NEWMARKET COURT FILE NO.: CV-09-095188-00

DATE: 20120103

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: IN THE MATTER OF ESTATE OF JOHN KWOK KEUNG CHAN, Deceased

ROBERT GOLD as former Estate Trustee, Applicant

AND:

LAI FAN WU as current Estate Trustee, Chiu Wah Carmen Chan, Dora Hoi Yan Chan, Beneficiaries and Brian Belmont, Respondents

BEFORE: MULLIGAN J.

COUNSEL:
A. S. Graham, for Robert Gold as former Estate Trustee

Lai Fan Wu and Dora Hoi Yan Chan on their own behalf

HEARD: by written submissions

COSTS ENDORSEMENT

[ 1 ] This application for passing of accounts proceeded by way of a six day hearing. In my reasons for decision dated June 6 th , 2011, I indicated that the Applicant had achieved a substantial measure of success against the Estate and invited the parties to reach an agreement with respect to costs. No agreement was reached and I have now received costs submissions from counsel for the Applicant. In spite of a further invitation from the Respondents to make responding submissions, no such submissions have been received.

BACKGROUND

[ 2 ] As I indicated in my reasons, this Estate has been subject to ongoing litigation almost since the date of death of the deceased John Kwok Keung Chan. On April 13 th , 2010 Justice Lauwers made an Order giving directions with respect to the passing of accounts of Mr. Gold, former Estate Trustee. The Order required the trial of eight issues. The Respondents Lai Fan Wu, current Estate Trustee and Chiu Wah Carmen Chan and Dora Hoi Yan Chan beneficiaries were self-represented throughout this hearing.

POSITION OF THE APPLICANTS

[ 3 ] The Applicant seeks costs on the partial indemnity basis of $82,915.14 as follows:

Fees $68,344.10
HST $ 8,884.73
Disbursements $ 5,686.31

Total Fees and Disbursements $82,915.14

[ 4 ] In his submissions the Applicant Robert Gold makes reference to the factors that a court are to consider pursuant to Rule 57(01). Two factors merit comment.

THE IMPORTANCE OF THE ISSUES

[ 5 ] I agree with the Applicant’s submission on this point as the Applicant stated in written submissions:

The passing of accounts hearing involved allegations of criminal and quasi criminal conduct by Robert Gold (fraud, breach of trust). Robert Gold is a chartered accountant “named partner” in Bennett Gold LLP, so the allegations were of utmost professional importance to him and the employees of Bennett Gold, LLP generally.

CONDUCT OF ANY PARTY THAT INTENDED TO LENGTHEN OR SHORTEN UNNECESSARILY THE DURATION OF THE PROCEEDING

[ 6 ] I agree with the Applicant’s written submissions on this point:

The objectors had filed lengthy, disorganized and repetitive and unclear affidavits and failed to co-operate with Robert Gold’s good faith attempts to streamline their objections. This resulted in unnecessarily more complex and lengthy proceeding than would have merited strictly on the basis of the accounts. Also, the objectors raised additional objections.

ANALYSIS

[ 7 ] In addition to the factors set out in Rule 57.01 of the Rules of Civil Procedure I have also considered the issue of reasonableness, see: Boucher vs. Public Accountant’s Council for the Province of Ontario , 2004 14579 (ON CA) , [2004] O.J. No. 2634 at para. 6 and Clarington (Municipality) vs. Blue Circle Canada Inc., 2009 ONCA 722 , [2009] O.J. No. 4236 at para. 52 . Having reviewed the Bill of Costs in the context of the factors in Rule 57.01, I am satisfied that the Applicant’s claim for partial indemnity costs of $82,915.14 for fees, disbursements and HST against the Estate of John Kwok Keung Chan is fair and reasonable under the circumstances.

[ 8 ] As the Respondents were self-represented and did not file costs submissions their approval as to form and content of any order based on this judgment is waived.

MULLIGAN, J.

Date: January 3, 2012