Court File and Parties

Court File No.: DC-16-769-ML Date: 2017-03-03 Superior Court of Justice – Ontario

Re: Richard Hudecki, Applicant And: Jane Strubin, Respondent

Before: The Honourable Mr. Justice P. R. Sweeny

Counsel: Sharoon J. Gill, for the Applicant Keith Millikin, for the Respondent

Heard: In writing

Endorsement

Introduction

[1] The applicant seeks leave to appeal from the order of Sloan J. dated November 7, 2016, fixing the costs on a motion, and costs which were reserved from a prior attendance. The motion judge awarded costs fixed in the amount of $11,190.82 payable by the applicant personally.

[2] The order was made after a motion brought by the respondent Jane Strubin (“Strubin”) for an order for directions in the matter of the passing of the accounts of the estate of the late Bernard Hudecki. The applicant, Richard Hudecki (“Richard”), was appointed as the executor of the estate of his father, the late Bernard Hudecki. Richard commenced an application to pass the accounts for his father’s estate.

[3] Strubin’s motion for directions was heard on September 29, 2016 on a regular motions list. Sloan J. granted an order on that day directing a trial with regards to the passing of the accounts of the estate. Subsequent to delivering that decision, Justice Sloan invited written submissions on costs with respect to the motion on September 29, 2016 and a December 3, 2015 appearance for which costs have been reserved to the judge hearing the application or motion for direction.

[4] Sloan J. received written submissions from the respondent, the applicant, and reply submissions from the respondent to the applicant’s submissions. He thereafter made his order.

Test for Leave to Appeal

[5] The order of Sloan J. was a costs award on interlocutory motions. This is not a case where the applicant seeks leave to appeal costs to an appeal court under section 133(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. The applicant must show more than simply that the motion judge acted on a wrong principle, misunderstood significant facts or made the determination in a non-judicial manner (see The Children’s Aid Society of the Niagara Region v. R.DeG., 2005 ONSC 11187). The applicant must also meet the test for granting leave to appeal.

[6] The test for granting leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted.

[7] Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted.” A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 ONSC 7405, 7 O.R. (3d) 542 (Div. Ct.).

[8] Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., 2003 ONSC 40868, [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 1992 ONSC 7652, 8 O.R. (3d) 282 (Gen. Div.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 1986 ONSC 2749, 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 1988 ONSC 4842, 65 O.R. (2d) 110 (Div. Ct.).

Analysis

[9] The awarding of costs is an exercise of discretion. The motion judge received submissions from both parties. He did not award substantial indemnity costs. He fixed the costs at 70 percent of the costs as claimed by the respondent.

[10] As Sachs J. held in Berry v. Scotia Capital Inc., 2010 ONSC 1948, at paragraph 13:

To satisfy the “conflicting decision” requirement of Rule 62.02(4)(a), there must be a difference in principle that has guided the motion judge’s exercise of discretion. Where there are conflicting decisions in Ontario or elsewhere on a matter of law of general importance, it is desirable that it be referred to a higher court to deal with the apparent conflict. (Brownhall v. Canada (Ministry of National Defence) (2006), 2006 ONSC 7505, 80 O.R.(3d) 91 (Ont. S.C.J.))

[11] There is authority to award costs against an estate trustee personally and not to be recovered from the estate in estate litigation.

[12] In this case, the applicant cannot establish that there is any conflicting decision of another judge or court in Ontario with respect to this exercise of discretion. Accordingly, the applicant has not met the test under Rule 62.02(4)(a).

[13] In Berry v. Scotia Capital Inc., Sachs J. observed at para. 18, that in cases where the costs award are substantial, the higher amount may:

...justify careful scrutiny to ensure that it does not offend any of the proper principles regarding costs. Awards that on their face stand out as “outliers” raise a concern about whether the fundamental principle of reasonableness was followed. A failure to follow that overriding principle “can produce a result that is contrary to the fundamental objective of access to justice…the chilling effect of a costs award of the magnitude of the award in this case generally exceeds any fair and reasonable expectation of the parties. (Boucher, supra, at para. 37.)

[14] In this case, the award of costs is not so substantial that it warrants careful scrutiny. The motion judge’s determination of the costs to be paid personally arises out of his assessment of the conduct of the applicant. This does not raise an issue of access to justice. It does not raise a matter of public concern or importance. While I would accept that the award of costs is a significant matter for the applicant, it does not invoke questions of general or public importance relevant to the development of law or the administration of justice.

[15] Therefore, the motion for leave to appeal is dismissed.

[16] There was no responding material delivered from the respondent. Accordingly, there will be no order as to costs.

SWEENY J. Date: March 3, 2017