SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-12-110494-00
DATE: 20140409
RE: EUGENIA COLUMBOS, by her Attorney for Property MICHAEL A. COLUMBOS, Applicant
AND:
MICHAEL THEODORE COLUMBOS, ANDREW COLUMBOS and RHONDA COLUMBOS, Respondents
BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY
COUNSEL:
M. Rintoul, for the Applicant
The Respondent Self Represented
HEARD: By written submissions
COSTS ENDORSEMENT
[1] This costs endorsements relates to the endorsement released by this court on February 28, 2014 with respect to its rulings on the trustee’s motion for summary judgment and the application for vacant possession of property owned by the deceased’s estate (Columbos v. Columbos, 2014 ONSC 1342). The estate trustee was entirely successful in each of these matters brought by him before court.
[2] The only issue outstanding in this matter is the future conduct of a reference for a determination of:
The amount of money invested by Peter Columbos for improvements in the property in question; and
The extent to which those improvements added to the value of the property, if any, for the purpose of a determination by the court of what Peter Columbos’ estate should be entitled to from the deceased’s estate by way of compensation.
[3] While the respondents have included material to be used on such a reference in their Costs Submissions, the determination of costs of the proceedings to date is a discrete matter. Costs may in future be assessed in relation to the reference proceeding only, once the outcome of that hearing has been determined, if sought by any party. The procedure surrounding such assessment hearing was addressed in the court’s previous endorsement. Accordingly the only matter before the court at this time is to address the costs of the motion for summary judgment and the costs of the application (CV-13-26727 and CV-12-110494). I am not seized in respect of the conduct of such a reference.
[4] Wide discretion and fixing costs rests with the court, bearing in mind the principles enunciated in the leading Ontario cases such as Anderson v. St. Jude Medical Inc. (2006), 2006 85158 (ON SCDC), 264 D.L.R. (4th) 557 (Ont. Div. Crt), Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), Zesta Engineering Ltd. v. Cloutier (2002), 2002 45084 (ON CA), 164 O.A.C. 234 (Ont. C.A.), and Clarington (Municipality) v. Blue Circle Canada Inc., 2009 ONCA 722, 100 O.R. (3d) 66. In considering also the criteria outlined in Rule 57.01(1), the following facts are most salient in informing my discretion regarding costs:
• The estate had total success;
• The respondents obtained no relief from the court, other than an indulgence to permit them to attempt to recover the value of improvements to the property, if any, through a reference;
• The respondents presented insufficient evidence to support any position advanced by them;
• The positions taken by the respondents were therefore unreasonable;
• The respondents failed to admit facts which should have been readily admitted;
• The amount of experience and hourly rates charged by counsel;
• The importance of these proceedings to the estate, which should not be understated, as the results achieved now permit the trustee to proceed with the administration of the estate, which had been stalled by the proceedings taken by the objectors.
[5] Costs in estate matters, in appropriate circumstances should be awarded against the unsuccessful litigants: McDougald Estate v. Gooderham 2005 21091 (ON CA), [2005] O.J. No. 2432, 17 E.T.R. 3d 36 (C.A.). One of those circumstances is where untenable positions are taken by a party. There is no just and fair reason why, in such circumstances, the beneficiaries should uniformly be deprived of the gifts made under the will, where the opposing litigants unsuccessfully seek a determination that runs contrary to the preponderance of evidence regarding the express wishes of the testator. On the basis of the considerations set out in Smith Estate v. Rotstein [2010] O.J. No. 3266, 2010 ONSC 4487, 59 E.T.R. (3d) 279, and appealed as [2011] O.J. No. 5898, 2011 ONCA 833 with costs reconsidered following the Court of Appeal at [2012] O.J. No. 3375, 2012 ONSC 4200, 79 E.T.R. (3d) 165, I find this is an appropriate case to award full indemnity costs payable by the unsuccessful respondents. Such costs are to be paid to the estate as a set-off against the amounts due to the respondents as beneficiaries. However, the option will be given to the respondents to pay the costs at an earlier date out of their personal funds in order to avoid the accrual of post-judgment interest, which will run on these costs awards until paid.
[6] I am required to step back and consider whether the award of costs is fair and reasonable in all of the circumstances. Given all of the factors set out above, as well as the number of appearances in these two matters and their complexity, I find that a fair and reasonable amount of costs for both proceedings is well within the range sought by the estate, and is in fact relatively modest given the amount of preparatory work and the experience of counsel.
[7] Accordingly:
An order shall issue in CV-12-110494 that the respondents shall pay to the applicant costs fixed in the amount of $25,500 inclusive of fees, disbursements and HST, payable from the respondents’ share of the estate unless otherwise paid by them prior to the distribution of the estate;
An order shall issue in CV-13-26727 that the respondents shall pay to the applicant costs fixed in the amount of $23,500 inclusive of fees, disbursements and HST, payable from their share of the estate unless otherwise paid by them prior to the distribution of the estate.
The approval of the respondents with respect to the cost orders in each proceeding shall be dispensed with.
HEALEY, J.
Date: April 9, 2014