Court File and Parties
CITATION: White v. White Estate, 2020 ONSC 6270 DIVISIONAL COURT FILE NO.: 19-60 DATE: 2020-10-19
SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT
RE: Debbie White, in her capacity as a Residual Beneficiary, Appellant AND: Ray Lorne White and Peggy McIntosh, in their capacity as Executors and Trustees of the estate of MARIA WHITE, Deceased, Respondents
BEFORE: Lederer, Penny and Favreau JJ.
COUNSEL: Debbie White, representing herself Jarvis Postnikoff, for the Respondents
HEARD at Toronto by videoconference: October 2, 2020
Endorsement
Favreau J.
[1] The appellant appeals an order made by Carpenter-Gunn J. on October 17, 2020, approving releases proposed by the respondents and awarding costs of $3,500 to the respondents.
[2] At the conclusion of the appellant’s submissions, the panel dismissed the appeal with reasons to follows. These are the reasons.
Background
[3] The parties are siblings. The respondents are the executors and trustees of their mother’s estate. The appellant is one of the beneficiaries of the estate.
[4] The respondents originally brought an application for a passing of accounts of the estate. At the same time, the appellant brought an application seeking various relief in relation to the distribution of the estate. The proceedings were consolidated.
[5] On the eve of examinations for discovery, the parties reached a settlement agreement. At the time the settlement was reached, the appellant was represented by counsel. The terms of the settlement are reflected in a letter dated August 18, 2019 prepared by the appellant’s lawyer. The settlement provides that that the appellant is to receive $68,000 from the cash assets of the estate and that she is to receive a number of personal items that previously belonged to her mother. The settlement also requires the appellant and the respondents to sign releases as set out in the following paragraphs of the agreement:
Debbie shall sign a full and final release of the estate trustee and the attorneys for property of Maria White, and the beneficiaries of the Estate of Maria White to the extent that they are the residual beneficiaries of the Estate of Maria White and recipients of assets identified in the Accounting (defined at item 5 above) and the undated list titled Maria’s Household Belongings (which appears at item 481 of the Affidavit of Documents of Peggy McIntosh, sworn July 16, 2019).
The estate trustees shall sign a full and final release of Debbie.
[6] After the parties agreed to the terms on which the estate was to be distributed, they could not agree on the terms of the releases. Counsel for the respondents wrote to counsel for the appellant enclosing two draft proposed releases. However, counsel for the appellant did not respond and counsel for the respondents scheduled the motion to settle the terms of the releases. After the motion was scheduled, counsel for the appellant responded with proposed minutes of settlement and a draft mutual release.
[7] The motion proceeded on October 17, 2019. In oral reasons delivered on the day of the motion, the motion judge approved the form of releases proposed by the respondents, with two changes requested by the appellant’s counsel. The first change was to make clear that the release applied to the issue of costs. The second change was to make clear that the appellant does not release the respondents from any issues arising from enforcement of the settlement. The motion judge also awarded costs to the respondents in the amount of $3,500 after counsel for the parties advised that they had agreed to this amount.
Standard of review
[8] The standard of review on questions of law is correctness. With respect to errors of fact or errors of mixed fact and law, the Court will not interfere unless the motion judge made a palpable and overriding error.
The motion judge did not err in approving the forms of release proposed by the respondents
[9] The motion judge made no errors of law and no palpable and overriding errors of fact or mixed fact and law in approving the forms of release proposed by the respondents.
[10] The motion judge considered the correct legal principles, which she described as follows:
The responding party took the court to an older decision of the then General Division Court from Chapnik, J., heard 1995, to paragraph 24 where it says:
“It is well established that settlement implies a promise to furnish a release unless there is agreement to the contrary. On the other hand, no party is bound to execute a complex or unusual release: although implicit in the settlement, the terms of the release must reflect the agreement reached by the parties. This principle accords with common sense and normal business practice.”
[11] The motion judge then went on to review the form of release proposed by the moving party, and made a finding that, while it was longer than the release proposed by the appellant, it contained standard terms and that it was “not complicated”. She addressed some of the concerns expressed by the appellant’s counsel, and ordered that the release be modified to make clear that the release covered issues of costs and that the appellant was not releasing her right to sue on the settlement.
[12] The appellant essentially makes two arguments in support of her appeal.
[13] First, she argues that there were many facts and circumstances not presented to the motion judge that should have led her to conclude that the settlement and releases were not appropriate. This is not a proper ground of appeal. The only issue before the motion judge was the form of release to be signed by the parties. The appellant’s counsel did not take issue with the settlement itself, and the issues raised by the appellant’s counsel about the release on the motion were very narrow. The appellant cannot attack the settlement or raise new issues regarding the releases on appeal.
[14] Second, the appellant argues that the release approved by the motion judge is inconsistent with the settlement agreement. This was not an issue raised on the motion. The issues raised by the appellant’s counsel were limited to an argument that the respondents’ proposed releases were overly complicated and that they did not address the issue of costs.
[15] In any event, when pressed during the argument before this Court, the appellant was not able to identify any actual inconsistencies between the settlement agreement and the form of release approved by the motion judge. She said that being required to release the respondents in their capacity as attorneys for property of Maria White was inconsistent with the settlement, but this is explicitly provided for in the agreement. She also said that the agreement does contemplate that the respondents will have to pass accounts while the release relieves them from doing so. However, it is implicit in the settlement agreement, which is meant to settle all matters at issue in the litigation, that the respondents will not be liable to the appellant for anything further involving the estate, including the passing of accounts.
[16] In making an order approving the form of the release with the modifications referred to above, the motion judge did not make any legal errors or any palpable and overriding errors of fact or mixed fact and law. On the contrary, she approached the issue from a principled and practical perspective.
There is no basis for granting leave on the issue of costs
[17] The appellant requires leave of the court in order to appeal the motion judge’s costs order. For leave to be granted, the appellant must show that the motion judge “acted on a wrong principle, or misapprehended significant facts or made the determination in a non-judicial manner”: Ramsahai-Whing v. Weenen, 2017 ONSC 1091 (Div. Ct.), para. 8.
[18] In this case, the motion judge awarded $3,500 to the respondents on the basis of representations by counsel for the appellant that this was an amount agreed to between the parties. I have reviewed the transcript and this was in fact the submission made by the appellant’s own counsel.
[19] The appellant has not identified any error in principle in the costs award. The amount awarded is reasonable. In any event, the Court would only interfere in exceptional circumstances with an order made on consent. While the appellant may claim that she did not agree to pay $3,500 in costs, this is not what the record reflects or an issue for this Court can resolve.
Costs of the appeal
[20] At the conclusion of the hearing, we asked the parties to address the issue of costs.
[21] Counsel for the respondents submitted a costs outline in which his clients seek over $30,000 for the costs of the appeal on a full indemnity basis. In seeking payment on a full indemnity basis, the respondents rely on cases that permit a court to award costs on a full indemnity basis in the context of estate litigation to ensure that the estate is not unduly depleted by meritless litigation. The respondents’ counsel argues that, in this case, the appeal was without merit and the appellant complicated the appeal through various steps.
[22] While the Court has the discretion to order costs on a full indemnity basis in the context of estate litigation, the prevailing principle underlying an award of costs is that costs must be reasonable having regard to all the circumstances.
[23] While the appellant may have taken some steps that increased the respondents’ costs, the amount sought by the respondents is completely disproportionate to the issues on the appeal and the amounts at issue. The issues raised by this appeal are not complex. In addition, the amount sought by the respondents is almost 50% of the appellant’s cash payment out of the estate.
[24] Normally, costs awarded on an appeal are less than the costs awarded in the proceedings below. In this case, the Court is prepared to accept that the appeal was made somewhat more complex than the motion by the appellant’s initial request for an adjournment and by some of the steps in the appeal. An award of $5,000 is reasonable in all of the circumstances. As with the costs of the motion, this amount can be deducted from the payment to be made to the appellant out of the estate.
Conclusion
[25] For the reasons above, the Court makes the following order:
a. the appeal is dismissed;
b. the appellant is to pay costs to the respondents in the amount of $5,000; and
c. the respondents are permitted to deduct the $5,000 in costs from the payment to be made to the appellant out of the estate.
[26] The order from this appeal can be taken out without the appellant’s approval as to form.
Favreau J.
I agree _______________________________
Lederer J.
I agree _______________________________
Penny J.
Date: October 19, 2020