Court File and Parties

Court File No.: 154/08

Date: 2008/11/24

Superior Court of Justice - Ontario

(Divisional Court)

Re: Jacob Wesley Eade et al. v. The Estate of Ellen Browne, Deceased, Linda Browne, and Ruth Ina Piccitto, Estate Trustee of the Estate of John Piccitto, Deceased

Before: Justice D. Bellamy

Counsel: Stephen E. Sloan, for the Plaintiffs/Moving Parties Robert M. Ben, for the Defendants/Responding Parties Browne Nicole C. Culp for the Defendants/Responding Parties Piccitto

Heard at Toronto: November 19, 2008

Endorsement

Bellamy, J.

[1] The plaintiffs bring a motion for leave to appeal the Order of Master Ronald Dash, dated March 25, 2008, on the issue of costs only. Leave to appeal is granted and the appeal is granted.

[2] The court should grant leave to appeal an award of costs sparingly and only in very obvious cases. This is that type of case.

[3] There are strong grounds upon which to find that the learned Master erred in exercising his discretion with respect to costs against the plaintiffs in this matter. The decision of Stinson, J. in Wicken (Litigation Guardian of) v. Harssar (2002), 24 C.P.C. (5th) 164 (Ont.S.C.J.), affirmed [2003] WL 4262 (Ont.S.C.J. Div.Ct.) does not appear to have been brought to the Master’s attention. The facts of that case are virtually identical to this, and should have guided the Master’s exercise of his discretion.

[4] Costs in the amount of $2500 inclusive of disbursements and GST payable to the plaintiffs by the defendants Browne.

Bellamy, J.

Date: November 24, 2008