ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-2008-94
DATE: 20120523

B E T W E E N:

DAVID J. BORNE LYNN ROCK (née BORNE)

Mr. G. Evans, for the Applicants

Applicants

• and -

Mr. D. Wyjad, for the Respondents

ESTATE OF DONALD JAMES BORNE and ROSEANNE C. BORNE PERSONALLY AND IN HER CAPACITY AS ESTATE TRUSTEE

Respondents

HEARD: May 4, 2012

D E C I S I O N O N M O T I O N

WILCOX, J.

[ 1 ] The Respondents’ Notice of Motion for various items of relief was heard on May 4, 2012. Mr. D. Wyjad acted for the Respondents. Mr. G. Evans acted for the Applicants. Counsel at the outset indicated that certain items of relief were agreed upon and that others were no longer necessary in the circumstances. The dispute was over costs. The Respondents wanted their costs of the proceedings on a full indemnity basis. They withdrew their claim for punitive or exemplary costs.

[ 2 ] Donald James Borne died testate on April 1, 2007. His will named his wife, Roseanne C. Borne, a Respondent herein, as his executrix. A Notice of Objection dated May 2, 2007 was filed prior to the filing of Roseanne C. Borne’s application for a Certificate of Appointment as Estate Trustee. The Notice of Objection was filed by David J. Borne and Lynn Rock, the Applicants herein, being the children of the deceased from a previous relationship. The Notice of Objection was based on grounds that Mr. Wyjad acknowledged could potentially have been valid.

[ 3 ] The Applicants then brought a Notice of Application dated September 17, 2008 for directions from the court. The Application resulted in the order of Poupore J. of October 27, 2008. In summary, it provided the following, among other things:

1- for the issuing of certificates of pending litigation against various properties

2- that the parties produce affidavits of documents and submit to cross-examinations

3- leave for examinations for discovery of various people who had dealings with the deceased

4 – that Roseanne C. Borne produce any testamentary documents in her control

5 – a stay of the distribution of the deceased’s assets until further order or agreement of the parties

6 – that Mr. Wyjad produce copies of certain documents to counsel for the Applicants

7 – leave to move for further directions.

All other matters were adjourned to December 12 th , 2008.

[ 4 ] On that date, O’Neill J. made a further order. Morgan and Partner Inc. was appointed estate trustee during litigation (ETDL) of the estate’s property, subject to the filing of the necessary Application for a Certificate of Appointment of ETDL. The order provided for the ETDL’s remuneration, limited to $6,000, but was silent regarding any retainer arrangements. The ETDL was empowered to gather information and produce it to the other parties and was ordered to report to the court upon completion. The Applicants’ costs of the motion (sic) were fixed at $1,000 to be paid by the estate when liquid assets were available. These have not been paid.

[ 5 ] It was not disputed that the Respondent had produced an Affidavit of Documents, but the Applicants never did. No cross-examinations nor discoveries took place. The ETDL was never engaged.

[ 6 ] It should be noted that there was not a lot of value in the estate. Counsel indicated that there was $125,000 worth of property and about $100,000 in joint investments that did not form part of the estate, being jointly held.

[ 7 ] The motion materials reveal a large amount of correspondence between counsel in this matter. In a letter dated June 2, 2009, the Respondents’ counsel provided four affidavits, two from the witnesses of the will and two from friends of the deceased, which went some distance in addressing the Applicants’ concerns. Whether or not that was the catalyst, the Applicants’ first Offer to Settle soon followed, seeking a settlement on terms, which terms were not acceptable to the Respondents.

[ 8 ] Numerous attempts were made by the Applicants to resolve the matter, but were rebuffed. Eventually, according to their counsel, a cost/benefit analysis led to his letter of June 23, 2010 to Mr. Wyjad confirming he had instructions from the Applicants to withdraw without costs, and the matter was essentially finished as of then. Subsequent proceedings were largely because of the Respondent’s insistence on getting her costs.

[ 9 ] Reviewing the correspondence in the matter is like observing two people trying to initiate a conversation at the same time when the other is not listening. Mr. Evans kept seeking a retainer for the ETDL so that the latter could commence work. Mr. Wyjad did not respond to that point, but kept asking what the ETDL’s bill was to date, what progress there had been, and for a report. Mr. Wyjad also kept asking Mr. Evans for an Affidavit of Documents and for productions. The Applicants never gave an Affidavit of Documents, but Mr. Evans did indicate at some point that there were no further productions.

[ 10 ] It appears that the Applicants became concerned about the cost/benefit analysis of the case within months of the orders and were trying to move it to conclusion without high costs, but that the Respondents were not responding. Engaging the ETDL was key to resolving the matter on its merits but, as noted above, the Respondents were not answering the Applicants’ queries regarding funding that, either. However, the opportunity existed for the parties, particularly the Applicants, to return to court to resolve the matter of the ETDL’s retainer. It was clear on the motion that the two counsel had different views on the ETDL’s role in and effect on the case, which could have been clarified, saving months of delay and the associated costs.

[ 11 ] In the circumstances, I find that the Respondent, being the successful party, should have her costs, but only up to June 23, 2010 when the Applicants offered to withdraw without costs. The bulk of the work done after that was related to the costs issue.

[ 12 ] I am not persuaded that this is a matter that justifies costs on a full indemnity basis.

[ 13 ] The Respondents’ cost outline is found at Tab I of the Amended Motion Record. It shows fees at a partial indemnity rate of $7,355.60, and $776.81 in disbursements. However, a more detailed breakdown is found at Tab l in the affidavit of David J. Borne, which contains a copy of Mr. Wyjad’s letter of April 17, 2012 to Mr. Evans, enclosing his time dockets, accounts summary and costs outline. The Summary of Accounts is particularly useful as it shows the totals of the seven accounts rendered to the Respondent by Mr. Wyjad. I accept counsel’s submissions that the first four of the accounts, up to and including the one of June 11, 2010, are to be used for the purposes of this matter. They total $8,358.13.

[ 14 ] Counsel disagreed on the proportion of the total that partial indemnity would be. Mr. Evans said one half. Mr. Wyhad said two thirds. In view of the Respondents’ failure to respond constructively to the Applicants’ counsel’s queries and suggestions which could have shortened the case or allowed it to be dealt with on its merits, I am exercising the discretion to use one half. The Applicants shall pay the Respondents’ costs of $4,179.

[ 15 ] The Applicants are owed $1,000 from O’Neill J.’s order, leaving a net owing to the Respondent of $3,179 plus HST and disbursements of $776.81.

[ 16 ] At the request of counsel, I invite them to submit one page each regarding costs of this motion. The Respondents’ counsel shall serve and file his within ten days of the date of this decision, and the Applicants’ counsel within five days after that.

[ 17 ] There shall also be an order to go for the relief requested in paragraphs 2, 3, and 4 of the Notice of Motion, on consent. The balance of the motion is dismissed.

Justice J. A. S. Wilcox

Released: 20120523