COURT FILE AND PARTIES

COURT FILE NO.: 03-140/11

DATE: 20130723

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CRESCENZO A. VILLA also known as ENZO VILLA, Applicant

AND:

RENZO VILLA, Respondent

BEFORE: B. P. O’Marra J.

COUNSEL:
Ian K. Latimer, for the Applicant
Salvatore Guerriero, for the Respondent

HEARD: In writing

costs ENDORSEMENT

[1] The applicant was successful on the passing of accounts and payment of accounting and legal fees related thereto. The application involved two full days of evidence plus oral and written submissions. The respondent did not accept an Offer to Settle dated May 1, 2012 that would have reasonably resolved the issues on this modest estate.

[2] The modern approach to awarding costs, at first instance, in estate litigation recognizes the important role the courts play in restricting unwarranted litigation and protecting estates from being depleted by litigation. Costs should not be routinely ordered payable out of the estate. Otherwise people may perceive that there is nothing to be lost in pursuing estate litigation.

McDougald Estate v. Gooderham (2005) 2005 21091 (ON CA), 17 E.T.R. (3d) 36 at para. 85.

[3] The general costs rules for civil litigation apply equally to estates litigation. The loser pays subject to the court’s consideration of all relevant factors under Rule 57, and subject to the limited exceptions described in McDougald Estate. The “loser pays” principle brings needed discipline to civil litigation by requiring parties to assess their personal exposure to costs before launching down the road of a lawsuit or a motion. There is an even greater need to impose the discipline of the general costs principle of “loser pays” in order to inject some modicum of reasonableness into decisions about whether to litigate estate-related disputes.

Salter v. Salter Estate 50 E.T.R. (3d) 223 (S.C.O.), para. 6.

[4] In considering the factors set out in Rule 57.01 the conduct of the respondent on this application was unreasonable and rendered a rather straightforward matter unnecessarily complex. The respondent must have foreseen that if he rejected the Offer to Settle and unsuccessfully litigated the Passing of Accounts he could be liable for substantial costs.

[5] The respondent must pay costs on a partial indemnity basis up to May 1, 2012, and thereafter on a substantial indemnity scale. The respondent is ordered to pay costs to the applicant in the amount of $32,191.82.

[6] Further, the respondent is to pay into the estate the amount of $701.00 for the costs of the BMO invoice that has been debited from the joint account. This was an unnecessary cost incurred at the instance of the respondent that he has so far refused to pay.

B. P. O’Marra J.

Date: July 23, 2013