Robert W. Evans v. Randy Reid, Nancy Reid, Jeffery Evans and Blake Evans
COURT FILE NO.: ES-1117-15 DATE: 2017-January-13
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Robert W. Evans, Plaintiff – and – Randy Reid, Nancy Reid, Jeffery Evans and Blake Evans, Defendants
Counsel: Paul Morrissey, for the Plaintiff Karen A. Scheri, for the Defendants
Heard: Written Submissions
Costs Endorsement
Justice R. J. Harper
Issues
[1] Robert Evans brought a motion for directions with respect to:
(a) disclosure by the appointed Estate Trustee of the identity of the person or persons to whom monies on deposit in bank accounts on the date of death of Francis Freda Mather passed by proportionate survivorship;
(b) A provision by the Estate Trustee of copies of all documents in their possession relating to the bank accounts of the deceased including documents establishing the bank accounts, establishing as or converting the accounts into joint accounts, and statements disclosing balances in and transactions relating to the said accounts from September 1, 2015 to the present date.
[2] Robert Evans was completely successful on this motion. I found that the moving party had established that he had a bona fide and reasonable claim. I found that it was necessary for the moving party to pursue his claims that the Respondents must disclose the name of the co-owner of the surviving joint tenant of the aforementioned Scotiabank and Bank of Montreal accounts.
[3] I also found that the disclosure must take place forthwith. The strong inference on the evidence before me is that substantial money may have been diverted away from the deceased while she was alive for the personal benefit of persons who were in a fiduciary capacity to Freda and eventually away from the estate to which the Respondents were executors and trustees.
[4] The parties provided written submissions. The moving party indicated that he had served and filed an offer on April 1, 2016. That offer was the same as what was ordered by me. The offer stated that, if accepted prior to May 2, 2016, there would be no costs. If after May 2, 2016, the moving party would seek partial indemnity costs. The offer was open for acceptance until the hearing of the motion on May 12, 2016. The moving party stated that the responding party was put on notice that he would be seeking substantial indemnity costs if the offer was not accepted.
[5] The Responding parties did not respond to the offer nor did they file an offer. The Responding party submits that the cost determination should be left to the judge hearing the trial of the Kitchener action being file number C-444-16. I do not agree. It was necessary for the Applicant to bring the motion in order to properly pursue his claims. This matter was made complex only because of the position taken by the Respondents.
[6] I have reviewed the bill of costs submitted by counsel for the moving party. I find that the rates charged and the time spent are reasonable. Pursuant to Rule 49.10, the moving party made an offer that was as favourable as my ruling and is entitled to partial indemnity costs to the date of the offer and substantial indemnity costs from the date of the offer.
[7] I accept the amounts set out by the moving party on the basis of partial/substantial indemnity split as follows:
Fees $9,113.82 HST on Fee $1,184.79 Disbursements (including HST) $1,439.97
[8] The Respondent shall pay costs to the Applicant in the amount of $11,737.97, inclusive of fees, disbursements and HST.