Anspor Construction Limited and Nuberg and Dale Construction Limited o/a Nuspor Investments Partnership v. Edie Neuberger and Myra York (Estate Trustees of Chaim Neuberger Estate)

Court File and Parties

COURT FILE NO.: 05-96/14 DATE: 20160727

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF the Estate of Chaim Neuberger, Deceased

BETWEEN:

ANSPOR CONSTRUCTION LIMITED AND NUBERG AND DALE CONSTRUCTIN LIMITED O/A NUSPOR INVESTMENTS PARTNERSHIP Applicants – and – EDIE NEUBERGER, IN HER CAPACITY AS THE NAMED ESTATE TRUSTEE OF THE PRIMARY WILL OF CHAIM NEUBERGER AND IN HER CAPACITY AS THE NAMED ESTATE TRUSTEE OF THE SECONDARY WILL OF CHAIM NEUBERGER AND MYRA YORK, IN HER CAPACITY AS THE NAMED ESTATE TRUSTEE FOR THE PRIMARY WILL OF CHAIM NEUBERGER AND IN HER CAPACITY AS THE NAMED ESTATE TRUSTEE OF THE SECONDARY WILL OF CHAIM NEUBERGER Respondents

Counsel: John J. Adair, for the Applicant, Nuspor Investments Partnership Aaron Blumenfeld, for the Respondent Myra York in her capacity as Estate Trustee Kris Borg-Olivier, for the Respondent, Eddie Neuberger in her capacity as Estate Trustee

Costs Endorsement

L. A. PATTILLO J.:

[1] On June 1, 2016, I granted judgment to the Applicants, which provided, among other things, that Nuspor Investments Partnership (“Nuspor”) was the owner of two Toronto Maple Leafs season tickets (the “Tickets”) which were being held in the name of the Estate of Chaim Neuberger (the “Estate”).

[2] At the conclusion of my reasons, I stated that Nuspor was entitled to costs on a partial indemnity basis and, in the absence of agreement the parties should submit brief submissions and cost outlines. In the absence of agreement, I have received submissions on behalf of each of Nuspor, Edie Neuberger and Myra York.

[3] Nuspor submits that it should receive its costs on a substantial indemnity basis in the total amount of $14,973.64 (fees of $12,993.87 inclusive of HST and disbursements of $1,979.77). In the alternative, it seeks costs on a partial indemnity basis in the total amount of $11,496.07.

[4] Nuspor submits that it is entitled to the higher scale of costs as a result of offers to settle it made to Ms. Neuberger both before the litigation commenced and again prior to cross-examinations whereby it offered to pay $50,000 to the Estate in exchange for a release by the Estate of any claim to the Tickets. Nuspor further submits that the facts which were central to my decision were never really in dispute and were known to Ms. Neuberger. Nuspor also points to what it submits is a “pattern of conduct” by Ms. Neuberger to not accept reasonable offers or engage in settlement discussions. Finally, it acknowledges that Ms. Neuberger did make a counter-offer to share the tickets but submit it was meaningless given the breakdown of the relationship between the parties.

[5] Nuspor’s offers were not Rule 49 offers. Nevertheless, they are relevant to the consideration of costs. In my view, however, in the circumstances of this case, the offers do not give rise to an award of substantial indemnity costs. The Tickets were in Mr. Neuberger’s name and the Estate was entitled to have the issue of who owned them determined. Ms. Neuberger was acting in her capacity as an Estate Trustee. I impute no ill will to her not accepting Nuspor’s offers. In that regard, I accept that she engaged in reasonable settlement discussions. In my view, costs should be on a partial indemnity basis.

[6] Ms. Neuberger takes no issue with the partial indemnity scale or with the time claimed by Nuspor’s lawyer. She submits that $10,000 in total would be a reasonable amount for costs, payable by the Estate.

[7] Mrs. York, who was named as a respondent in her capacity as Co-Trustee of the Estate, took no part in the application. In her cost submissions she takes no issue with the scale of costs or the costs claimed by Nuspor. She submits however that Nuspor’s costs should be paid not out of the Estate (in which she is a co-beneficiary) but out of Ms. Neuberger and her children’s interest in the Estate for three reasons: Ms. Neuberger’s position in the application was substantially advanced on her family’s behalf, not on Mrs. York’s behalf; Ms. Neuberger ought to have investigated and concluded, as Mrs. York did that the Tickets belonged to Nuspor; and Ms. Neuberger should have accepted Nuspor’s offer prior to the litigation commencing.

[8] In Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, the Court confirmed the principle that estate trustees are entitled to be indemnified for all reasonably incurred costs, including legal costs. More recently, the courts have applied the cost rules that apply to civil litigation in estate litigation save and except if the litigation concerns the administration of the estate or an issue attributable to the testator: McDougald Estate v. Gooderham, 199 O.A.C. 203 (Ont. C.A.); Sawdon Estate v. Watch Tower Bible and Tract Society of Canada, 2014 ONCA 101 (C.A.).

[9] Mr. Neuberger, who went to great lengths to ensure that his assets were divided between his two daughters, did not take any steps to clearly indicate who the Tickets belonged to notwithstanding how they were acquired and dealt with over the years. As he is no longer alive to deal with the issue of ownership, the matter had to be resolved by the courts.

[10] In my view, a determination of who owned the Tickets was an Estate issue and Ms. Neuberger, as co-trustee was entitled to have it resolved on behalf of the Estate. The issue was created by Mr. Neuberger.

[11] Ms. Neuberger was sued in her capacity as Estate Trustee. In defending the application she was acting in that capacity. Although she is a beneficiary, I do not consider she was litigating to advance her own interests. There were sufficient facts for her to take the position that the Tickets belonged to the Estate. As a result, I do not consider that Ms. Neuberger, who was joined in her capacity as an Estate Trustee, should have to pay the costs of the application out of her share of the Estate.

[12] The partial indemnity costs claimed by Nuspor are fair and reasonable given the issues. Costs to Nuspor on a partial indemnity basis fixed at $11,496.07 in total, payable by the Estate.

L. A. Pattillo J.

Released: July 27, 2016