Court File and Parties

Court File No.: 01-2660/98
Date: 20120305
Superior Court of Justice – Ontario

In the Estate of Maria Marziliano, deceased

Re: AMANDA BIANCA NICOLA MARZILIANO VAN DYKE, as Co-estate Trustee of the Estate of Maria Marziliano, Applicant

And:
RAFFI EBREKDJIAN, also known as RAFFI EBREKDIJAN, RAFFI EBREKDGAIAN, JAMES R. EBREKDGAIAN, RALPH EBREKDGAIAN, RAFFI ABRAKJIAN, JAMES R. ABRAKJIAN AND RALPH ABRAKJIAN, as Co-estate Trustee of The Estate of Maria Marziliano , ANITA GIONALEA MARZILiANO-BARKER and GARNET KRIKOR NICHOLAS MARZILIANO , Respondents

Application under sections 5 and 37 of the Trustee Act , R.S.O. 1990, c.T.23, as amended and rule 75.06 of the Rules of Civil Procedure

Before: Stinson J.

Counsel:
Justin W. de Vries , for the estate trustee during litigation
Carolyn Love , for the Amanda Van Dyke
Garnet Marziliano, in person
Anita Marziliano-Barker, in person
William Andreou , for Raffi Ebrekdijan
No one for G. Papas
Nicolas Nasr, in person

Heard: September 6, and 15, 2011, and by subsequent written submissions

ENDORSEMENT AS TO COSTS

[ 1 ] In my ruling and order dated September 15, 2011, I approved the sale of the estate property located at 126 Mount Pleasant Road. I also approved the Bill of Costs of the Estate Trustee During Litigation ("ETDL") for $56,296.18. I directed that any other costs request be dealt with by me in writing.

[ 2 ] Two parties represented on the motion have now submitted Bills of Costs. They are Amanda Van Dyke, represented by Carolyn Love, and Raffi Ebrekdijan, represented by V. William Andreou. No other parties submitted requests for costs. I also received a written submission from the ETDL, regarding the costs requests from Amanda Van Dyke and Raffi Ebrekdijan.

costs claim of Amanda Van Dyke

[ 3 ] Ms. Van Dyke seeks costs of $9,266 inclusive of disbursements and HST, representing her full indemnity costs, payable out of the estate. She is a beneficiary of the estate, and a former co-trustee of the estate who cooperated in and supported the efforts of the ETDL in relation to the sale and sale approval process. Her costs claim is supported by the ETDL.

[ 4 ] As was stated in McDougald Estate v. Gooderham , 2005 21091 (ON CA) , [2005] O.J. No. 2432 at para. 85 (C.A.):

Gone are the days when the costs of all parties are so routinely ordered payable out of the estate that people perceive there is nothing to be lost in pursuing estate litigation.

I am therefore alert to the principle that an award of costs payable by an estate in favour of a beneficiary who participates in estate litigation should not be the ordinary course to follow. That said, I have concluded that this is a situation in which an order for Ms. Van Dyke's costs to be paid out of the estate is appropriate.

[ 5 ] This estate has been beset by internal conflicts among the beneficiaries. With the appointment of the ETDL, progress is being made at last. In relation to the sale of this significant estate asset, counsel for Ms. Van Dyke presented arguments from the perspective of a beneficiary in support of the proposed sale. In the final analysis, as noted in my ruling dated September 15, 2011, the sale that was approved benefited all beneficiaries. In my view, Ms. Van Dyke's representation on the motion was both appropriate and helpful to the due administration of the estate.

[ 6 ] Additionally, part of the relief sought on the motion was production of estate documents by the former co-trustee of the estate, Raffi Ebrekdijan. Ms. Van Dyke had made reasonable efforts to obtain the estate documents from Mr. Ebrekdijan and the estate accountant, Mr. Papas, without success. Ultimately, the relief sought on the motion to compel production of the estate documents was necessary and Ms. Van Dyke's counsel was able to address the court directly on this issue. In this respect, her counsel represented not only her interest as a beneficiary but also as a former estate trustee.

[ 7 ] Turning to the subject of the scale of costs, Ms. Van Dyke seeks full indemnity costs. Once again, she is supported in her request by the ETDL. I agree that full indemnity costs are appropriate in this case for Ms. Van Dyke. Certainly as regards the issue of production of documents, her involvement was necessitated by the failure of others to discharge their obligations, and in the pursuit of the discharge of her own obligations as an estate trustee. As regards her involvement in the sale approval process, the court found it helpful to have the position of a beneficiary of the estate articulated by counsel. Ms. Van Dyke was entitled to be represented and given the controversies that have accompanied so many aspects of this estate and its administration, it was reasonable for her to proceed as she did. In all of circumstances, I believe it would be unfair to force Ms. Van Dyke to absorb her own legal costs, provided that they are reasonable.

[ 8 ] In relation to quantum, I agree with the comments made by the ETDL in his written submissions regarding costs, in reference to the enumerated factors in rule 57.01:

(1) 57.01(1) – result – Ms. Van Dyke's position on the motion was successful.

(2) 57.01(0.a) – indemnity – as I have already noted, Ms. Van Dyke should be indemnified by the estate for work done by her counsel that ultimately benefited the estate and she should not be out of pocket.

(3) 57.01(a) – amount claimed or recovered – the $1.2 million sale of 126 Mount Pleasant Road represented a significant asset of the estate and a large premium over the next highest bid. Her claim for costs must be evaluated in this light.

(4) 57.01(d) – importance – the estate documents are necessary to prepare a full accounting and thus that aspect of the motion was of significant importance. The sale of this major estate asset was also important to both Ms. Van Dyke and the estate as a whole.

(5) 57.01(c) – complexity – in the ordinary course, a motion to approve the sale of an estate asset is a relative straight forward matter. In this case, however, both the history of the estate and its dealing with this property as well as the unfolding series of offers, made this motion more complex than the ordinary period.

(6) 57.01(e) – conduct of the party – Ms. Van Dyke cooperated throughout and thus the process was as efficient as possible.

[ 9 ] Having reviewed the itemized bill of costs submitted by Ms. Van Dyke, I conclude that the time expended by her counsel was reasonable and appropriate, having regard to the foregoing considerations. I therefore award her full indemnity costs in the amount of $9,366 inclusive of disbursements and HST, payable by the estate, forthwith.

Claim for costs of RAFFI EBREKDIJAN

[ 10 ] Unlike Ms. Van Dyke, Mr. Ebrekdijan is not a beneficiary. He is, however, a former estate trustee. He was also a sometime occupant of house at 126 Mount Pleasant Road.

[ 11 ] I note that the ETDL opposes any award of costs in favour of Mr. Ebrekdijan.

[ 12 ] As regards the relief sought on the motion to compel Mr. Ebrekdijan and Mr. Papas (the estate accountant) to produce estate documents, that relief was granted. Had the documents been properly turned over, this aspect of the motion would have been unnecessary. Certainly, as regards, Mr. Ebrekdijan, this relief did not favour him and I see no basis to award him costs relating to this aspect of the motion.

[ 13 ] In relation to the sale of the property, it emerged that Mr. Ebrekdijan was living full time at 126 Mount Pleasant, yet he never communicated this fact directly to the ETDL. As a matter of precaution, the ETDL was compelled to seek a court order for vacant possession.

[ 14 ] To a large extent, the involvement of a lawyer on behalf of Mr. Ebrekdijan was a product of his own lack of cooperation. As a former estate trustee, he should have made the documents available without need for a further court order. As a tenant in the premises, he should have so self-identified and should have cooperated in giving up vacant possession. That he ultimately agreed to do so before being ordered to, is not a valid reason for awarding him his costs.

[ 15 ] I therefore conclude that no costs should be recoverable by Mr. Ebrekdijan and that he should bear his own expenses in legal representation in relation to the proceedings that resulted in the appearances in court on September 6 and 15, 2011.

Stinson J.

Date: March 5, 2012