CITATION: Leblanc v. Carman, 2016 ONSC 2165
COURT FILE NO.: 4318/12 and 4578/13
DATE: 2016 0330
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: The Estate of Doris Mary Carman, Deceased
Heather Aileen Leblanc, Applicant
AND:
Clarence Bennett Carman, Respondent
AND BETWEEN:
The Estate of Doris Mary Carman, Deceased
Clarence Bennett Carman, Applicant
AND:
Heather Aileen Leblanc, Respondent
BEFORE: Trimble J.
COUNSEL: K. Watters, Counsel for the Applicant
R. Allegra, Counsel for the Respondent
COSTS ENDORSEMENT
Background:
[1] In my Reasons for Judgment of February 11, 2016, in which I discharged both siblings (Clarence Carman and Heather LeBlanc) as trustees of their late mother’s estate and appointed a new trustee, I invited submissions as to who should pay whom costs and in what amount. These are my reasons for making no order as to costs.
[2] Carman says that LeBlanc should pay his costs, on a partial indemnity basis of $35,182.30, inclusive of fees, disbursements and HST. He says that he was successful in receiving an order that he be paid approximately $38,000 in disbursements he paid on behalf of the Estate.
[3] LeBlanc says that Carman should pay her costs on a substantial indemnity basis of $47,705.83, inclusive of fees, disbursements and HST. She says that she was successful in removing Carman as trustee. She says that Carman’s conduct during the last 4 and one half years justifies the substantial indemnity level of costs.
[4] In assessing costs, I have considered s. 131 of the Courts of Justice Act, Rules 49 and 57.01 of the Rules of Civil Procedure, and the jurisprudence. Costs awards have a number of purposes, three of which are to indemnify (partly) successful litigants, encourage settlement and correct behaviour of the parties (see 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, at para. 10), and generally costs should follow the event (see Bell v. Olympia & York (1994), 1994 CanLII 239 (ON CA), 17 O.R. (3d) 135 (C.A.)). Costs should to be proportional to the issues in the action and the outcome, and reasonable for the losing part to pay, all circumstances considered (see Boucher v. Public Accountants, (2004) 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) and Moon v. Sher et al., 2004 CanLII 39005 (ON CA), [2004] OJ No 4651 (C.A.). Offers to settle must also be considered. Conduct of the parties is also relevant, where it deserves sanction (see Davies v. Clarington (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.).
[5] In this case, a number of offers to settle passed between the parties. Given that I discharged both trustees, none of either party’s offers were equally or more favourable to the offering party thereby entitling the offering party to a higher level of costs under Rule 49.10.
[6] In most litigation, one party “loses” and the other “wins”. In estates litigation where the issue is replacing the trustee, there is a third option, namely, of appointing an institution, as I did in this case. Therefore, in this case, neither party succeeded, in any significant way. Both were successful in having the other removed as trustee, but neither was successful in remaining as trustee. Carman says that he was successful in obtaining the order that he be paid $38,000 in disbursements, although this was agreed to well before the hearing date. His real request was for the payment of fees was deferred pending his passing his accounts after the trustee is appointed. LeBlanc says that she was successful as she requested that Carman pass his accounts. This too was minor given her main goal of removing Carman and leaving her as trustee.
[7] The largest issue in my assessment of costs is the conduct of the parties. I commented at length about Carman’s abusive conduct and unfounded positions. I also commented that LeBlanc did not move promptly to break the deadlock between the trustees. While she did bring her motion, she allowed it to languish. Neither trustee met its obligations to both of the beneficiaries. In all of the circumstances, neither party should have their costs.
Trimble J.
Date: March 30, 2016
COURT FILE NO.: 4318/12 and 4578/13
DATE: 2016 03 XX
ONTARIO
SUPERIOR COURT OF JUSTICE
The Estate of Doris Mary Carman, Deceased
Heather Aileen Leblanc, Applicant
AND:
Clarence Bennett Carman, Respondent
AND BETWEEN:
The Estate of Doris Mary Carman, Deceased
Clarence Bennett Carman, Applicant
AND:
Heather Aileen Leblanc, Respondent
COSTS ENDORSEMENT
Trimble J.
Released: March 30, 2016