Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240506 DOCKET: COA-22-CV-0319

Tulloch C.J.O, Hourigan and Dawe JJ.A.

BETWEEN

Robert Mark Roe Applicant (Appellant/Moving Party/Responding Party by way of cross-motion)

and

Randall Scott Roe* and Raymond Christopher Roe**, in their capacity as Estate Trustees of the Estate of Beverly Grace Roe, Deceased, and Randall Scott Roe in his capacity as Estate Trustee of the Estate of Richard Thomas Roe, Deceased, and in his personal capacity Respondent (Respondent*/Responding Party*/Moving Party by way of cross-motion*/ Respondent**/Responding Party**/Responding Party by way of cross-motion**)

AND

BETWEEN:

Robert Mark Roe Plaintiff (Appellant/Moving Party/Responding Party by way of cross-motion)

and

Raymond Christopher Roe**, in his capacity as Estate Trustee of the Estate of Beverly Grace Roe, Deceased, and in his personal capacity and Randall Scott Roe* in his capacity as the Estate Trustee of the Estate of Beverly Grace Roe, Deceased, the Estate Trustee of Richard Thomas Roe, Deceased, and in his personal capacity Defendants (Respondent*/Responding Party*/Moving Party by way of cross-motion*/ Respondent**/Responding Party**/Responding Party by way of cross-motion**)

Counsel: Brendan Donavan and Noah Kochman, for the moving party/responding party by way of cross-motion, Robert Mark Roe Nikhil Mukherjee and Andrew Rogerson, for the respondent/moving party by way of cross-motion, Randall Scott Roe David N. Delagran, for the responding party/responding party by way of cross motion, Raymond Christopher Roe

Heard: In writing

On appeal from the costs order of Justice Sugunasiri of the Superior Court of Justice, dated January 5, 2024.

Reasons for Decision

[1] On March 11, 2024, this panel released its Reasons for Decision, dismissing the appeal of Robert Mark Roe (“Mark”). He had appealed the decision of the application judge, which dismissed his challenge of the last Will and Testament of his mother Beverly Grace Roe (“Beverly”). In her will, Beverly named three of her four sons as beneficiaries – Richard Thomas Roe, Randall Scott Roe (“Randy”), and Raymond Christopher Roe (“Chris”).

[2] In our Reasons for Decision, we noted that Mark sought leave to appeal the costs award below and Randy also brought a cross-motion for leave to appeal that order. We directed that if the parties intended to proceed with the motion or cross-motion to seek leave to appeal, they must serve and file their materials by a specific date and we would deal with the motion and cross-motion for leave to appeal the costs order in writing.

[3] In response to our direction, the court received materials from Randy on his cross-motion for leave to appeal that included a factum, reply factum, motion record, reply motion record and authorities. From Mark, the court received a factum and compendium on the cross-motion (as a respondent). From Chris, the court received a factum and motion record on the cross-motion (also as a respondent). No materials were filed by Mark on his motion for leave to appeal the costs order.

[4] Randy seeks leave to appeal the costs order on two grounds: (1) Mark should pay the costs of and occasioned by the appointment of the Estate Trustee During Litigation (“ETDL”), and (2) Chris should not have his costs paid out of the Estate and, in the alternative, if the Estate is liable for those costs then Mark should indemnify the Estate. Essentially, he argues that the application judge erred in determining that the fees associated with the ETDL were not matters relating to the action. Further, he submits that costs incurred by Chris, who eventually settled with Mark, should not have come out of the estate on the basis they did not benefit the estate and the litigation was not necessary for the estate’s administration.

[5] As noted by this court in Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., 2024 ONCA 25 at para. 13:

Leave to appeal a costs order will not be granted except in obvious cases where the party seeking leave convinces the court there are “strong grounds upon which the appellate court could find that the judge erred in exercising his discretion”: Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.), at para. 21, leave to appeal refused, [2007] S.C.C.A. No. 92. This test is designed to impose a high threshold because appellate courts recognize that fixing costs is highly discretionary and that trial and motion judges are best positioned to understand the dynamics of a case and to render a costs decision that is just and reflective of what actually happened on the ground: Algra v. Comrie Estate, 2023 ONCA 811, at para. 48.

[6] We are not satisfied that the application judge erred in her costs award. It is evident from her reasons that she undertook a holistic review of the litigation and the conduct of the parties in fashioning a costs order. Among other things, she determined that: there was no basis for elevated costs against Mark; Chris should be rewarded for his more conciliatory approach to the litigation; Mark should receive some discount because he raised a bona fide issue that was worthy of court scrutiny; and Randy acted pursuant to his own self-interest, rather than the interests of the estate. These findings were well rooted in the evidence and support her highly discretionary costs award. There is no basis for appellant interference with the application judge’s costs order.

[7] Randy’s cross-motion for leave to appeal the costs award is dismissed. Mark’s motion for leave to appeal the costs award is dismissed as abandoned. No costs are awarded on the motion or cross-motion.

“M. Tulloch C.J.O.” “C.W. Hourigan J.A.” “J. Dawe J.A.”