COURT FILE AND PARTIES

COURT FILE NO.: CV-11437021
and CV-11-420827

DATE: 20130306

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Bernard Burton

Applicant

– and –

William Assaf

Respondent

AND BETWEEN:

The Savarin Limited and William Assaf, Estate Trustee of the Estate of Edward Assaf, deceased, and William Assaf, a Beneficiary of the Estate of Edward Assaf, deceased

Plaintiffs

– and –

Mary Matthews, Bernard Burton, the
Estate of Robert Bosada, deceased,
and James Archer-Shee

Defendants

Archie Rabinowitz and Rebecca Studin, for the Applicant

William Assaf in person, together with Daniel Barna as his agent

William Assaf in person, together with Daniel Barna as agent for the Plaintiffs

Archie Rabinowitz, for Bernard Burton

Bernard Burton, for the Estate of Robert Bosada

Trevor B. Spurr, for Mary Matthews and James Archer-Shee

HEARD: February 6, 2013

Morgan J.

AMENDED REASONS FOR JUDGMENT

[1] The question raised herein is whether to bring to a close Ontario’s longest running legal drama.

I. The Two Proceedings

[2] These reasons for judgment address a motion brought by the Defendants to dismiss an action by The Savarin Limited and William Assaf in various capacities (Court File No. CV-11-420827, hereinafter the “Action”), and an application brought by one of the Defendants in the Action, Bernard Burton, to declare William Assaf a vexatious litigant (Court File No. CV-11437021, hereinafter the “Application”). The two are distinct proceedings, but they present overlapping facts and were heard together.

[3] The primary claim in the Action is for a declaration that the The Savarin Limited is the true owner of the property known municipally as 140 Dunvegan Road, Toronto (the “Property”). The Action also seeks orders transferring title and granting possession of the Property to The Savarin Limited. This is identical to the relief sought in a 1998 action styled as The Savarin Limited v. Robert Bosada, administrator of the last will and testament of Edward Assaf (deceased) (Court File No. 98-CV-1551105), which has been dismissed, and is strikingly similar to relief that William Assaf, together with his mother Vivian Assaf and related entities, have unsuccessfully sought in numerous other proceedings

[4] The Action also claims damages against a number of parties, notably Mary Matthews and James Archer-Shee (the current owners and occupiers of the Property), the Estate of Robert Bosada (William Assaf’s late uncle and the former executor of his father’s estate), and Bernard Burton (Robert Bosada’s lawyer). In addition to The Savarin Limited, the Plaintiffs in the Action are William Assaf in his various capacities. William Assaf is the son of the late Edward Assaf, whose estate has given rise to the complex series of legal actions at issue here.

II. The Deep Background

[5] The patriarch of the Assaf family, Edward Assaf, died in 1971. His spouse and children, and seemingly all who come into their orbit (including their estates after they pass away), have been at legal war ever since.

[6] In February 2009, Strathy J. issued reasons for judgment in Re Assaf Estate, 2009 11210 (ON SC), [2009] OJ No 1086, being the passing of accounts in the Estate of Edward Assaf. The judgment began by stating that, “[t]he Assaf estate has been the subject of more litigation than perhaps any other in Ontario history.” Strathy J. then commented, at para 10, that, “[a] truce having finally been declared, this passing of accounts may be the last battle.” The former observation, if it was correct in 2009, has only become more prescient in the ensuing years. The latter observation, of course, turns out not to have been correct at all.

[7] Edward Assaf was estranged from his wife, Vivian Assaf, when he died. His Will clearly favored his daughter, Barbara Laroq (née Assaf), who, along with her son, received the entire residue of the substantial estate. The Will left only small annual payments to Edward’s son William Assaf (the Respondent in the within Application) and to Vivian Assaf (and even this small amount was attributed by Strathy J. to advice Edward had received about avoiding a challenge under the Dependants’ Relief Act).

[8] According to Strathy J., supra, at para 10, William Assaf’s many battles have been “motivated by a belief that a terrible injustice had been done by his father to his mother, who he felt had been abused in life and cruelly treated in the will.” These attempts to right a perceived wrong started badly, when William Assaf attempted to probate a different will of Edward Assaf that he claimed to have “found” among his father’s possessions.

[9] The “found” Will was held to be a forgery. See Re Estate of Edward Assaf, [1976] OJ No 574 (Ont SC). William Assaf was convicted of uttering a forged document and was sentenced to four years in penitentiary, later reduced to two and one-half years. R v Assaf (1978), 1978 3910 (ON CA), 7 CR (3d) 267 (Ont CA).

[10] The long and painful history of the Assaf family litigation is so extensive that it would be counter-productive to attempt to trace it all. By way of illustration, there was a lengthy dispute over the sale of the Savarin Tavern, which was Edward Assaf’s primary business, culminating in William Assaf’s application to restrain its sale. The relief sought by William Assaf in this branch of the litigation over his father’s assets was described by Garrett J. as “entirely without merit, completely without merit and absolutely without merit.” Assaf v Koury, [1977] OJ No 917 (Ont SC). There have been previous claims by Vivian Assaf and William Assaf against the Defendants Mary Mathhews and James Archer-Shee, the purchasers of the Property who, doubtless to their lasting regret, stumbled into the Assaf family maelstrom. Those two Defendants were singled out by Dambrot J. as “so obviously innocent victims of this litigation who have absolutely nothing to do with the matters alleged by Ms. Assaf.” Assaf v Koury et al., Court File No. 04-CV-277622SR, endorsement of Dambrot J., Jan. 13, 2006, at para 3.

[11] In addition, there have been findings that William Assaf harassed his uncle and former executor of Edward Assaf’s estate, Robert Bosada (whose estate is a Defendant in the Action), and that in doing so he engaged in “egregious conduct of the worst kind”. Assaf v Assaf Estate (1998), 22 ETR (2d) 306 (Ont Gen Div). Along the same lines, William Assaf’s communications with Mr. Bosada’s lawyer, the Defendant Bernard Burton, have been described by Strathy J., supra, at para 147, as “vitriolic, abusive and vulgar.”

[12] In reviewing William Assaf’s sentence for forgery, R v Assaf, supra, at para 4, the Court of Appeal portrayed the situation with what can only be called admirable understatement: “[i]t is sufficient to say that within the appellant’s family there has been unusual and protracted incidents of friction…” In my view, that more than adequately describes the deep background of surrounding the within proceedings.

[13] What follows is a more specific, step-by-step account of the legal history relating to the Property itself. As will be seen, the history of claims made by William Assaf regarding the Property is repetitive to the point where the conclusion of any given procedure is never in doubt.

III. Claims to the Property

[14] In the most recently reported judgment, Assaf Estate v Bosada Estate, [2010] OJ No 5550, a panel of the Divisional Court dismissed an appeal by William Assaf of an order confirming a previous order that he had never appealed or moved to set aside. The court held, at para 2, that, “[i]t was not proper to bring another motion before another judge seeking the same relief.” That holding articulates in microcosm the entire history of William Assaf’s litigation with his family and other defendants, especially regarding the Property. The within Action is but the latest iteration of the principle expressed by the Divisional Court.

[15] The motion record filed by Mr. Rabinowitz appends numerous judgments and court orders dealing with the Property. The following is a chronological review of the salient orders:

(a) May 21, 1998 – Order of Greer J. giving Robert Bosada, as executor of the Estate of Edward Assaf, leave to possess, mortgage and sell the Property, and requiring Vivian Assaf and William Assaf (and his spouse and children) to vacate;

(b) June 19, 1998 – Order denying request by Vivian Assaf, represented by Mr. Barna (William Assaf’s counsel in the 1998 action about the Property and William Assaf’s agent herein) to stay order of Greer J.;

(c) June 22, 1998 – Further Order of Greer J. allowing Robert Bosada to have the realtor inspect the Property, authorizing Bosada as executor to deal with the sale of the Property, and repeating the previous Order that Vivian Assaf and William Assaf deliver up possession of the Property;

(d) October 7, 1998 – Declaration by Greer J. that The Savarin Limited has no interest in the Property (and cannot obtain a certificate of pending litigation). Sale of Property ordered to proceed and net proceeds to be paid into court to the credit of the Estate of Edward Assaf;

(e) October 15, 1998 – Doherty J.A. refuses request by Vivian Assaf and William Assaf for a stay of the Order of Greer J. pending appeal. Doherty J.A.’s endorsement states that no effort has been made to perfect the appeal and that there is real doubt that the appellants have standing to appeal. The endorsement also states that The Savarin Limited has no claim against the Property as owner;

(f) December 10, 1998 – Registrar of the Court of Appeal dismisses the appeal of the original Order of Greer J. for failure to perfect it;

(g) November 2, 1998 – Order by Greer J. vesting the title to the Property in the purchasers, Mary Matthews and James Archer-Shee;

(h) November 5, 2001 – Order of Wilson J. dismissing William Assaf’s motion seeking to rescind all previous orders by Greer J.;

(i) November 12, 2002 – tab 16 – Order of Divisional Court (Carnwath J.) dismissing William Assaf’s motion for leave to appeal the Order of Greer J., and prohibiting William Assaf from bringing any further motions before paying the costs ordered by Greer J.;

(j) November 16, 2005 – Order of Dambrot J. in a separate action by Vivian Assaf against the accountants for the Estate of Edward Assaf and others, declaring the claim in that action against the Estate of Robert Bosada and against Mary Matthews and James Archer-Shee to be abuses of process as they attempt to re-litigate the ownership of the Property which was already settled by the vesting Order of Greer J.;

(k) January 11, 2006 – Endorsement of Seigel J. requiring Vivian Assaf and William Assaf to bring any proceedings based on a forensic report regarding a forged signature by Robert Bosada (the “Krueger Report”) by March 10, 2006;

(l) January 13, 2006 – Costs endorsement by Dambrot J. noting that the allegations made by Vivian Assaf of unethical conduct against Mr. Burton in his capacity as solicitor for the Estate of Robert Bosada cannot be established. Dambrot also orders costs on a substantial indemnity basis to Matthews and Archer-Shee, holding that the action against them is frivolous and vexatious;

(m) February 8, 2006 – Court of Appeal dismisses Vivian Assaf appeal of the Order of Dambrot J. for failure to perfect appeal;

(n) August 25, 2006 – Endorsement of Blair J.A granting motion by Vivian Assaf to set aside Registrar’s dismissal of appeal of Dambrot J. Order. Blair J.A. comments that although he cannot say without a full hearing that the appeal is wholly without merit, it looks frivolous. He also notes the existence of the Krueger Report re Bosada’s forged document. Blair J.A. orders that Vivian Assaf post $60,000 as security for costs;

(o) November 21, 2006 – Court of Appeal extends time for posting the security for costs ordered by Blair J.A, and confirms that it was right to order security as it was open to Blair J.A. to find that the appeal appeared frivolous and vexatious;

(p) January 10, 2007 – Court of Appeal dismisses Vivian Assaf’s appeal for failure to post security for costs;

(q) July 26, 2007 – Supreme Court of Canada dismisses a motion for leave by Vivian Assaf to stay her own application for leave to appeal the judgments of the Court of Appeal pending the passing of accounts for the Estate of Edward Assaf;

(r) February 26, 2009 – Reasons for judgment of Strathy J. in passing of accounts of Estate of Edward Assaf, with participation by Vivian Assaf and William Assaf as objectors. Strathy J. finds that Robert Bosada, while in his capacity as executor of the Estate of Edward Assaf, forged a signature on a document, but that this had no bearing on the ownership of the Property. Strathy also holds that Bosada’s lawyer, Bernard Burton, engaged in no wrongdoing or non-disclosure of the Kruger Report. Strathy J. also confirms that there is no evidence that the Property is owned or was supposed to be transferred to Savarin.

(s) April 6, 2009 – Costs endorsement of Strathy J. awarding costs to participating parties except for William Assaf. Strathy J. finds that the conduct of William Assaf unnecessarily lengthened the duration of the proceedings.

(t) April 14, 2009 – Order of Divisional Court (McCombs J.) refusing to dismiss William Assaf’s appeal of the Strathy J. judgment;

(u) June 8, 2009 – Divisional Court (Jennings J.) Order dismissing William Assaf’s motion for further production on appeal of Strathy J. judgment;

(v) June 11, 2009 – Order of Registrar of Divisional Court dismissing William Assaf’s appeal of Strathy J. judgment for delay in perfecting appeal;

(w) July 12, 2010 – Endorsement by Swinton J. dismissing William Assaf’s motion to re-open the appeal of Strathy J.’s Order. Swinton J. notes that the motion appears to be an attempt to circumvent the decision of Jennings J., and states that, “[t]he principles of res judicata bar a party from raising an issue in subsequent proceedings that could and should have been raised in an earlier proceeding between the parties.”

(x) December 16, 2010 – Order of Divisional Court dismissing William Assaf’s motion to set aside and vary the ruling of Swinton J.

(y) February 24, 2011 – Issuance of the Statement of Claim in the Action herein. William Assaf claims ownership of the Property for Savarin and/or the Estate of Edward Assaf and/or himself, damages from the two purchasers (Ms. Matthews and Mr. Archer-Shee), and damages against the Estate of Robert Bosada and Bernard Burton.

[16] As can be seen, it is with good reason that many of the judges that have looked at the non-stop litigation between these parties have paused to comment on its destructive nature. Perhaps Cromarty J. said it best three decades ago in Assaf v Koury (1980), 16 CPC 202 (Ont SC), a judgment in the Dependents’ Relief Act application by Vivian Assaf against the estate of her late husband. Cromarty J. dismissed Vivian Assaf’s application, in the process describing the Assaf litigants as “figures in a classical tragedy, bent upon destroying that which surrounds them and especially their monetary inheritance.” Ibid., quoted in Re Assaf Estate, supra, at para 13.

IV. Re-litigation of previously determined issues

[17] Mr. Rabinowitz submits that the within Action amounts to re-litigation of previously determined issues and an attempt to maintain the war over the Property, whose ownership was long ago decided by the court. Mr. Barton submits that the Statement of Claim is a deliberate collateral attack on the judgment of Strathy J., which is final now that all appeals have been dismissed. Mr. Spurr, on behalf of Mary Matthews and James Archer-Shee, points out that his clients have been held since 1998 to be the rightful owners of the Property and have been found to be entirely innocent victims of William Assad’s desire to continuously litigate the same issues over the years.

[18] It is patently obvious that title to the Property belongs to Ms. Matthews and Mr. Archer-Shee. They purchased the Property for value from the Estate of Edward Assaf, pursuant to a vesting Order issued by Greer J. Their ownership has been challenged by Vivian Assaf and William Assaf on numerous occasions since their 1998 purchase, and has consistently been upheld.

[19] The same is true of the damages claims contained in the Action. Bernard Burton was specifically found by Strathy J. to have engaged in no wrongdoing vis-à-vis any of the Assafs or their interests or estates.

[20] As for Robert Bosada (and his estate), Strathy J. did find him to have wrongfully forged the signature of one of William Assaf’s former lawyers on a document during the course of this contentious litigation. At the same time, Strathy J. found as a fact that Mr. Bosada’s improper act did not impact on any ownership interest in the Property and did not cause damage to William Assaf. Indeed, while Strathy J. felt inclined to reduce the award of executor’s fees to Mr. Bosada as an expression of the court’s disapproval, he did not eliminate Mr. Bosada’s fees altogether. The improper signature was seen as one error committed by Mr. Bosada during the course of handling otherwise oppressive litigation by Vivian Assaf and William Assaf.

[21] In all, this is a paradigm case for the application of issue estoppel. This doctrine is invoked in order to “[preclude] a party from relitigating a legal or factual issue that has been conclusively resolved in a prior proceeding.” Smith Estate v National Money Mart Co., 2008 CarswellOnt 6415, at para 33 (Ont CA).

[22] As the Supreme Court of Canada has put it, issue estoppel limits the Plaintiff “to one bite at the cherry”. Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 SCR 460, at para 18. In terms of ownership of the Property and the damages claimed against both Mr. Burton and Mr. Bosada, William Assaf has had multiple bites at the same cherry; it is time for the courts to put the re-litigation of these issues to an end.

[23] One of the requirements of issue estoppel is that the parties to the current litigation are the same as the parties to the previous litigation in which the issue was determined. In the present case, William Assaf’s position is that he was not formally a party to the passing of accounts of the Estate of Edward Assaf, and so issue estoppel cannot apply to the 2009 judgment of Strathy J. in Re Assaf Estate, supra.

[24] I do not agree with this view of those proceedings. In his judgment of February 26, 2009, Strathy J. listed the parties to the application and identified William Assaf as participating as an “Objector” to the passing of accounts. Moreover, in his costs endorsement of April 6, 2009, Strathy J. went out of his way to state that, “William Assaf was the producer, director and principal actor on behalf of the Objectors” [para 5]. Although the title of proceedings in a passing of accounts is simply Re Estate of Edward Assaf, an Objector is a party along with the Estate Trustee. As between the Objector and the Estate Trustee, there is no reason for issue estoppel not to apply to a judgment on passing of accounts.

[25] In any case, the continued litigation of issues respecting the Property and the damages claims in the Action would certainly amount to an abuse of process. Title to the Property was definitively established by the vesting Order of Greer J. in 1998, and there is no basis on which to revisit that Order.

[26] One way or another, as Binnie J. put it in Danyluk v Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 SCR 460, at para 18, “the law rightly seeks a finality to litigation”. It is certainly the case here that “allowing the litigation to proceed would violate principles such as ‘judicial economy, consistency, finality and the integrity of the administration of justice’”, thereby triggering the doctrine of abuse of process. British Columbia (Workers’ Compensation Board) v Figliola, 2011 SCC 52, [2011] 3 SCR 422, at para 33.

[27] It is William Assaf’s position that the fact that Mr. Bosada was found by Strathy J. to have acted improperly changes all previous results. However, Strathy J. found precisely the opposite; that is, he admonished Mr. Bosada but concluded that this misstep had no impact on the issues at hand. It certainly had nothing to do with the vesting of title to the Property in Ms. Matthews and Mr. Archer-Shee, and he specifically found that it was not grounds for compensation against the Estate of Robert Bosada or Mr. Burton, who had in any case done nothing wrong.

[28] The court has an inherent discretion to prevent any abuse of process that might arise from unnecessary duplication of claims. City of Toronto v Canadian Union of Public Employees, Local 79, 2003 SCC 63, [2003] 3 SCR 77, at para 35. In my view, the Action presents a highly appropriate case in which to exercise that discretion. Title to the Property is not in doubt, and William Assaf and related parties have tried on numerous times to challenge that title and have never been successful.

[29] In addition to all of that, it was ordered by Siegel J. in January 2006 that William Assaf must bring any claim based on the expert report identifying Mr. Bosada’s improper signature by March 10, 2006. The within Action was commenced on February 24, 2011. The court ordered deadline for the Action was missed and was never further extended.

[30] In addition, the two year limitation period under the Limitations Act, 2002, SO 2002, c. 24, that would apply to any claim based on the expert report and Mr. Bosada’s wrongful signature, has also been missed. It is evident from the content of Siegel J.’s endorsement that as of January 11, 2006, all parties were aware of the existence of the report of Mr. Bosada’s conduct, and that William Assaf and his related parties and interests were already contemplating a claim based on Mr. Bosada’s wrongful act. Despite this knowledge of the basis of their claim, the Plaintiffs in the Action did not issue the Statement of Claim until more than five years later. They are out of time.

[31] For reasons of issue estoppel, abuse of process, a missed court-ordered time limit, and an expired limitation period, the Action must be dismissed.

V. The Vexatious litigant

[32] As a companion to the motion to dismiss the Action, Mr. Rabinowitz has brought on behalf of Bernard Burton (and supported by the other defendants in the Action) an Application under section 141(1) of the Courts of Justice Act, RSO 1990, c. C.43 to have William Assaf declared a vexatious litigant. In essence, this Application seeks to end, once and for all, what Cromarty J. dubbed over thirty years ago the “long and bitter vendetta against the estate [of Edward Assaf]” and against everyone that touches it. Assaf v Koury, supra, at para 1.

[33] The most frequently referenced indicators of a vexatious litigant were set out by this court in Lang Michener v Fabian (1987), 1987 172 (ON SC), 59 OR (2d) 353, at para 20 (Ont SC), as follows:

(a) bringing multiple actions to determine issues already determined;

(b) bringing actions that obviously cannot;

(c) bringing actions or motions without reasonable grounds for the purpose of harassment of opposing parties;

(d) bringing actions in which grounds and issues raised get rolled forward into subsequent actions and repeated and supplemented, or combining actions with new actions against the lawyers who had acted in earlier stages of the proceedings;

(e) continuing with futile actions even if originally meritorious;

(f) failure to pay costs awarded against the litigant along the way;

(g) persistently filing unsuccessful appeals.

[34] The key to an order under section 140(1) is that the litigant must have “persistently” and “without reasonable grounds” conducted the proceedings in a vexatious manner. Bishop v Bishop, 2011 ONCA 211, at para 9.

[35] As is evident from the chronology set out in Part III above, William Assaf has persistently attempted to re-litigate issues already determined by the court. He has brought claims and appeals that no reasonable person could expect to win. What’s more, he has initiated actions, motions and appeals that contain no legally recognizable claim and that do little more than oppress and harass his opponents with repetitions of prior claims.

[36] In William Assaf’s litigation history, issues and grounds raised in one proceeding have almost always been rolled forward into subsequent proceeding. He has attempted to appeal virtually every ruling, often simply for the sake of filing an appeal and then having it dismissed for failure to perfect. He consistently has failed to pay costs awarded against him; indeed, even at the start of this motion he was under an order not to take any fresh steps in the Action until a prior costs award was paid. Endorsement of Moore J., July 18, 2012, Court File No. CV-11-420827. In addition to all of that, William Assaf has engaged in one of the hallmarks of a vexatious litigant in bringing and repeating claims against opposing counsel, Mr. Burton.

[37] An order under section 140(1) is an extraordinary remedy. Nevertheless, where, as here, the ingredients described in the Lang Michener case are present, it is a necessary means of controlling abuses of the litigation system. Ontario v Coote, 2011 ONSC 858, [2011] OJ No 697, at para 63, aff’d 2011 ONCA 563.

[38] I would point out that an order under section 140(1) does not deprive a person of access to justice; rather, it provides extra scrutiny by the court, and impresses potential claims with a form of orderliness without prejudicing their merits. Science Applications International Corp. v Pagaurov, [2012] OJ No 5696, at para 45, 49. Accordingly, it is beneficial to the litigant himself. Without such an order and its accompanying judicial imprimatur for future claims, William Assaf will remain a Pirandellian character in search of an author, re-enacting past struggles in a dramatic loop he cannot seem to escape.

[39] Strathy J. described the record for the Estate of Edward Assaf as comprised of “over thirty lawsuits or applications and over one hundred and thirty court orders or endorsements…including several orders of the Court of Appeal and of the Supreme Court of Canada.” Re Assaf Estate, supra, at para 2. This litigious warfare has been driven by the late Vivian Assaf and by William Assaf.

[40] As this court said in Coote, supra, at para 65, the court must be the “gatekeeper of the publicly-funded justice system in an era where cases are delayed for months because of lack of available court time.” Under the circumstances, a section 140(1) order directed at William Assaf is the only way to responsibly fulfill the court’s gatekeeper function.

VI. Disposition

[41] The Action is dismissed. The Order sought in the Application under section 140(1) of the Courts of Justice Act against William Assaf is granted.

[42] Approval of the Judgment and/or Order as to form and content by Savarin and by William Assaf in any of his capacities is hereby dispensed with.

[43] In his endorsement herein of July 18, 2012, Moore J. adjourned the motion and ordered costs thrown away in the amount of $2,500 to Fraser Milner Casgrain for Bernard Burton, $1,500 to Bernard Burton for the Estate of Robert Bosada, and $1,500 to Trevor Spurr for Mary Matthews and James Archer-Shee. He left the timing of those payments to the judge hearing the motion and the Application on their merits. Those costs, which are in addition to the costs of the two proceedings as set out below, are now payable forthwith.

[44] Mr. Rabinowitz’ client (Mr. Burton), Mr. Burton’s client (the Bosada Estate), and Mr. Spurr’s clients (Ms. Matthews and Mr. Asher-Shee) shall have their costs of the Action on a substantial indemnity basis. After more than forty years of litigation over the Property and other claims relating to the Estate of Edward Assaf, William Assaf knew full well that the Action was not only futile but oppressive in the extreme. Indeed, he had been told so numerous times by courts in the past.

[45] In addition, Mr. Rabinowitz’ client shall have his costs of the Application on a partial indemnity basis. William Assaf’s conduct of the litigation over a course of many years has given rise to the Order against him under section 140(1) of the Courts of Justice Act, but he did have a right to contest the Application. He was unsuccessful in doing so, but did not do anything in his response to the Application to deviate from the usual costs on a partial indemnity scale in that proceeding.

[46] The Plaintiffs in the Action and William Assaf as Respondent in the Application shall pay Fraser Milner Casgrain for Bernard Burton a total of $50,000. The Plaintiffs in the Action shall also pay $18,000 to Bernard Burton for the Estate of Robert Bosada, and they shall pay $5,000 to Trevor Spurr for Mary Matthews and James Archer-Shee. All of these amounts are inclusive of disbursements and HST. As both the Action and the Application are now at an end, these costs are all payable forthwith.

Morgan J.

Released: March 6, 2013

COURT FILE NO.: CV-11437021
and CV-11-420827

DATE: 20130306

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Bernard Burton

Applicant

– and –

William Assaf

Respondent

AND BETWEEN:

The Savarin Limited and William Assaf, Estate Trustee of
the Estate of Edward Assaf, deceased, and William
Assaf, a Beneficiary of the Estate of Edward Assaf, deceased

Plaintiffs

– and –

Mary Matthews, Bernard Burton, the Estate of Robert
Bosada, deceased, and James Archer-Shee

Defendants

REASONS FOR JUDGMENT

E.M. Morgan J.

Released: March 6, 2013