Ontario Superior Court of Justice

Court File No.: 2008/1015
Date: 2012-06-15

ONTARIO
SUPERIOR COURT OF JUSTICE

IN THE ESTATE OF INA BERYL LOGAN, DECEASED,
OF THE TOWNSHIP OF MCNAB/BRAESIDE,
IN THE COUNTY OF RENFREW.

BETWEEN:

CLAUDE BARR APPLICANT – and – HARRY BARR RESPONDENT

Peter Sengbush, for the Applicant

Scott Murray, for the Respondent

HEARD: In writing.

COSTS DECISION

T.D. RAY, J

[ 1 ] The 3 day trial of the issues in this case were decided in favour of the respondent, May 28, 2012. ( 2012 ONSC 3088 ), such that the applicant’s claim to an interest in the estate was dismissed. I invited costs submissions.

[ 2 ] The respondent’s position is that he should be entitled to his costs which he proposes in the amount of $25,861.73. While his calculation is based on a full indemnity award of costs, his written submissions are that costs should be awarded on a partial indemnity scale. While no copies of written offers were part of his submissions, he says that he initially made an offer to pay the applicant $1,000 but the offer was not accepted by the applicant and was withdrawn. He says a second offer was made to consent to a dismissal of the application without costs, and was not taken up by the application. Neither offers are represented as written offers so as to trigger the costs provisions of rule 49.

[ 3 ] The applicant’s position is that while his challenge to the will was unsuccessful, it was reasonable and therefore he should not have to pay costs. He proposes that the costs be paid out of the estate. While that may be attractive to the applicant, in reality, since the respondent is the sole beneficiary, it means the applicant wants the respondent to pay the applicant’s costs. While that may be the proper order in a case where the conduct of one of the parties has been behind ‘suspicious circumstances’ - that was not the case here. There was absolutely no evidence or even a hint in argument as to the respondent’s conduct being anything but above reproach. The respondent did nothing to invite these court proceedings.

[ 4 ] In point of fact I found little evidence to support suspicious circumstances.

[ 5 ] I am satisfied that the respondent is entitled to his costs, as the successful party, but on a partial indemnity basis. I consider partial indemnity to be approximately 55% of full indemnity. Using that calculation, the respondent’s costs would be fixed at $12,435.51 plus disbursements. I note the applicant’s costs outline sets out his costs at approximately $30,000 on a full indemnity basis. On a partial indemnity scale the applicant’s costs would be $16,500.00. The applicant has not commented on the quantum of the respondent’s costs with good reason. They are lower than he expected.

[ 6 ] Having regard to all of the factors listed in rule 57, including evidence of an attempt by the respondent to settle the claim, I fix the respondent’s costs inclusive of disbursements and HST at $11,000.00 payable by the applicant. I am not prepared to order that the costs be paid out of the estate.

Honourable Justice Timothy Ray

Released: June 15, 2012

COURT FILE NO.: 2008/1015

DATE: 2012-06-15

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: CLAUDE BARR APPLICANT – and – HARRY BARR RESPONDENT costs decision Honourable Justice Timothy Ray

Released: June 15, 2012