ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: CV-2008-94
Date: 20120703

B E T W E E N:

DAVID J. BORNE and LYNN ROCK (née BORNE)

Mr. G. Evans, for the Applicants

Applicants

• and -

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

Mr. D. Wyjad, for the Respondents

Respondents

Heard: May 4, 2012

D E C I S I O N O N C O S T S O F 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 of the Application. 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 ] 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.

[ 4 ] In the circumstances, I found that the Respondent, being the successful party, should have her costs for the Application, 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. The Applicants were awarded a net of $3,179 plus HST and disbursements of $776.81.

[ 5 ] I then invited submissions regarding the costs of that motion. Both parties filed these, which I have reviewed. I have also reviewed the Courts of Justice Act s. 131 and Rule 57 regarding costs.

[ 6 ] The starting presumption is that the Respondent, being successful on the motion, is entitled to costs.

[ 7 ] I note, however, that the substantive items were resolved on consent. Only the costs of the Application remained to be adjudicated on that motion.

[ 8 ] I also note that the Applicant’s offer to settle the case included a provision for the Applicant to pay, in effect, $2,500 of costs to the Respondent. In other words, although successful on the motion, the Respondent did not receive an order for costs of the Application much in excess of that which was offered.

[ 9 ] Taking this into account, there was little need to argue the motion, and the costs claimed for the motion, being $2,412, seem out of proportion to those awarded for the entire action.

[ 10 ] Therefore, I order that the Respondent pay the Applicant costs of the motion in the amount of $1,500 within 30 days.

Justice J. A. S. Wilcox

Released: July 3, 2012