SCHLEIHAUF ESTATE, 2015 ONSC 449

COURT FILE NO.: 7337/14

DATE: 20150120

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: IN THE ESTATE OF MILDRED BYRL SCHLEIHAUF, (also known as Byrl Schleihauf) Deceased

BEFORE: The Honourable Mr. Justice John A. Desotti

COUNSEL: PAUL COUREY, Counsel for the Applicant, Karen Vanderzweerde

ROBERT GRAY, Agent Solicitor for the Salvation Army

HEARD: Written Submissions

ENDORSEMENT

A. Costs Sought By the Parties

[1] The parties now seek a more formal determination of costs after my decision with respect to trustee compensation. The objector, Wendy Thompson seeks, in addition to the $2,500.00 that I had ordered at the hearing, an additional award of costs in the amount of $2,700.00. This amount is stated to be for her lost income for her attendance in court.

[2] Counsel for the ‘The Salvation Army’ is seeking costs in the amount of $23,242.60 or an additional sum of $6,512.60 to that which had already been claimed of $16,730.00. In fairness, the sum that had been claimed did not include the costs of the hearing and now counsel for ‘The Salvation Army’ claims costs for that attendance at a sum of $2,825.00 inclusive of disbursements and H.S.T., which is subsumed within this $23,242.60 amount.

[3] The solicitor for the Estate Trustee is seeking an award of costs of $9,000.00 plus disbursements and H.S.T., which is an additional sum of $4,000.00 to that which I awarded at the hearing of this matter. There is no issue with the $400.00 award of costs to June Laurie.

[4] In considering both a blended cost order as reflected in the decision of Madame Justice Gillese in McDougald Estate v. Gooderham, and the most recent decision on costs in the Ontario Court of Appeal decision in Bank of Nova Scotia v. Daniel A. Diemer o/a Cornacre Cattle Co., I cannot agree that the cost awards must reflect simply the work on a file whether or not the results are excellent.

[5] In this case, I agree with the counsel for the Estate Trustee that a total full indemnity recovery on the part of ‘The Salvation Army’ does not reflect a proportional economic approach to litigation. In this case, I would discount the nature, extent and value of the assets as a factor as I consider that reality to be fairly straight forward, as reflected in the factum filed by ‘The Salvation Army’ (see Federal Business Development Bank v. Belyea and those factors endorsed by the Ontario Court of Appeal in Bank of Nova Scotia v. Diemer).

[6] Likewise, I see no serious complications or difficulties in ascertaining the Trustee’s disconnect in the way she managed her duties. What I do find troubling is the amount of time that is claimed was spent by counsel (two counsel were retained in this file) to discover and present the mismanagement to the court.

[7] While I am sympathetic to the claim by Ms. Thompson, I believe the aforementioned cost award of $2,500.00 was my attempt to provide her with a measure of costs for her involvement in her objection.

[8] Finally, I have a little more sympathy to the presentation by counsel for the Estate Trustee who marshalled the matter before me and frankly was caught between a rock and hard place in trying to convert mould into cheese.

[9] In the result, I am awarding costs to June Laurie in the amount of $400.00 and as well costs to Wendy Thompson in the amount of $2,500.00. I am awarding costs to counsel for ‘The Salvation Army’ in the amount of $16,000.00 inclusive of disbursements and H.S.T. and to counsel for the Estate Trustee I am awarding costs of $7,500.00 plus disbursement sand H.S.T.

“Justice J.A. Desotti”

The Honourable Mr. Justice John A. Desotti

Date: January 21, 2015