SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILES NO: 313/04
DATE: 20130227

Parties

RE: David Bruce Tate
Plaintiff

• and -

Joanne Gueguegirre, Jackie MacDonald, Cheryl MacDonald, Colleen Sparks, Sheila Sparks and Jasmine Sweatman, in her capacity as Estate Trustee During Litigation
Defendants

BEFORE: The Honourable Mr. Justice Kevin Whitaker

COUNSEL:
A. Sean Graham & Pia H. Hundal, for the Plaintiff

Nancy J. Tourgis, for the Defendants,
Cheryl MacDonald, Colleen Sparks, Joanne Gueguegirre, Jackie MacDonald

Hartley M. Isenberg, for the Defendant,
Sheila Sparks

ENDORSEMENT

Re COSTS

[1] This is a costs endorsement following a will challenge that consumed 14.5 days of trial.

[2] The plaintiff was entirely successful and is now the executor and principal beneficiary.

[3] The will was proven despite suspicious circumstances.

[4] The plaintiff was also successful on a half-day motion dealing with insurance obligations, heard during trial.

[5] Although I found the plaintiff incredible, the will was proven on credible evidence from other witnesses called by him.

[6] The parties agree the factors described in Rule 57.01 should guide the exercise of my discretion to award costs. In particular, costs should reflect the reasonable expectations of the losing parties and be proportionate to the circumstances in issue.

[7] The parties agree the usual practice of “loser pays” applied in civil litigation, is the default practice in estates litigation.

[8] It is no longer acceptable without good reason that parties in estates litigation should be immune to the risk of costs.

[9] This modern approach still provides for costs to be borne by the estate where there was a reasonable basis to litigate the validity of a will - and makes sense in light of all the circumstances of the litigation (see Davies v. Collins 2011 NSSC 327 at para 17; Kazarian v. Fraser 2011 ONSC 3794, Pytka v. Pytka 2012 ONSC 6406 at para. 6 and Estate of John Kaptyn 2011 ONSC 542).

[10] The acknowledged exceptions to the “loser pays” model are:

(i) where there are reasonable grounds to question the execution of the will or testamentary capacity, or;

(ii) where the difficulties in the will were caused in whole or in part by the testator.

[11] Where one of these exceptions is present, it may be appropriate in some cases for costs to be paid from the estate.

[12] In the present case, the five defendants were faced with a long list of suspicious circumstances now referred to in the judgment. The plaintiff conducted himself in a manner which invited inquiry. It is not difficult to understand why the defendants did not trust the plaintiff.

[13] Apart from the underlying facts of the case, the plaintiff’s behavior during trial contributed unnecessarily to the length of the litigation.

[14] Taking into account the underlying undisputed facts, the quantity and quality of suspicious circumstances and the plaintiff’s role in this case, it was reasonable for the defendants to challenge the will.

[15] It is appropriate for the estate to bear the costs of the litigation.

[16] I have reviewed the parties’ Bills of Costs. I have taken into account the amount of time spent, the necessity of the particular work given the issues to be addressed, the need for trial preparation and the seniority of counsel.

[17] The plaintiff seeks costs of $225,000.00. The defendant, Sheila Sparks, calculates her partial indemnity costs to be $60,511.50. The remaining defendants calculate their partial indemnity costs to be $105,677.67. ETDL fees paid by the estate are $120,000.00. The plaintiff seeks reimbursement of these fees to the estate.

[18] The dispute was of great significance to the parties and their families.

[19] The case was fact-driven. There were no substantial or complex issues of law.

[20] Much turned on issues of credibility.

[21] I acknowledge that the plaintiff as principal beneficiary will be comparatively disadvantaged by costs payable from the estate. That is an appropriate outcome in consideration of the plaintiff’s role in the matter.

[22] The plaintiff is entitled to his costs fixed at $200,000, Sheila Sparks is entitled to her costs fixed at $50,000, and the remaining four defendants are entitled to their costs together fixed at $100,000. These costs are payable by the estate forthwith, inclusive of taxes and disbursements, and with interest according to the Courts of Justice Act.

[23] To be clear, the parties are not obliged to reimburse the estate for the fees paid to the ETDL.

[24] With respect to the companion litigation, the parties may contact my assistant to schedule an appearance to speak to the matter.

Whitaker J.

DATE: February 27, 2013