with $1 million each was apparent on the face of the will and redemption of 150 class D shares which he did not own when the will was drafted, would not have in any event have provided this necessary funding. In these circumstances, the motion judge made no error in receiving Mr. Milne's evidence.

[2] The motion judge relied on correct legal principles as set out in Robinson Estate v. Robinson, 2011 ONCA 493 and applied those principles correctly. The factual findings are amply supported by the evidence she had before her. In our view, this appeal is simply an effort to have this court re-hear the issues that were before the motion judge, but to decide them differently. That is not the role of this court.

[3] The appellant also seeks leave to appeal the motion judge's costs disposition. It goes without saying that leave to appeal costs is sparingly granted and only where there has been an error in principle, or where the result is "plainly wrong" will this court intervene.

[4] The argument before us seems to be that in not granting her costs below, and requiring her contribution to some of the other parties, the motion judge failed to take into consideration the public policy aspects of estate litigation. And accordingly it was "unfair" to deny the appellant her costs below and to require her contribution to the difference between full and partial indemnity costs to the other parties.

[5] We disagree. It is clear from her endorsement that the motion judge was alive to the different considerations that apply in estate matters in relation to public policy issues: see para. 16 of her reasons. Her endorsement in relation to costs is reflective of the evidentiary findings she made on the particular facts of the case before her. We would not interfere, and leave to appeal is denied.

[6] In the result, the appeal is dismissed as is the motion for leave to appeal costs.

Costs Award

[7] In our view, all of the parties should receive their partial indemnity costs payable by the appellant. The estate trustee, Bank of Nova Scotia is entitled to its full indemnity costs of $16,410.99 payable as follows:

• by the appellant, its partial indemnity costs of $9,625.34;
• the balance of $6,785.65 by the estate.

[8] The Children's Lawyer should receive its full indemnity costs of $10,000 payable as follows:

• Its partial indemnity costs of $7,000, by the appellant;
• the balance of $3,000 by the estate.

[9] Catherine Haugrud should have her full indemnity costs of $49,206.26 payable as follows:

• by the appellant, her partial indemnity costs of $28,856.25;
• and the balance of $20,305.01 from the estate.

[10] The non-party lawyer should receive his partial indemnity costs only in the sum of $33,957.89 from the appellant.

[11] All figures are inclusive of disbursements and HST.

J. MacFarland J.A. C.W. Hourigan J.A. G. Pardu J.A.