Bryant v. Best, 2015 ONSC 1853

COURT FILE NO.: E-6967-2013

DATE: 2015-03-23

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: IN THE MATTER OF THE ESTATE OF TIMOTHY ROBERT BRYANT, (deceased)

Steven Timothy Bryant, Moving Party

AND:

Peter Best, Estate Trustee During Litigation, Lynette Burton and Sarah Bryant, Responding Parties

BEFORE: The Honourable Madam Justice Louise L. Gauthier

COUNSEL: Moving Party, Self-represented

R.J. Leblanc, for the Estate Trustee During Litigation, Responding Party

L. Poratto-Mason, for Lynette Burton, Responding Party

K. Bales, for Sarah Bryant, Responding Party

HEARD: Written Submissions

ENDORSEMENT ON COSTS

[1] On January 9, 2015, I dismissed Steven Bryant’s Motion dated August 5, 2014, which was ultimately heard on January 6, 2015.

[2] Now I am dealing with the costs of that Motion. I have received written submissions from all the parties.

The Position of the Estate Trustee During Litigation

[3] Given the complete success of the Estate Trustee During Litigation (the “Trustee”) on the Motion, the only issue to be resolved is (a) on what scale should the costs be awarded to the Trustee, and (b) how they should be apportioned.

[4] Throughout the proceedings initiated by the August 5, 2014, Notice of Motion, the Trustee was repeatedly accused of dishonesty, and incompetence. The language used in Steven’s material was intemperate and disrespectful. The complaints made against the Trustee in the execution of his duties were unfounded and unjustified. Sarah supported Steven’s Motion, and herself made unfounded and unjustified accusations against the Trustee.

[5] The positions advanced by both Steven and Sarah were ill-considered from the outset and completely unsupported by any cogent or coherent evidence.

[6] It was reckless for Steven and Sarah to have caused such substantial legal expenses to be incurred, and to have delayed the winding up of this estate.

[7] The material filed on behalf of Sarah contained largely her opinion on matters, and few relevant facts. Likewise, for the material filed by Steven. Even after the cross-examination of the Trustee, there was no evidence obtained that could justify the removal of the Trustee.

[8] Steven’s treatment of Lynette Burton was equally disrespectful; his allegations of dishonesty on the part of Lynette Burton were not substantiated by the evidence.

[9] The Trustee relies upon the provisions of Rule 57.01(1)(e), (f) and (g) of the Rules of Civil Procedure, in requesting that the Trustee be awarded his costs on a substantial indemnity basis.

[10] The Trustee further points out that Steven brought the subject motion after a number of motions seeking the same relief had been resolved by way of Minutes of Settlement and after judicial mediation. This conduct, as supported by Sarah, requires sanction of the court in the form of substantial indemnity costs.

[11] The Trustee seeks to be compensated for his time, spent in responding to the motion, in accordance with the Order of Gordon J. dated January 17, 2014, and to receive full payment of his time out of the cash assets of the estate. As well, he seeks payment of his counsel’s costs, also out of the cash assets of the estate. He suggests that the order for costs be against Steven and/or Sarah and be paid out of their share of the estate; Lynette Burton did not support Steven’s motion in any fashion and, therefore, it is appropriate that she not be sanctioned by a costs order.

[12] Mr. Leblanc’s Costs Outline sets out the following:

1. D. Peter Best – actual fees $ 16,200.00

HST $ 2,106.00

TOTAL: $ 18,306.00

2. J. Robert Leblanc – partial indemnity $ 21,274.50

HST $ 2,765.35

TOTAL: $ 24,040.35

3. J. Robert Leblanc – actual fees $ 28,366.00

HST $ 3,687.58

TOTAL: $ 32,053.58

[13] In addition to the Costs Outline and submissions, the Trustee has provided the court with the Trustee’s account dated December 31, 2014. This account appears to include time spent in responding to the motion and other services rendered to the estate. In dealing with the costs, I am proceeding on the basis of Mr. Leblanc’s Costs Outline, and not on the Trustee’s statement of account dated December 31, 2014.

Position of Lynette Burton

[14] Lynette reiterates that the allegations against her were unsubstantiated and not accepted by the court. She also points out that the relief being sought by Steven (and Sarah) as against her was not available. There was no basis for making any Order against Lynette.

[15] The proceedings following the Minutes of Settlement were totally devoid of merit and an abuse of the judicial system.

[16] Lynette was subjected to several hours of “often brutal and unreasonable cross-examination, numerous accusations and personal threats against her made by Steven and Sarah.”

[17] Many of the allegations advanced against her were unrelated to the issues raised by the motion, “but rather, were an expression of the enmity Steven feels towards Lynette, her counsel, Peter Best, and non-parties to this litigation.”

[18] Sarah’s failure to distance herself from Steven’s behaviour, and, her condonation of such conduct, should result in costs being awarded against her as well as Steven, and that Lynette’s costs should be paid by Steven and Sarah directly to Lynette, from Steven and Sarah’s share of the estate.

[19] Lynette seeks her costs in the amount of $53,976.11, being the actual fees and disbursements billed to her by her counsel.

Position of Sarah Bryant

[20] Sarah is entitled to and should be awarded full indemnity costs, including disbursements and H.S.T. for her counsel’s preparation, travel and attendance on November 19, 2014. Steven had requested and was entitled to an adjournment to obtain the transcripts of the cross-examination of Peter Best and to cross-examine Lynette Burton. Steven had made earlier requests for an adjournment. Sarah was prepared to consent to the adjournment, but the Trustee and Lynette were not.

[21] The refusal of the request for adjournment necessitated the preparation and attendance of Sarah’s counsel, from Toronto, at the Sudbury Courthouse on November 19, 2014. Sarah is entitled to her costs thrown away for the November 19, 2014, attendance. Those costs are $9,375.79. They should be paid by Peter Best and Lynette Burton personally.

[22] Sarah resists the request for substantial indemnity costs against her, for the motion, indicating that her participation was neither frivolous nor vexatious. Her Affidavit made it clear that she only supported Steven’s request for the removal of Peter Best as Trustee.

[23] If Sarah had been informed in a timely manner regarding the actions taken by the Trustee as described in the Affidavit of Peter Best, sworn December 3, 2014, Sarah’s response to the motion would have been different.

[24] Any costs awarded against Sarah should be proportionately allocated to reflect Sarah’s limited participation and the narrow relief she supported.

[25] Peter Best is not entitled to any costs of the motion or his cross-examination. As the Trustee, he was a responding party to Steven’s motion, just like Sarah and Lynette.

[26] Lynette Burton’s costs are inflated and include time and disbursements for work done outside the scope of the motion. Lynette is only entitled to costs for work done by her counsel in responding to Steven’s motion. She is not entitled to costs for her counsel’s attendance at Peter Best’s cross-examination as she did not participate on the record in the cross-examination.

[27] Likewise for the costs associated with the dismissal of Lynette’s two actions (Court file C-3277-14 and C-3278-14), and those relating to the removal of the Certificate of Pending Litigation.

[28] As well, Lynette moved unsuccessfully for summary judgment, without notice or supporting materials, at the November 19, 2014, appearance, therefore lengthening the proceedings.

Position of Steven Bryant

[29] Steven submits that he is entitled to and should be awarded his “costs of travel” for attending the November 19, 2014, hearing, at which time he was successful in obtaining an adjournment of the motion.

[30] Like Sarah, Steven submits that Lynette’s costs are excessive, and include costs for time spent during the mediation process, which is improper. He points out that the Minutes of Settlement (which I found to be in effect) are clear that all parties are to bear their own costs.

[31] Steven makes the following submission: “As for the [sic]any costs that may be associated to my sister, I would ask that this court accept my recommendation that any costs associated with my sister be given to me instead…….I am the older brother and so I ask that you appreciate I pushed harder than she did and she was forced to support me out of a position of being a sibling.”

The Costs

[32] The fixing and awarding and allocation of costs are in the discretion of the court pursuant to section 131(1) of the Courts of Justice Act. The court’s discretion is exercised taking into account the factors set out in Rule 57.01(1):

57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs. R.R.O. 1990, Reg. 194, r. 57.01 (1); O. Reg. 627/98, s. 6; O. Reg. 42/05, s. 4 (1); O. Reg. 575/07, s. 1.

The Trustee’s Costs of the Motion

[33] Steven’s motion was dismissed in its entirety. I found that there was no basis in law to set aside or “nullify” the agreement, as requested by Steven. I also concluded that the evidence from both Steven and Sarah failed to meet the test for the removal of a court approved Trustee.

[34] The Trustee then is entitled to his costs relating to the motion. Insofar as the scale of costs is concerned:

It is a well-established principle of law that costs on a substantial indemnity basis are to be awarded only in rare and exceptional cases, where there has been reprehensible, scandalous or outrageous conduct in the course of the litigation.

[35] See Hunt v. TD Securities Inc. (2003), 2003 3649 (ON CA), 66 O.R. (3d) 481, [2003] O.J. No. 3245 (C.A.), at p. 509.

[36] The jurisprudence also establishes that costs on the higher scale will be awarded where there are unfounded allegations of fraud and dishonesty. (Twaits v. Monk, 2000 14725 (ON CA), [2000] O.J. No. 1699, 8 C.P.C. (5th) 230 (C.A.).

[37] Put another way in DiBattista v. Wawanesa Mutual Insurance Co. (2005), 2005 41985 (ON SC), 78 O.R. (3d)445 (S.C.J.):

Costs should be awarded on a substantial indemnity basis were unfounded allegations of a fraud or dishonesty or other improper conduct seriously prejudicial to the character or reputation of the party are made.

[38] In the within proceeding, Steven did make unfounded allegations of fraud, dishonesty, incompetence, and other improper conduct “seriously prejudicial to the character or reputation” of the Trustee. Sarah supported Steven’s position.

[39] Steven’s conduct merits condemnation by way of an award of costs on the higher scale.

[40] The positions taken by Steven and Sarah were not supported by the evidence and were unreasonable. The complaints about the Trustee’s actions, and about any delay, were unfounded and unjustified.

[41] In all the circumstances, the Trustee should be awarded his costs on a full indemnity basis. In addition to the legal fees the Trustee incurred, he expended much time, not in the administration of the estate, but rather, in responding to Steven’s and Sarah’s unfounded and unjustifiable attacks on his integrity and his competence and professionalism. Further, as a matter of necessity, the Trustee had to retain and pay for legal counsel to represent him on the motion.

[42] He will be awarded the sum of $44,166 ($14,600 for the Trustee; $29,566 for counsel) plus H.S.T. I have reduced the amount claimed by $400 as there appears to be an error on the Costs Outline insofar as the time spent in attendance at the hearing of the motion: it was counsel, and not the Trustee who attended the hearing, and counsel’s hourly rate is $300, not $400.

[43] I turn now to the apportionment and payment of those costs.

Generally, the loser-pays regime applies to estate litigation, and successful parties are entitled to have their reasonable costs paid by the unsuccessful parties. Courts are careful to ensure that the resources of the estate are not wasted on unnecessary litigation; thus, costs are usually only payable from an estate where the litigation arose out of the actions of the testator or was reasonably necessary to ensure the proper administration of the estate: McDougald Estate v. Gooderham, 2005 21091 (ON CA), [2005] O.J. No. 2432 (C.A.), at paras. 78, 80, 85, 91; and Vance Estate, 2010 ONSC 4944, at para.4.

[44] The above is found at paragraph 51 of Feinstein v. Freedman, 2014 ONCA 205.

[45] Lynette Burton did not support Steven’s motion; she supported the Trustee. It would be unfair for her if any portion of the Trustee’s costs of the motion were borne by the estate.

[46] I now turn to the apportionment of the Trustee’s costs as between Steven and Sarah.

[47] While Sarah did not accuse the Trustee of fraud or dishonesty, she nonetheless supported Steven’s motion to remove the Trustee, and in doing so, alleged that the Trustee had favoured Lynette over Steven and Sarah, delayed the administration of the estate, failed to discharge his duties diligently, failed to act reasonably, and caused financial loss to the estate.

[48] As well, she did not, until the hearing of the motion itself, concede that the real properties had fetched fair market value.

[49] Sarah maintained the position that she and Steven were entitled to certain items of furniture and was critical of the Trustee’s very reasonable conclusion that it would be unwise and disproportionate to expend time and money on a dispute about items of little financial value.

[50] In the circumstances, it is appropriate for Sarah to be responsible for a portion of the Trustee’s costs. Sarah will be responsible for 30% of those costs; Steven will be responsible for the other 70% of those costs.

[51] The costs will be borne by Steven and Sarah, from their share of the estate, rather than by the estate itself.

[52] Steven has indicated that he is prepared to be responsible for any share of the costs attributed to Sarah. That is his prerogative.

Lynette’s Costs of the Motion

[53] Steven sought relief against Lynette and made serious allegations against her. She necessarily had to respond and, in doing so, incurred substantial legal costs.

[54] Steven accused both Lynette and her counsel of improprieties. He accused Lynette of criminal behaviour and alleged that she had a criminal record. Those allegations were not substantiated by the evidence.

[55] Lynette was subjected to some four hours of “brutal and unreasonable” cross-examination by Steven. Virtually none of the evidence yielded by the cross-examination was relevant to the motion.

[56] In the circumstances, Lynette should be awarded her costs on a substantial indemnity basis.

[57] Having said that, both Steven and Sarah reasonably take issue with the amount claimed by Lynette for costs, pointing out that some of the costs relate to legal services rendered to Lynette other than for the motion.

[58] A cost award should be fair and reasonable for the unsuccessful party to pay in the particular proceedings.

[59] I am of the view that the amount claimed for costs is not proportionate to the response required by the motion. I conclude that it would be fair and reasonable to fix Lynette Burton’s costs at $29,000, which is what Mr. Leblanc’s fees were. To that I would add the sum of $327 for proper disbursements. The balance of the disbursements claimed do not relate to the motion. Lynette will also be awarded the H.S.T.

[60] Again, I find that it is appropriate for the amount of those fees to be paid out of Steven and Sarah’s share of the estate.

[61] An apportionment of 80% and 20% respectively between Steven and Sarah fairly reflects the degree of responsibility each should bear for Lynette’s costs.

Costs of the November 19, 2015, Appearance

[62] As Sarah Bryant points out in her Costs Outline, Steven sought an adjournment of the November 19, 2014, hearing date in order to cross-examine Lynette Burton and to obtain the transcript of the cross-examination of Peter Best, which took place on November 18, 2014.

[63] Over the vigorous objections of the Trustee and Lynette, I granted the request for adjournment.

[64] Mr. Bryant was entitled, pursuant to the Rules of Civil Procedure, to test the evidence provided by the parties’ affidavits. The request for adjournment should have been consented to by the Trustee and Lynette. The failure to do so caused Sarah to incur legal costs for the November 19, 2014, appearance. Sarah should be awarded costs for that appearance.

[65] She claims the sum of $9,375.79. That sum is excessive in my view. The costs should be fair and reasonable, and on a partial indemnity basis only.

[66] I fix her costs at $3,000 plus disbursements, plus H.S.T.

[67] Steven Bryant seeks costs for the November 19, 2014, appearance as well. He seeks “the costs of travel” and “costs thrown away."

[68] Steven apparently had to forego an employment opportunity in order to attend court in Sudbury in November, 2014. No details of his loss were provided. No details of any travel costs were provided either.

[69] In the circumstances, I find that it is fair and reasonable to award Steven costs fixed at $1,500.

Payment of the costs for the November 19, 2014, Appearance

[70] Sarah’s costs and Steven’s costs shall be shared equally by the Trustee and Lynette Burton, personally, and not out of the estate. Notwithstanding that ultimately, none of the evidence obtained from the cross-examinations of the Trustee and Lynette was of assistance to the court, nonetheless the request for adjournment was reasonable and should have been agreed upon.

Order

1. The Trustee shall be entitled to his costs of the motion as follows:

(a) For the fees of the ETDL, the sum of $14,600, plus H.S.T.;

(b) For the fees of his legal counsel, the sum of $29,566, plus H.S.T.

2. The costs set out in paragraph 1 shall be borne by Steven Bryant and Sarah Bryant, on the basis of 70% and 30%, respectively.

3. The costs set out in paragraph 1 shall be payable from Steven Bryant’s share and Sarah Bryant’s share of the cash assets of the estate, within 30 days of today’s date.

4. Lynette Burton is awarded the sum of $29,327, plus H.S.T. for her costs of the motion.

5. The costs payable pursuant to paragraph 4 shall be borne by Steve Bryant and Sarah Bryant, on the basis of 80% and 20% respectively.

6. The costs payable pursuant to paragraph 4 shall be payable from Steven Bryant’s share and Sarah Bryant’s share of the cash assets of the estate, within 30 days of today’s date.

7. Sarah Bryant shall have her costs of the adjournment, in the amount of $3,000 plus disbursements and H.S.T.

8. The costs payable pursuant to paragraph 7 shall be shared equally by the ETDL and Lynette Burton and shall be paid within 30 days of today’s date.

9. Steven Bryant shall have his costs of the adjournment, in the amount of $1,500 plus H.S.T.

10. The costs payable pursuant to paragraph 9 shall be shared equally by the ETDL and Lynette Burton and shall be paid within 30 days of today’s date.

The Honourable Madam Justice Louise L. Gauthier

Date: March 23, 2015