ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-12-0479 & CV-12-0480
DATE: 2014-02-19
B E T W E E N:
In the Estate of Jonny Daniel Kuzyk, also known as Jon Kuzyk, deceased.
Court File No: CV-12-0479
Peter Kuzyk as Estate Trustee for the Estate of Jonny Kuzyk,
Peter Kuzyk, appearing in person for the Applicant
Applicant
- and -
Elaine Blando,
Respondent
Robin A. Clinker, for the Respondent
AND B E T W E E N:
Court File No: CV-12-0480
In the Estate of Mary Kuzyk,
Peter Kuzyk as Estate Trustee for the Estate of Mary Kuzyk,
Applicant
- and -
Elaine Blando,
Respondent
Peter Kuzyk, appearing in person for the Applicant
Robin A. Clinker, for the Respondent
HEARD: February 7, 2014,
in Thunder Bay, Ontario
McCartney J.
Decision On Costs
[1] This is a motion to determine costs on the passing of accounts in the Estates of Jonny Daniel Kuzyk and Mary Kuzyk. The matters were heard at the same time, and I rendered my original decision on the passing of accounts on January 23, 2014.
[2] The Applicant herein is the Estate Trustee, Peter Kuzyk. His position is that the costs he claims, of $18,315.98, from the estates should be partially reimbursed to the estate by the Respondent (Objector), Elaine Blando, in the amount of $13,736.99 (75% of his account). The reason for this, he says, is that it was Elaine Blando’s lack of co-operation which prevented a peaceful resolution of the contentious passing of accounts.
[3] The Respondent (Objector) takes the position that her costs for a total of $10,951.99 (partial indemnity) or $13,571.88 (substantial indemnity) should be borne by the Estate Trustee personally, and he should not be allowed any of his own costs out of the estate or otherwise.
[4] Even though costs in the passing of accounts in estate matters were traditionally paid out of the estate, in modern times such costs tend to be considered on the normal principles used in assessing costs in contested actions.
[5] In the present case, considerable confusion has arisen since the Estate Trustee retained a law firm (Larson’s) to assist him in the administration of the estate. This firm also assisted in preparing the accounts, but since there was no agreement with the only other beneficiary of the estate regarding the accounts as presented, the Respondent requested a formal passing in both estates and in fact, had to apply to the court for an order regarding same. Thereupon the Estate Trustee retained a second law firm (Buset’s) to prepare another set of accounts. These were used in this proceeding.
[6] The parties seem to be in agreement that there was very little difference in this final accounting from the one prepared by the Larson office, but a new set of legal costs were incurred which are now also being claimed by the Estate Trustee. Since I cannot see any reason why the Estate Trustee retained a second firm of solicitors to prepare a totally new set of accounts, rather than merely adjust the old accounts, I am going to reduce the Estate Trustee’s claim for compensation to the approximate amount of the claim of the Objector Elaine Blando. Therefore I will assess the costs for each of the parties to be set at $13,500.00.
[7] In order to determine how the costs should be paid I am struck by the fact that of the two major issues identified by Shaw J. in his order setting out the issues to be tried, i.e. whether Alex Blando owed Mary Kuzyk’s Estate $30,000.00 and whether the Estate Trustee’s personal accounts to the Estates for professional engineering services were valid, the Estate Trustee was completely unsuccessful on both counts. Furthermore, with respect to the professional engineering services accounts, the Estate Trustee indicated that this claim was just a ploy to try and get the Respondent to withdraw her objection to the $30,000.00 claim of Mary’s Estate against Alex Blando. This is a very serious matter, as identified in the case of Re Parkin Estate, [1994] O.J. No. 6 – which sets out the following at paragraph 16:
“… The question arises whether it is fair and proper that the estate should pay and be burdened with the legal costs of the executors for a claim (being some $140,000.00) which they advanced against the estate for their own interest and which was determined against them. In my view they should not. They were advancing a claim in their own interest and not in the interest of the estate. When such a claim is disallowed the risk of advancing such claim is not to be borne by the estate but rather by the executors. …”
[8] Finally, it appears that of the combined costs incurred with respect to this passing of accounts 25% should be assigned to the Estate of Jonny Daniel Kuzyk and 75% to the Estate of Mary Kuzyk.
[9] In the result then:
A. The Respondent, Elaine Blando’s costs are to be apportioned as follows:
From the Estate Trustee, Peter Kuzyk personally $6,750.00
From the Estate of Mary Kuzyk (3/4 x $6,750.00) $5,062.50
From the Estate of Jonny Kuzyk (1/4 x $6,750.00) $1,687.50
Total $13,500.00
B. The Applicant, Peter Kuzyk’s costs are to be apportioned as follows:
To be covered personally $6,750.00
From the Estate of March Kuzyk (3/4 x $6,750.00) $5,062.50
From the Estate of Jonny Kuzyk (1/4 x $6,750.00 $1,687.50
Total $13,500.00
The Hon. Mr. Justice J. F. McCartney
Released: February 19, 2014
COURT FILE NO.: CV-12-0479 & CV-12-0480
DATE: 2014-02-19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
In the Estate of Jonny Daniel Kuzyk, also known as Jon Kuzyk, deceased.
Peter Kuzyk as Estate Trustee for the Estate of Jonny Kuzyk,
Applicant
- and -
Elaine Blando,
Respondent
AND B E T W E E N:
In the Estate of Mary Kuzyk,
Peter Kuzyk as Estate Trustee for the Estate of Mary Kuzyk,
Applicant
- and -
Elaine Blando,
Respondent
DECISION ON COSTS
McCartney J.
Released: February 19, 2014
/mls