ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-04-076-0001
45/02-ESTATE
11/03-ESTATE
13/03-ESTATE
DATE: 20151030
B E T W E E N:
THE BANK OF NOVA SCOTIA TRUST COMPANY, ESTATE TRUSTEE DURING LITIGATION OF THE ESTATE OF JOHN EDWARD THORKILDSEN
Stephen F. Waqué, for the Moving Party
Applicant
- and -
BRIAN THORKILDSEN
Robert Kerr, for the Respondent
Respondent
HEARD: August 4, 2015
D E C I S I O N O N C O S T S
WILCOX, J.
INTRODUCTION
[1] The Bank of Nova ScotiaTrust Company, Estate Trustee during litigation of the Estate of John Edward Thorkildsen, (the Applicant) moved for an order vesting certain lands in, and reserving two easements in favor of lands owned by, Brian Thorkildsen, and for an order finding Brian Thorkildsen in contempt of the Order of Boissonneault J. dated August 24, 2009 and imposing a penalty for that contempt.
[2] In result, the Applicant was successful in obtaining an order for the substantial relief requested, but contempt was not found. Written submissions on costs were invited and have been received.
[3] On the subject of costs, section 131 (1) of the Courts of Justice Act provides as follows:
(a) Subject to the provisions of an act or rules of the court, the costs of an incidental to a proceeding or step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.
[4] Modern costs rules are intended to serve three purposes:
To indemnify successful litigants for the costs of litigation
To encourage settlement, and
To discourage and sanction inappropriate behavior by litigants[^1]
[5] Rule 57.01 of the Rules of Civil Procedure sets out the general principals relating to the awarding of costs. In particular, rule 57.01(1) lists factors that may considered in exercising the court’s discretion under section 131 of the Courts of Justice Act.
[6] The Applicant was substantially successful in this matter. Therefore, we start with the presumption that it is entitled to costs. The Applicant also served on July 17, 2015 an offer to settle in the same terms as the court’s decision, which offer was not accepted. Therefore, the Applicant is entitled under rule 49 to partial indemnity costs to July 17, 2015, and substantial indemnity costs from that date, unless the court orders otherwise. The Applicant submits that the costs calculated accordingly total $27,514.38.
[7] The Respondent’s submissions are well founded. In essence, the court found that there was some merit in the Respondent’s position, but that he had not taken timely steps to advance it and the result was more to bring closure to an old dispute than a vindication of the Applicant’s position. If the Respondent had commenced proceedings to deal with the matter on the merits, the result might have been different.
[8] Ultimately, I would fix costs payable by the Respondent to the Applicant within 30 days in the amount of $20,000.00, inclusive of fees, disbursements and taxes.
Justice James A. S. Wilcox
Released: October 30, 2015
[^1]: (Fong and Chang (1999) 1999 2052 (ON CA), 46 O.R. (3d) 330 (Ont.) C.A.) See also (Somers v. Fournier, [2002] O.J. No. 254 (Ont.) C.A.)