Court File and Parties

Court of Appeal for Ontario Date: 2021-07-22 Docket: C67599

Between: Brenda Bayford Plaintiff (Respondent)

And: Brian Boese, Kaitlyn Boese, Alexander Boese, Erin McTeer and Michelle McTeer Defendants (Appellant)

Before: Doherty, Nordheimer and Harvison Young JJ.A.

Counsel: Earl A. Cherniak, Q.C., Ian M. Hull and Doreen Lok Yin So, for the appellant Taayo Simmonds, for the respondent

Heard: In writing

On appeal from the judgment of Justice Sylvia Corthorn of the Superior Court of Justice, dated October 1, 2019.

Costs Endorsement

[1] On June 22, 2021, we released our decision in which we allowed the appeal in this matter and dismissed the respondent’s action. We invited written submissions regarding the costs of the appeal. The parties have agreed that the appellant should have his costs of the proceeding below and that those costs should be referred to the trial judge for assessment.

[2] We have now received and reviewed the written submissions of the parties. The appellant seeks his costs of the appeal on a full indemnity basis in the amount of $113,500. He also seeks an order that, to the extent that the respondent is unable to satisfy the order for payment of costs of the trial and appeal, the appellant be entitled to recover the balance of the costs assessed from the Estate of Brian Boese.

[3] The basis for the appellant’s request for costs on a full indemnity basis arises from the fact that the case put forward by the respondent at trial, and accepted by the trial judge, was that the Will in question, signed by the testator, was purportedly witnessed by two individuals. As found by this court, that was not the true state of affairs. In fact, the two individuals had signed as witnesses after the testator had passed away. The appellant says, in essence, that the respondent attempted to perpetrate a fraud upon the court.

[4] We accept that a finding of fraud, or attempted fraud, may justify an award of costs on an elevated scale. Such a finding would be subsumed in the principle that costs on a substantial indemnity basis may be awarded "where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties": Young v. Young, [1993] 4 S.C.R. 3, at p. 134; Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, 140 O.R. (3d) 81, at para. 43.

[5] On that point, however, we would reiterate the note of caution expressed in Net Connect Installation Inc. v. Mobile Zone Inc., 2017 ONCA 766, 140 O.R. (3d) 77, at para. 8, that there is a significant and important distinction between full indemnity costs and substantial indemnity costs. This court added:

Substantial indemnity costs is the elevated scale of costs normally resorted to when the court wishes to express its disapproval of the conduct of a party to the litigation. It follows that conduct worthy of sanction would have to be especially egregious to justify the highest scale of full indemnity costs.

[6] This principle, though, will normally apply to the trial proceedings, not to the appeal proceedings. There was no conduct by either party on the appeal that would fall within the above principle. Any finding regarding the conduct of the respondent, and its proper effect on costs, is thus a matter for the trial judge to consider when she assesses the costs of the proceedings below.

[7] That said, there is nonetheless an impact on the appeal proceedings from the nature of the evidence and the findings of the trial judge. Because the trial judge accepted the version of events advanced by the respondent, the appellant’s task on appeal was an onerous one. He was required to establish that the trial judge had made palpable and overriding errors of fact, including accepting the respondent’s, and the attesting witnesses’, evidence. The significant task facing the appellant is a factor to consider in determining a reasonable amount for the costs of the appeal.

[8] We also accept that, to the extent that the costs of the appeal, or of the trial, may not be satisfied by the respondent, the appellant ought to be able to recover those costs from the Estate. This litigation was, at least in part, caused by the testator’s failure to complete his intended new Will as directed by his lawyer. Assuming that the testator intended to proceed as outlined in the new Will, his failure to have that Will fully and properly executed led to this litigation. The “blended costs award”, in which a portion of costs is payable by the losing party and the balance is payable out of the estate, is applicable in this case: Sawdon Estate v. Watch Tower Bible and Tract Society of Canada, 2014 ONCA 101, 119 O.R. (3d) 81, at para. 99. This is also a fair result since the actions of the appellant have benefitted the other beneficiaries of the Estate of Bruce Boese.

[9] In the result, we award the appellant the costs of the appeal fixed at $50,000, inclusive of disbursements and HST. The appellant is also awarded his costs of the trial. Those costs are referred to the trial judge for assessment. To the extent that the costs of the appeal, or of the trial, are not satisfied by the respondent, the appellant may recover those costs from the Estate of Bruce Boese.

“Doherty J.A.”

“I.V.B. Nordheimer J.A.”

“A. Harvison Young J.A.”