SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-14-61002 – 14-29418ES
DATE: 2015/11/12

RE: Eileen Tierney and Beverly (Tierney) Brown, Estate Trustees, Applicants

AND

Keith Tierney, Clifford Tierney, Michelle Bourque, Albert Bourque, Lisa Bourque, Claire Bourque, Tracy Buffalo, and Roger Bourque

Respondents

(moving parties)

BEFORE: Mr. Justice C.T. Hackland

COUNSEL:
Marcia A. Green, for the Applicant

D. Larry Segal, for the Respondents

HEARD: In writing

Costs ENDORSEMENT

[1] The Respondents Keith and Clifford Tierney (the moving parties) were successful in their motion to remove a solicitor, Mr. Peart and his firm Nelligan O’Brien Payne as solicitors of record for the estate of the late Lloyd Tierney. The Court’s reasons are to be found at 2015 ONSC 4137.

[2] As the moving parties succeeded on the motion, they are entitled to their costs. There were no Rule 49 offers. There was no misconduct on the part of either party. I have considered that the moving parties endeavoured to obtain this relief by several written requests and a non-Rule 49 offer dated two months prior to the argument of the motion. These costs will be on the normal partial indemnity scale.

[3] The moving parties claim fees of about $23,000 (full indemnity) and disbursements of $6,025.41. The estate trustees state that they have incurred fees of roughly $9,000 and argue that the moving parties’ fees are excessive and in part attributable to the over-all passing of accounts, the costs of which have yet to be decided.

[4] In my opinion, the moving parties’ fees are somewhat in excess of what the estate trustees would reasonably expect to pay. Moreover, it was not necessary to put before the court the massive record that was filed on the motion. I am reducing the photocopy disbursement by 50%.

[5] I award the moving parties fees in the sum of $12,500 and disbursements in the sum of $3,500, plus applicable HST on the said fees and disbursements.

[6] A more difficult question is whether the costs awarded herein should be paid by the Estate Trustees personally, as opposed to the estate. Our Court of Appeal has said that costs of motions in estate matters will now generally follow Rule 57 guidelines and are normally to be paid by the litigants personally rather than by the estate, except in narrow circumstances which do not pertain here. In this case the estate trustees should have agreed to the moving parties’ demands to change estate counsel in the circumstances. A somewhat analogous case is Geister v. Weiland 2011 ONSC 6755.

[7] I exercise my discretion to require the estate trustees Eileen and Beverly Tierney to pay the costs of the motion awarded herein personally, on a joint and several liability basis.

Mr. Justice Charles T. Hackland

Date: at Ottawa, November 12, 2015

COURT FILE NO.: CV-14-61002 – 14-29418ES

DATE: 2015/11/12

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Eileen Tierney and Beverly (Tierney) Brown, Estate Trustees,

Applicants

AND

Keith Tierney, Clifford Tierney, Michelle Bourque, Albert Bourque, Lisa Bourque, Claire Bourque, Tracy Buffalo, and Roger Bourque

Respondents

(moving parties)

BEFORE: Hackland J.

COUNSEL:
Marcia A. Green, for the Applicant

D. Larry Segal, for the Respondents

ENDORSEMENT

Hackland J.

Released: November 12, 2015