COURT FILE NO.: 01-2747/15

DATE: 20180516

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE ESTATE OF JOHN MITCHELL NEWLANDS, deceased

BETWEEN:

JOAN ELIZABETH FELKAI and BRIAN CULLEY NEWLANDS in their capacities as CO-ESTATE TRUSTEES OF THE ESTATE OF JOHN MITCHELL NEWLANDS (deceased)

Applicants

– and –

JOHN EDWARD NEWLANDS, in his capacity as CO-ESTATE TRUSTEE and in his beneficial capacity OF THE ESTATE OF JOHN MITCHELL NEWLANDS (deceased)

Respondent

Counsel:

David C. Rosenbaum, for the Applicants

Ian M. Hull and Doreen So, for the Respondent, John Edward Newlands

HEARD: In writing

SPIES J.

REASONS FOR DECISION ON COSTS

Introduction

1Joan Felkai (Joan), Brian Newlands (Brian), and John Edward Newlands (John), are siblings and are the Estate Trustees of the estate of their father, John Mitchell Newlands (the Estate). An application was brought by Joan and Brian as Estate Trustees against their brother John, for advice from this Court with respect to one asset that the applicants alleged was an asset of the Estate; a painting by Antoine Bouvard entitled “Venise, le Palais de Doges” (the Bouvard) which, in the application record, was stated to be worth “approximately $30,000”. The applicants sought a declaration that the Bouvard fell into the residue of the Estate, damages against John related to his alleged breach of fiduciary duty to the beneficiaries of the Estate and negligence and costs of the application from John on a substantial indemnity basis.

2In written reasons released on November 29, 2017; see Newlands Estate, 2017 ONSC 7111 (Decision), I found that John’s position on the application should prevail. Specifically I found that the Bouvard was not an asset of the Estate and I granted judgment to John declaring that Joan and Brian as Estate Trustees were obliged to convey ownership of the Bouvard to John personally, upon receipt of a full and final payment from John in an amount of $30,000.00. I also found that John had not breached his fiduciary duty to the Estate as an Estate Trustee.

3As I set out in my Decision, I am sure that the last thing the parties’ father would ever have wanted or expected is that his three children would come to this Court, two against one, fighting to the point where the intervention of this Court was required. That aside, I am even more certain that he would have been unbelievably disappointed to know that his children had spent almost half a million dollars over a painting worth, on the evidence before me, at most $30,000; the applicants, in their capacities as co-Estate Trustees, had spent $243,636 on a full indemnity basis up to the hearing of the application and John had spent virtually the same amount; $238,702¹. As I said in my Decision, “[e]ven in Estates Court, where emotion often clouds judgment, I have never seen anything even remotely close to this case”.

The Issues

4Now that the application has been decided, I must decide the issue of costs. As John was successful, he is entitled to his costs. The questions I must answer are: 1) is John entitled to costs on a substantial indemnity basis; 2) is John entitled to costs after the applicants made a counter-offer dated February 22, 2017 (February 2017 Counter-Offer); 3) what quantum should I fix for John’s costs; 4) who should pay John’s costs; his siblings or the Estate, and 5) what quantum should I fix for John’s disbursements?

Positions of the Parties

5John seeks substantial indemnity costs against Joan and Brian personally in the amount of $214,832. In the alternative, he seeks partial indemnity costs in the amount of $148,218. The position of Joan and Brian is that John should only receive partial indemnity costs from the start of the proceedings until their February 2017 Counter-Offer and that he should then bear his own costs. Alternatively, it is the position of the applicants that if costs are awarded throughout to John, his costs should be paid on a partial indemnity scale. In their written submissions, the applicants do not challenge John’s position that they should personally pay his costs.

History of Proceedings, Exchanges of Offers and Findings of Fact

6Ms. Whaley, original counsel for Joan and Brian, sent a “With Prejudice - Letter Before Action” dated April 5, 2016 to counsel for John. This letter stated that the Bouvard was appraised at a value of $30,000 as at April 1, 2014 and demanded it be delivered to her office within 48 hours failing which an application would be brought for its return and in that event costs would be sought against John on a full indemnity basis.

7By letter dated June 10, 2016, from Mr. Hull to counsel for the applicants, sent before this litigation commenced, John offered to pay the Estate $30,000 for the Bouvard (John’s Original Offer). The letter stated John’s position that the Bouvard was given to him by their father on the condition that he pay the appraised value of the Bouvard, which is exactly what I found to be the case in my Decision. The letter went on to deal with the other issues that John had with the administration of the Estate but they were not subject to a formal offer. The letter concluded that if a detailed administration report was not received in ten days that John would commence an application for the advice and direction of the court.

8I was not made aware of any formal response to John’s Original Offer. Implicitly it was rejected when Joan and Brian issued their Notice of Application on June 21, 2016.

9By letter dated July 25, 2016, Mr. Hull advised Ms. Whaley that John’s position was that the title of proceedings of the application should be changed to include the applicants in their personal capacity and that as he had advised in his letter of June 24, 2016², John would be seeking costs against the applicants personally “for these disproportionate court proceedings”. He went on to state:

Should your clients’ …[dispute this position] we will rely on the principle that “parties cannot treat the assets of an estate as a kind of ATM bank machine from which withdrawals automatically flow to fund their litigation” (Salter v. Salter Estate, 2009 CanLII 28403 (ON SC), [2009] O.J. No. 2328 (Sup. Ct.)), or “hide behind the label ‘estate trustees’” (O’Donovan et al. v. O’Donovan et al. 2010 ONSC 2608)…

10By letter dated July 28, 2016, Ms. Whaley advised Mr. Hull that the applicants were not willing to amend the title of proceedings to include them in their personal capacity. She took the position that the applicants were endeavouring to call in an asset of the Estate in their capacities as co-Estate Trustees. She went on to state that:

the practice in Estate litigation often favours ordering the costs of all parties to be paid out of the Estate in circumstances such as this matter where such litigation was reasonably necessary to ensure the proper administration of the Estate. (Spiers v. English, [1907] P. 122). In any event, insight regarding costs will not be available to the Parties until the Court hears the Application on its merits. Our clients are not willing to adjust the title of proceedings. [Emphasis in original]

11On August 4, 2016, Justice Penny made an Order Giving Directions (OGD) with respect to this application which included a term that the parties attend a mediation on or before October 15, 2016, which was to deal with the Bouvard and any issues relating to the administration of the Estate. The OGD provides that if the application was not settled at the mediation that cross-examinations take place within 90 days of the failed mediation and that a date be set for a two-hour hearing. The OGD also provides that fees of the mediator be paid out of the Estate in the first instance subject to a final determination by the judge disposing of the application. In addition the costs of and incidental to the application, including the attendance before Penny J., were reserved to the judge disposing of the application. The mediation took place on October 3, 2016 but was not successful. This means that the cross-examinations were to be completed before January 1, 2017.

12After the commencement of this proceeding, John made five offers to settle dated October 7, 2016, December 14, 2016, January 31, 2017, April 17, 2017 and August 3, 2017 respectively. These offers included terms unrelated to the Bouvard. The respondent calls these “global offers” that dealt with the administration of the Estate including the payment for the carpets, the remaining personal items, the hotchpot issues against him, and a schedule to wind-up the Estate.

13John’s first offer after the commencement of the application was served just after the failed mediation and was set out in Minutes of Settlement (Minutes) and a Full and Final Mutual Release dated October 7, 2016 (October 2016 Offer). The Minutes included a term that John pay the Estate $30,000 for the Bouvard to be satisfied by a $20,000 reduction from his interim distribution. The recitals to the Minutes of Settlement state that the issue of the hotchpot clauses was raised as a contentious issue at the mediation and the Minutes went on to deal with that and various other issues. These Minutes provided that the application be withdrawn and that everyone bear their own costs. I am not in a position to comment on the reasonableness of the terms of these Minutes save for the offer with respect to the Bouvard clearly was. There was no express term in the Minutes as to whether or not the terms were severable or not.

14By letter dated November 25, 2016, counsel for the applicants sent a counter-offer which was set out in revisions they made to the October 2016 Offer. The cover letter stated expressly that the terms of the Minutes as revised were “non-severable”. In the revisions the applicants offered that John pay them each the sum of $10,000 for the Bouvard rather than John paying the Estate $30,000 as he had proposed.³ This is an interesting revision given the applicants had taken the position as Estate trustees that the Bouvard was an asset of the Estate. The applicants further revised the terms of the October 2016 Offer so that John had to pay them cash rather than through a reduction of his share of the Estate. Presumably this was to ensure that the Bouvard was not considered an asset of the Estate. The applicants’ revisions also meant that the settlement would not bind them in their personal capacities and made substantial revisions to the other terms of the October 2016 Offer.

15By letter dated December 14, 2016 (December 2016 Offer), from Mr. Hull to Ms. Whaley, John revoked all prior offers to settle and in particular the October 2016 Offer. The December 2016 Offer stipulated that John would pay $10,000 each, in cash, to Joan and Brian for the Bouvard.

16By letter dated January 31, 2017, Mr. Hull sent counsel for the applicants a response to the revised Minutes of Settlement from the December 2015 Offer, that had been executed by the applicants and sent to him by their counsel on January 5, and 10, 2017. Mr. Hull advised that John was not agreeable to the terms of the revised Minutes of Settlement as the applicants were not prepared to be bound to its terms in their personal capacities which he feared could mean they could bring a new application in their capacity as beneficiaries of the Estate. Mr. Hull then set out a counter-offer (January 2017 Offer), which again provided that John would pay $10,000 each to Joan and Brian for the Bouvard. The offer went on to deal with various other issues and stipulated that the applicants be bound to the settlement in their personal capacities and stated that it was open for acceptance until one minute after commencement of the hearing of the application.

17By letter dated February 22, 2017 to Mr. Hull, counsel for the applicants responded to the January 2017 Offer. The letter states in part:

As we have advised you on several occasions and in accordance with the Order of the Honourable Mr. Justice Penny dated August 4, 2016, the within proceeding, as constituted, relates to and only to ownership of the “painting”.

Correspondingly, our clients have amended the Minutes of Settlement and Releases to address the issue of ownership of the painting; the only issue in dispute in the within application.

Our clients have executed the Minutes of Settlement and Releases not only as estate trustees but also in their personal capacities vis-à-vis the painting. As such, our clients now take the position that the matter of ownership of the painting has been satisfied and as previously mentioned are not interested in pursuing any matters outside the bounds of the agreed mediation terms, again, the painting.

18The revised Minutes of Settlement (the February 2017 Counter-Offer) were attached to this letter and appear to be a marked up copy of the respondent’s January 2017 Offer. In the revised Minutes of Settlement of the February 2017 Counter-Offer, all paragraphs related to carpets, personal items, the administration and wind-up of the Estate were struck out, as was the paragraph regarding John’s payment to Joan and Brian for the Bouvard. The revised terms consented to the release of the Bouvard to John and provided that the application be withdrawn without costs and that the parties bear their own costs. The Limited Mutual Release in Schedule A provided a release by the parties with respect to the Bouvard only. The February 2017 Counter Offer was never withdrawn by the applicants.

19In the meantime, since the applicants did not agree to attend cross-examinations in accordance with the OGD, John obtained an order from Hainey J. dated March 14, 2017 which fixed dates in April 2017 for the cross-examination of Joan and Brian on their affidavits filed in support of the application. This order also provided that the costs of the examinations, not including legal fees, be paid out of the Estate in the first instance subject to the judge hearing the application and also adjourned the issue of costs of the motion to the adjudication of the application.

20An email from Mr. Hull to counsel for the applicants dated April 7, 2017 confirmed that all written and verbal offers to settle made to that date “are hereby revoked.” This is the start of a ten-day period where there was no open offer to settle from John. John’s April 17, 2017 offer served 10 days later (April 2017 Offer) was left open until one minute after the start of the hearing of the application before me. Similar to the December 2016 Offer, in the April 2017 Offer John sought ownership of the Bouvard after paying $10,000 each to Joan and Brian. Also similar to the December 2016 Offer, other terms dealt with the carpets, personal items, and the administration and wind-up of the estate, and provided that Joan and Brian would pay John $45,000 in costs.

21An order by Myers J. dated June 1, 2017 set the date by which the applicants were required to provided their answers to undertakings, a date for the cross-examination of John, peremptory on the applicants (as they had failed to schedule the cross-examination in accordance with the orders of Penny J. and Hainey J.,) and adjourned the date for the hearing of the application to August 16, 2017. Costs of this attendance were adjourned to the judge hearing the application.

22In John’s last offer to settle the application on August 3, 2017 (August 2017 Offer), he sought ownership of the Bouvard after paying $30,000 to the Estate and included a term with respect to amounts he was reimbursed from assets of the Estate as a result of various orders of this Court and that Joan and Brian personally pay John $75,000 in costs. The August 2017 Offer expressly stated the April 2017 Offer was not revoked, that the terms were non-severable, and that both the April 2017 Offer and the August 2017 Offer remained open until one minute after the start of the hearing before this Court.

Analysis

Is John Entitled to Costs on a Substantial Indemnity Basis?

23John seeks substantial indemnity costs throughout this proceeding from Joan and Brian, personally, relying on his submission that Joan and Brian were “blameworthy and patently indefensible” when they rejected John's Original Offer, particularly as the applicants agreed that the appraised value of the Bouvard was $30,000 as reflected in their Letter Before Action and in their grounds for their application. John also relies on my finding that it was clear "other issues have divided Joan and Brian on the one hand from John on the other, resulting in this extremely costly battle". John’s submissions raise two issues: 1) do I have the authority to award him costs on a substantial indemnity basis because of the offers that he made to settle the issue of the Bouvard and/or 2) does the conduct of the applicants in bringing this application justify an order for costs on a substantial indemnity basis?

24As submitted by the applicants, John’s Original Offer was not an offer to settle within the meaning of rule 49 of the Rules of Civil Procedure as it was made before the application began; see Scanlon v. Standish (2002), 2002 CanLII 20549 (ON CA), 57 O.R. (3d) 767 (Ont. C.A.), at paras. 8, 22. The applicants acknowledge, however, that this Court has broad discretion to consider pre-litigation offers with respect to costs. I agree with the view of the court in Brough and Whicher Ltd. v. Lebeznick, 2017 ONSC 1392, at para. 20 that a pre-litigation offer is relevant to the consideration of costs as it can demonstrate whether a party was prepared to be reasonable from the outset. Clearly John’s Original Offer demonstrates he was prepared to be reasonable with respect to the Bouvard before the application was brought.

25However, rule 49.10 (2) provides that if a respondent is successful in making an offer to settle that is not accepted by the applicants, the respondent is only entitled to costs on a partial indemnity basis. The respondent submits that John’s Original Offer was an offer to settle that the applicants rejected and that this Court has broad discretion to consider any offer in deciding to award John the substantial indemnity costs award he seeks, relying on S & A Strasser Ltd. v. Richmond Hill (Town), 1990 CanLII 6856 (ON CA), [1990] O.J. No. 2321 (Ont. C.A.), at paras. 5-7, 11.

26In S & A Strasser, Carthy J.A. said:

[6] … the general language of rule 57.01…, defining the principles for the award of costs, leaves no doubt as to the ambit of discretion. It [rule 57.01(1)] reads in part:

... the court may consider, in addition to the result in the proceeding and any offer to settle made in writing ...

[9] We heard the submissions of counsel for the defendant as to why this case did justify solicitor-and-client costs on general principles, but I cannot see anything identifying a reason for an expression of the court's disapproval of the plaintiff's conduct such as is discussed in Foulis v. Robinson, 1978 CanLII 1307 (ON CA), 21 O.R. (2d) 769, 8 C.P.C. 198, 92 D.L.R. (3d) 134 (C.A.) and Isaacs v. MGH International Ltd. (1984), 45 O.R. (2d) 693, 4 C.C.E.L. 197, 7 D.L.R. (4th) 570, 3 O.A.C. 301 (C.A.).

[10] The plaintiff sought $1 million in its statement of claim, scaled that down to some $70,000 just prior to trial and the trial judge found no basis upon which to support the plaintiff's contention as to legal liability. He even said that if he had had to make a finding of credibility it would have been against the plaintiff. None of this seems unusual enough to attract the imposition of penalties for general conduct.

[11] However, I do see reason for a bonus in making an offer of $30,000 in the face of a claim which subsequently reduced itself to $70,000 and resulted in a dismissal of the action. That bonus should be related to the offer and its date and, based upon the general principles enunciated in rule 57.01, I would award solicitor-and-client costs to the defendant following the date of the offer and party-and-party costs up to that date. [Emphasis added]

27The case at bar is not a case where the applicants made allegations of fraud against John but in Standard Life Assurance Co. v. Elliott, [2007] O.J. No. 20131 (Sup. Ct.), Molloy J. held:

[9] Costs on a partial indemnity basis are the norm and are awarded on that scale in the vast majority of cases. The situations in which costs on a substantial indemnity basis are appropriate are rare. However, one of the situations in which such an award is appropriate is where one party to the litigation has behaved in an abusive manner, brought proceedings wholly devoid of merit, and unnecessarily run up the costs of the litigation…[citations omitted]

[10] In exercising discretion as to an appropriate costs award, it is relevant to take into account "the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding" and "whether any step in the proceeding was improper, vexatious or unnecessary": Rules of Civil Procedure, Rule 57.01(1)(e) and (f).

[15] As a result of the third party proceeding alone, Standard Life will have incurred nearly $40,000.00 in legal fees. This kind of tactical litigation is not conducive to the legitimate settlement of disputes in our judicial system. On the contrary, it is exactly the kind of conduct that makes litigation so prohibitively expensive that legitimate disputes cannot be litigated. It is appropriate in this kind of situation to discourage such conduct by imposing stiff costs consequences. As was stated by my colleague, Stach J. in Benquesus v. Proskauer, Rose, LLP (at para. 17):

One of the legitimate functions of the costs system is to discourage frivolous and unnecessary litigation. Doing so in the proper case enhances access to the justice system for other litigants

[16] In view of all of the circumstances, I consider an order for costs at the substantial indemnity level to be appropriate.

[Emphasis added]

28Cases from our Court of Appeal however, relied upon by the applicants, suggest this Court’s discretion may be more limited. In Davies v. Clarington (Municipality), 2009 ONCA 722, the Court stated:

[40] In summary, while fixing costs is a discretionary exercise, attracting a high level of deference, it must be on a principled basis. The judicial discretion under rules 49.13 and 57.01 is not … so broad as to permit a fundamental change to the law that governs the award of an elevated level of costs. Apart from the operation of rule 49.10, elevated costs should only be awarded on a clear finding of reprehensible conduct on the part of the party against which the cost award is being made. As Austin J.A. established in Scapillati, Strasser should be interpreted to fit within this framework -- as a case where the trial judge implicitly found such egregious behaviour, deserving of sanction.

[45] Of course, a distinction must be made between hard-fought litigation that turns out to have been misguided, on the one hand, and malicious counter-productive conduct, on the other. The former, the thrust and parry of the adversary system, does not warrant sanction: the latter well may. In Apotex v. Egis Pharmaceuticals, 1991 CanLII 2729 (ON SC), 4 O.R. (3d) 321, [1991] O.J. No. 1232 (Gen. Div.), substantial indemnity costs were justified as a means [at para. 8] "to discourage harassment of another party by the pursuit of fruitless litigation . . . particularly where a party has conducted itself improperly in the view of the court". For other examples of abuses of process leading to elevated costs, see Dyer, at pp. 184-85 O.R.

[47] Apotex (1990) does not assist Blue Circle in trying to make out a case for misconduct on the part of the settling defendants. That case involved meritless claims of fraud, deceit and dishonesty based on pure speculation. First, the trial judge did not make such a link between this case and Apotex (1990) on this basis. Second, unsubstantiated allegations of the nature advanced in Apotex (1990) represent a form of egregious conduct commonly accepted as a basis for attracting a higher costs award: see 131843 Canada Ltd. v. Double "R" (Toronto) Ltd., [1992] O.J. No. 3879, 7 C.P.C. (3d) 15 (Gen. Div.); Réno-Dépôt Inc. v. Wonderland Commercial Centre Inc., [2008] O.J. No. 4678, 2008 ONCA 786 (award of costs on a substantial indemnity basis warranted only from the point in time when allegations of fraud and dishonesty were made). This is not the nature of the allegations made against the settling defendants.

[Emphasis added]

29In the same vein, in St. Elizabeth Home Society v. Hamilton (City), 2010 ONCA 280, the Court of Appeal stated:

[92] However, later decisions of our court have stressed that Strasser should be applied narrowly. In Davies v. Clarington (Municipality), 2009 ONCA 722, 312 D.L.R. (4th) 278 (Ont. C.A.), this court carefully reviewed the jurisprudence since Strasser and concluded, at para. 40, that Strasser should be interpreted as “a case where the trial judge implicitly found such egregious behavior” on the part of the plaintiff that an award of substantial indemnity costs was warranted. It does not, as the respondents suggest, represent a change in the law that solicitor and client costs are only awarded in rare and exceptional cases. (See also Scapillati v. A. Potvin Construction Limited, 1999 CanLII 1473 (ON CA), 44 O.R. (3d) 737 (C.A.) and McBride Metal Fabricating Corp. v. H. & W. Sales Co., 2002 CanLII 41899 (ON CA), 59 O.R. (3d) 97.)

30I appreciate that the applicants did not make express allegations of fraud, deceit and dishonesty against John and so the traditional basis for an award on a solicitor client basis does not apply. However I do not understand the law to limit my discretion to award solicitor client costs to only cases where unsubstantiated allegations of fraud, deceit and dishonesty have been made. It has been repeated in a number of cases that the trial judge in Strasser said "I think this case, in these circumstances, screams for solicitor-and-client costs.”⁴ Furthermore, rule 57.01 (4) gives me authority to award all or part of the respondent’s costs on a solicitor client basis and rule 57.01 (1) permits me to consider any offer to settle and rule 57.01(1) (f) (i) provides that I may consider whether any step in the proceeding was improper, vexatious or unnecessary.

31In my view given the applicants purported to act in their capacity as Estate Trustees, given John’s Original Offer, commencing the application was not reasonably necessary to ensure the proper administration of the Estate. John was prepared to pay the precise amount the applicants’ alleged the Bouvard was worth, with no strings attached including no claim for costs, before the application was commenced. In my view, the decision by the applicants to commence this application is when the administration of the Estate with respect to the Bouvard came off the rails.

32As I said in my Decision, this application was clearly not just about the Bouvard notwithstanding the position the applicants took. I found at para. 78 that: “unfortunately other issues have divided Joan and Brian on the one hand from John on the other, resulting in this extremely costly battle over a painting worth no more than $30,000 and likely worth less”. I also held at para. 93 as follows:

The evidence before me is that there is no higher value for the Bouvard than the $30,000 Appraised Value and in my view had the applicants really been interested in acting in the best interests of the Estate they would have accepted John’s June 10, 2016 Offer [John’s Original Offer] rather than commence this application. It is also clear to me that Joan has no real interest in the Bouvard given that she expressed her interest in it late, given she has made no effort to have it appraised and she has made no offer to pay anything for it at all. The fact that the applicants have spent almost a quarter of a million dollars fighting over a painting worth at most $30,000, and given the insured value, likely significantly less, demonstrates that this application is really being driven by the breakdown in the relationship the applicants appeared to have previously enjoyed with their brother and the unfortunate animosity that has developed between the siblings in the administration of their father’s Estate. John too, no doubt because of the animosity that has developed between him and his siblings has been willing to spend a comparable amount fighting to keep the Bouvard. The application is clearly not just about the Bouvard.

33In my view, there is no other rational explanation for the decision of the applicants, who had access to counsel specializing in estates litigation, to bring this application. Accordingly there is no doubt in my mind that the applicants misused their authority under the will as the majority of the Estate Trustees and that this application was brought as an improper, vexatious and unnecessary proceeding in order to punish John who was the sibling the applicants did not get along with. They improperly used their position as Estate Trustees not only to bring the application but also in an attempt to shield themselves from personal liability. The actions of the applicants, bringing an application where they ran up costs of a quarter million dollars ostensibly to recover a $30,000 painting is shocking and reprehensible. In my view, not ordering them to fully reimburse John for his legal costs would bring the administration of justice into disrepute. Although one might wonder why he did not give up, given the costs he was incurring, at least he was acting with the knowledge that he was trying to protect a gift his father had meant for him.

34My conclusion in this regard is reinforced by other facts. As John submits, it is clear from the title of proceedings that Joan and Brian have wielded and hidden behind the "opinion of the majority". From as early as Ms. Whaley’s letter of July 28, 2016, Joan and Brian took the position that the costs principles intended to deter litigants from treating "the assets of an estate as a kind of ATM bank machine" need not be considered until the merits are determined. Despite Joan and Brian's insistence that their application was only about the Bouvard, they introduced the hotchpot issues at mediation. Accordingly, John maintains that a resolution of the hotchpot issues as well as an estate administration schedule was crucial to his global offers. In turn, Joan and Brian responded to three of his offers by striking out any attempt to deal with the other issues. Furthermore, when the applicants finally made a counterproposal with respect to the Bouvard they demanded payment to themselves personally which was at odds with their position in the application that it was an asset of the Estate.

35The applicants argue that John’s Original Offer did not remain open for acceptance after his October 2016 Offer was served. They also point to the revocation of any prior offers to settle contained in the December 2016 Offer and the April 7, 2017 email, and that the April 17, 2017 Offer again referred to terms that applied to issues unrelated to the Bouvard. I accept that as a matter of law John’s Original Offer was no longer open for acceptance after October 2016. However with every offer made by John, he repeatedly took the position that he would pay $30,000 to the Estate or, when the applicants requested payment directly, that he would pay them each $10,000. Save for the February 2017 Offer by the Applicants, which I will come to, they never attempted to simply allow John to have the Bouvard in exchange for its appraised value. They clearly knew that his position about the Bouvard never changed.

36The applicants also take the position that John was only willing to settle the issue of the Bouvard if they agreed to “contentious terms that were not subject of this application.” Although I appreciate that John’s offers to settle after John’s Original Offer contained other terms, he did not specify that those terms were not severable until his August 2017 Offer. In my view there was no reason why the applicants could not make a clean offer to settle only the issue of the Bouvard and had they done so early on in this litigation then John would have had to accept it or face the costs consequences. In fact, as I will come to, that is exactly what the applicants argue with respect to the February 2017 Order by the Applicants.

37I have also considered the conduct of the parties in this litigation. John argues that each step that he took was intended to avoid and shorten this proceeding while Joan and Brian took reprehensible steps by pursuing their claims in the face of John's Original Offer and by failing to comply with the timetable set out in the OGD. To the extent I have information about the conduct of the parties prior to the hearing of the application, I agree with this submission. John was compelled to bring a motion to fix a date for the cross-examinations of the applicants despite the timetable in the OGD, which was brought after writing to Joan and Brian numerous times and after Certificates of Non-Attendance were issued. Even once dates for those cross-examinations were set by the order of Hainey J., they did not proceed and the order of Myers J. was needed. Based on the correspondence that I have reviewed, counsel for the applicants advised that Joan could not attend for cross-examination because she was in “extremely ill health”. When counsel for John challenged this statement and advised counsel for Joan that she was in fact travelling outside of the country for recreational purposes, this was conceded.

38On May 3, 2017, after numerous emails and upon confirmation from counsel, a hearing date was set for July 4, 2017. Two days later, Joan and Brian sought an adjournment. When John refused to consent to an adjournment a Notice of Change of Lawyers was served one week later and John’s counsel was advised that the request was not due to Joan's health as formerly indicated but rather Joan's travels and that Joan was in Europe. Certainly to the extent these tactics forced John to go to court twice to secure compliance with the OGD, those costs should be included in his costs for this application on the same basis; the substantial indemnity scale. Joan and Brian ought to reasonably expect such a sanction since they threatened John with full indemnity costs in the Letter Before Action, and sought substantial indemnity costs in the Notice of Application.

39In summary, in light of the refusal of the applicants to simply accept John’s Original Offer, their decision to bring the application for an improper purpose, their conduct leading up to the hearing of the application, which unnecessarily increased John’s costs and in light of John’s consistent efforts to settle the issue of the Bouvard by paying the Estate $30,000 and the fact that despite their position that the Bouvard was an asset of the Estate the applicants sought to have money for the Bouvard paid to them personally, the only reasonable exercise of my discretion in this case is to award John costs on a substantial indemnity basis. As the trial judge said in Strasser this case, in these circumstances, screams for solicitor-and-client costs. The remaining issue is whether or not John’s right to costs terminated when he did not accept the February 2017 Counter-Offer.

Is John Entitled to Costs after the February 2017 Counter-Offer by the Applicants?

40The applicants admit that the February 2017 Counter-Offer was not a Rule 49 offer because they did not obtain judgment. They submit, however, that pursuant to rule 49.13, even if an offer does not technically comply with the requirements of rule 49.10 or any other rule, the court may still take it into account in determining costs. The applicants cite para. 50 (and I would add paras. 51 to 55] of the Court of Appeal’s decision in Thompson v. Bell Helmets, 1999 CanLII 9312 (ON CA), [1999] O.J. No. 4293 (C.A.) where the Court held:

[50] Rule 49.13 may apply in circumstances where rule 49.10(1) does not. The opening part of rule 49.13 makes this clear. In our view, rule 49.13 gives the trial judge a residual discretion in making an order with respect to costs to take into account any (even a revoked) written offer to settle, the date of the offer and its terms. This discretion is separate from the discretion to award solicitor-client costs under rule 49.10(1) and the discretion referred to by Robins J.A. in Mortimer v. Cameron, supra, which has “traditionally governed the award of solicitor and client costs.” In the context of this case, rule 49.13 permitted the trial judge to consider all three plaintiffs’ offers even though the first two offers were revoked and were thus not open to consideration under rule 49.10(1). [Emphasis added]

[51] The three settlement offers made by the plaintiffs were written offers. Although the first two offers were revoked with the result that Bell could reasonably conclude that those offers were, “off the table,” for rule 49.10(1) purposes, Bell could not, in our view, reasonably conclude that the costs implications of those offers were at an end in light of the provisions of rule 49.13. [Emphasis added]

[52] In our opinion, when the three plaintiffs’ offers, their dates and their terms are taken into account in accordance with rule 49.13, those offers provide a basis upon which the trial judge’s award of solicitor and client costs from the date of the first offer, December 23, 1992 is justified.

[53] All three of the plaintiffs’ written offers to settle would, if accepted, have resulted in a resolution of this action on terms more favourable to Bell than the trial judgment. There was no time from December 23, 1992, the date of the first offer, to November 20, 1995, when the trial began when there was not a written plaintiffs’ offer on the table substantially more favourable to Bell than the trial judgment. Thus, throughout that period, it was open to Bell to settle this action by paying substantially less than the judgment required it to pay.

[54] This application of rule 49.13 is consistent with the policy objectives of Rule 49. These objectives include providing an incentive to plaintiffs and defendants to make settlement offers which represent some reasonable element of compromise: see Walker Estate v. York-Finch General Hospital, 1999 CanLII 2158 (ON CA), 43 O.R. (3d) 461 (C.A.). As circumstances change during the litigation, the settlement positions of the parties may change. That is what caused the plaintiffs to make their three settlement offers.

[55] We do not wish to be taken to have concluded that in all cases where rule 49.10(1) does not apply, sequential offers to settle, if less than the judgment in the case of plaintiffs offers, or more than the judgment in the case of defence offers, will automatically lead to an award of solicitor and client costs from the date of the first offer. Each case will have to be considered having regard to its relevant features and the provisions of rule 49.13, assuming, of course, that rule 49.10(1) does not apply. [Emphasis added]

41I note that the Thompson case also provides further support for my conclusion that John is entitled to costs on a substantial indemnity basis as a defendant who made an offer before the application began and then sequential offers all indicating a willingness to pay the Estate $30,000 for the Bouvard.

42The applicants also rely on Ontario Provincial Council of Carpenters Benefit Trust Funds v. RES Canada Construction (Ontario) L.P., 2016 ONSC 6705, where the Court stated as follows:

[16] The Plaintiff relies on a letter which it sent to Laari on December 1, 2015 which the Plaintiff states was an offer to settle that Laari abandon its motion without costs. The Plaintiff argues that this letter should be given some weight even if it did not comply strictly with Rule 49. The letter clearly sets out the Plaintiff’s position regarding what it would be arguing on the motion and states that the Plaintiff would also be giving notice to the province and the federal government of a constitutional issue. The Plaintiff asked Laari to abandon its motion or alternatively to adjourn its motion to a later date.

[17] On reading the letter, I find that the letter does not comply with Rule 49 as it was open for acceptance for 3 days. Further, the letter does not expressly state that the motion could be withdrawn or abandoned “without costs”. However, the letter can be considered when looking at the issue of costs, as the Plaintiff set out its arguments and the extent to which it felt it needed to go to defend the motion prior to actually expending considerably more legal fees to defend the motion. [Emphasis added]

43The applicants maintain that had John accepted the February 2017 Counter-Offer he would have gained possession of the Bouvard in exchange for nothing. That is true in that the applicants struck the term regarding John’s payment for the Bouvard in the draft Minutes of Settlement. On this basis the applicants argue that they should only be liable for costs until February 22, 2017.

44The respondent frames the February 2017 Counter-Offer by the Applicants as the last of three attempts by the applicants “to strike out any attempt to deal with the other issues” included in his global offers. He argues that Joan and Brian explicitly refused to resolve the estate administration issues and provide a release of the remaining personal items that were already in the parties' possession. John submits that his global offers included the other issues because the applicants raised the hotchpot issues at mediation and that, as a result it was necessary to resolve this issue and the estate administration schedule. John also notes that he was successful in the orders that followed February 22, 2017 where the issue of costs was adjourned, being the orders by Hainey J. and Myers. J.

45If John had raised only his concern that the applicants were not prepared to settle all of the other issues, I would conclude otherwise but as he also submits, by the time of the February 2017 Counter-Offer he had incurred substantial costs, I agree. That is evident from his Costs Outline. Considerable costs were incurred to negotiate and obtain the OGD, preparing the Responding Record, reviewing the Applicants’ Reply Record, preparing for and attending the mediation in October 2016, preparing a Document Brief and reviewing the Applicants’ Document Brief, and preparing the various offers to settle which included draft Minutes of Settlement and Mutual Releases. Although he would not have had to pay the $30,000, in my view, given John’s Original Offer, which if accepted would have avoided all of these costs, it was not reasonable on the part of the applicants to expect him to settle the issue of the Bouvard only and bear his own costs. John was justified for that reason in not accepting the February 2017 Counter-Offer. In my view it does not stop his entitlement to costs or his entitlement to costs on a substantial indemnity basis.

What Quantum Should I Fix for John’s Costs?

46The applicants made no submissions on the reasonableness of the costs claimed by John save that they submit there is no basis for an award of full indemnity costs.

47Factors to be considered by the court in fixing costs are enumerated in rule 57, which states:

57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs.

48The fixing of costs is not a mechanical exercise of calculating hours times hourly rates. The quantum should reflect an amount the court considers to be fair and reasonable for the unsuccessful party to pay in the particular proceeding rather than any exact measure of the actual costs to the successful litigant. The overall objective is to fix an amount that is fair and reasonable. In doing so, I must stand back from the fee produced by the raw calculation of hours spent times hourly rates and assess the reasonableness of the counsel fee from the perspective of the reasonable expectations of the losing party; see Boucher v. Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.) at para. 26, Coldmatic Refrigeration of Canada Ltd. v. Leveltek, 2005 CanLII 1042 (ON CA), [2005] 75 O.R. (3d) 638 (Ont. C.A.) at para. 8, Andersen v. St. Jude Medical, Inc. (2006), 2006 CanLII 85158 (ON SCDC), 264 D.L.R. (4th) 557 (Ont. Div. Ct.), aff'g (2004) 28 C.P.C. (6th) 199 (Ont. S.C.) at para. 22, Greenhalgh v. Douro-Dummer (Township), 2011 ONSC 2064, [2011] O.J. No. 1657 (Ont. C.A.) at para. 7.

49I have reviewed the Costs Outline submitted by John. Mr. Hull was the senior lawyer on the file (1990 call) and he specializes in estate litigation. He spent about 122 hours on the file; most of which was the mediation, the examinations of Joan and Brian and preparing for and attending the hearing of the application. This is where I would expect senior counsel to spend time on this file.

50Mr. Hull was assisted by two lawyers who were called in 2001 and 2002 and three lawyers who were called in 2013. The number of counsel on the file raises a concern about unnecessary duplication. Doreen So, a 2013 call, did the most work on the file; 230 hours. I have reviewed the hours claimed by the other three lawyers and the time spent for each of them totals less than five hours and so I find there was no unnecessary duplication.

51In a footnote to John’s written submissions on costs it is stated that the $214,832 claimed in costs on a substantial indemnity basis is 90% of the total incurred by John, inclusive of HST and disbursements and that $148,218 is partial indemnity (60%) on John’s fees, plus HST and disbursements. It appears that these amounts have been calculated using the total costs incurred by John that are claimed on a full indemnity basis of $238,702, inclusive of HST and disbursements, although I note that the Costs Outline itself only refers to full indemnity rates and amounts for costs..

52The applicants submit that there is no basis for an award of full indemnity costs relying on 1623242 Ontario Inc. v. Great Lakes Copper Inc., 2016 ONSC 1002, at paras. 95-100. One of the cases referred to in that decision is Mazzon v. Wentworth Condominium Corporation No. 102, 2012 ONCA 447 where the Court stated:

[18] The appellants had pleaded fraud. The motion judge determined that the Respondents were entitled to costs on a substantial indemnity scale. The motion judge assumed that the bill of costs submitted by the Respondents was prepared on a substantial indemnity scale and ordered the costs sought in the bill of costs. The Respondents acknowledge that the bill of costs was prepared on a full indemnity basis; the costs ordered amount to full, as opposed to substantial, indemnity.

The Court found that the motions judge erred by ordering full indemnity costs.

53Clearly there is a difference between costs on a substantial indemnity basis and costs that represent full indemnity; see Rule 57.01 (4) (c) and (d). Based on John’s submissions and the reasons I have given, I have awarded costs on a substantial indemnity basis, not on a full indemnity basis. I must therefore consider if 90% of John’s full indemnity costs is the appropriate discount to arrive at costs on a substantial indemnity basis.

54Rule 1.03(1) defines “substantial indemnity costs as 1.5 times the amount of partial indemnity costs. There is no definition in the rules for “full indemnity” but in my view the term speaks for itself-it represents the actual amount billed to the client and that is what I assume it reflects in this case. 1.5 times the partial indemnity amount claimed of $148,218 is $222,327 which is $7,495 more than the amount John claims for costs on a substantial indemnity basis. This calculation presumes that typically partial indemnity costs are awarded at the rate of 60% of full indemnity costs. In my view although there is no hard and fast rule, that it a typical discount. In fact 90% and 60% are the percentages used by the applicants in their Costs Outline.

55The other way to consider this issue is to look at the hourly rate claimed. The full indemnity hourly rate claimed for Mr. Hull is $850 which increased to $875 and for Ms. So, $375 increased to $395. In the Information for the Profession set out with Rule 57, maximum hourly rates on a partial indemnity scale were set out. Those rates were fixed as of July 1, 2005 and must be adjusted for inflation to arrive at an appropriate partial indemnity rate. For Mr. Hull, the maximum rate as of 2005 was $350 per hour and for Ms. So it was $225 per hour.

56Ms. So’s rate claimed in the Costs Outline is reasonable when considering some inflation, as a substantial indemnity rate at 1.5 times $225 would be $337.50. With inflation that rate could easily be $375 per hour.

57As for Mr. Hull’s rate, I have considered whether or not it is too high. $350 times 1.5 is $525. Since 90% of the full indemnity costs are claimed, the actual rate claimed for Mr. Hull’s time on a substantial indemnity basis is between $765 and $788. I note that senior counsel for the applicants for most of the time leading up to the hearing of the application was Ms. Whaley (1990 year of call) and her actual rate/full indemnity rate claimed started at $675 and increased to $700. Mr. Rosenbaum’s (1985 year of call) actual rate began at $743.88 and was at $850 by the time of the hearing of the application. In my view only a modest reduction in the amount of time claimed by Mr. Hull might be warranted to bring his fee, for these purposes, more in line with that of counsel for the applicants. A $100 reduction would result in a $12,200 discount based on the 122 hours claimed for Mr. Hull..

58I have also considered whether or not the Costs Outline claims for time that would not ordinarily be compensable because the costs have been claimed on a full indemnity basis. In addition I have considered whether or not any of the time relates to general Estate matters. I have concluded that all of the time claimed relates to the motion resulting in the OGD, preparation of the responding record and other materials for the application and preparing for and attending the hearing save for time spent on what is described as settlement and preparing for and attending the mediation. About $24,000 in fees was spent on the mediation. The applicants make no comment on this and in my view those fees should be recoverable on a substantial indemnity basis. The mediation was required in accordance with the terms of the OGD. As for the time spent on settlement, that appears to be for preparing the various offers and reviewing the counter-offers of the applicants. That time was in my view also warranted. The offers made by John are one of the reasons why I have decided to award him costs on a substantial indemnity basis. For these reasons I conclude that the time spent as set out in John’s Costs Outline was reasonable and does not include time spent by his lawyers on the Estate generally as opposed to the application.

59Finally I have the advantage of reviewing the applicants’ Costs Outline. It claims $221,063 for fees, disbursements and HST, on a substantial indemnity basis, which is a little more than the amount claimed by the respondent although their disbursements were about $5,000 more.

60In the final analysis, considering an amount that is fair and reasonable for the unsuccessful party; the applicants, to pay in this proceeding, given the applicants were seeking costs on a substantial indemnity scale and given their costs were slightly higher than the respondent’s, I see no reason why they would not consider the amount claimed by John to be fair and reasonable, since I have decided that John is entitled to costs on a substantial indemnity basis. I see no basis to reduce the fees claimed. In any event it appears that there has been a substantial discount made.

61By my calculation the fees claimed by John in the Costs Outline total $229,410 without HST however only $200,185 plus HST is claimed on a full indemnity basis. Using these numbers and applying a 10% discount, I find that John is entitled to recovery of fees on a substantial indemnity basis in the amount of $180,167 plus HST of $23,422 for a total of $203,589.

Who should pay John’s costs; his siblings or the Estate?

62Throughout this lawsuit, John submits that he complied with each step of the OGD within the time required. He was entirely successful in his defence of Joan and Brian's claims and he relies on what he describes as the modern approach to fixing costs in estate litigation as set out by the Court of Appeal in McDougald Estate v. Gooderham, 2005 CanLII 21091 (ON CA), [2005] O.J. No. 2432 as interpreted in Bilek v. Salter Estate. 2009 CanLII 28403 (ON SC), [2009] O.J. No. 2328 (Sup. Ct). John argues that given my finding that considering all the evidence there is no doubt of what was agreed to among the parties and his father, this matter does not warrant an order that costs be borne by all parties through the Estate but rather that substantial indemnity costs should be payable by Joan and Brian, personally. Otherwise, he argues that as the winner of this frivolous lawsuit he will bear at least one-third of his own costs if costs are paid from the Estate.

63In Bilek, D. Brown J., as he then was, stated:

[5] One final point. In his written submissions counsel for Ms. Salter argued that "as a matter of principle and practice the costs of contentious estate matters are generally paid from the estate itself." With respect, that is not a correct statement of the law. As the Court of Appeal made clear in McDougald Estate v. Gooderham [citation omitted] estate litigation, like any other form of civil litigation, operates subject to the general civil litigation costs regime established by section 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, except in a limited number of circumstances where public policy considerations permit the costs of all parties to be ordered paid out of the estate. Those limited circumstances exist where the litigation arose as a result of the actions of the testator or those with an interest in the residue of the estate, or where the litigation was reasonably necessary to ensure the proper administration of the estate: McDougald Estate, paras. 78 to 80.

[6] From a year of acting as administrative judge for the Toronto Region Estates List I have concluded that the message and implications of the McDougald Estate case are not yet fully appreciated. A view persists that estates litigation stands separate and apart from the general civil litigation regime. It does not; estates litigation is a sub-set of civil litigation. Consequently, the general costs rules for civil litigation apply equally to estates litigation - the loser pays, subject to a court's consideration of all relevant factors under Rule 57, and subject to the limited exceptions described in McDougald Estate. Parties cannot treat the assets of an estate as a kind of ATM bank machine from which withdrawals automatically flow to fund their litigation. The "loser pays" principle brings needed discipline to civil litigation by requiring parties to assess their personal exposure to costs before launching down the road of a lawsuit or a motion. There is no reason why such discipline should be absent from estate litigation. Quite the contrary. Given the charged emotional dynamics of most pieces of estates litigation, an even greater need exists to impose the discipline of the general costs principle of "loser pays" in order to inject some modicum of reasonableness into decisions about whether to litigate estate-related disputes.

64In my view, given my finding that John’s Original Offer ought to have been accepted and that the applicants had no business as co-Trustees in launching this application, the only reasonable order to make is that they personally pay the costs I have awarded to John. The application was not reasonably necessary to ensure the proper administration of the Estate and I have found that the applicants brought it for an improper purpose. John should not be faced, in effect, with a ⅓ discount of the amount he is entitled to. This is not a case where costs ought to be paid from the Estate.

What Quantum Should I Fix for John’s Disbursements?

65John claims disbursements in the amount of $11,086 plus HST of $1,407 for a total of $12,493. The applicants submit that the respondent has already been reimbursed out of the Estate pursuant to orders of Justices Penny (the OGD) and Hainey for the following disbursements: mediation deposit of $2,000.00, mediator’s fee of $1,111.26, and Neeson Court Reporting Inc. $3,880.50, plus HST on the foregoing. As for the mediation deposit and mediator’s fee, they submit they should be shared between the parties. They applicants submit that the respondent has been reimbursed for his 50% share of this expense and that the applicants paid their 50% portion themselves and have not reimbursed themselves from the Estate although Justice Penny’s order entitled them to do so. The applicants submit that it would not be fair to require them to pay these amounts again to the respondent.

66First of all I find that John is entitled to his disbursements claimed of $12,493 inclusive of HST. I also find that the applicants are personally responsible for all of his disbursements for the reasons I have already given. This also means that the applicants were not entitled to be reimbursed by the Estate for any disbursements in connection with their application. John as the successful party should not have to pay 1/3 of the disbursements.

67Obviously John should not be paid twice for any of his disbursements. Accordingly whatever amounts the Estate has paid to John do not need to be paid to him again but those amounts must be reimbursed by Joan and Brian to the Estate. This means that to the extent John has already been reimbursed as alleged by the applicants, since that money came from the Estate, the simplest order is that John retain the reimbursement payments made from the Estate and that Joan and Brian then reimburse the Estate the amount that was paid from the Estate to John.

68Furthermore, given my findings, to the extent that Joan and Brian have been reimbursed by the Estate for certain disbursements, those amounts must also be repaid by them to the Estate. This is to be done within 30 days of the release of this decision including giving John an accounting of this.

69To be clear I find that John is entitled to disbursements as claimed although he is not to be paid twice for any disbursement. The applicants are personally responsible for 100% of all of the disbursements incurred in this matter and to the extent the Estate has paid either of them or John any disbursements, Joan and John are jointly and severally personally liable to reimburse the Estate for those amounts.

Disposition

70For these reasons I order that the applicants personally pay John his legal fees on a substantial indemnity basis in the amount of $180,167 plus HST of $23,422 for a total of $203,589. I also order that the applicants personally pay John for his disbursements in the amount of $11,086 plus HST of $1,407 for a total of $12,493; provided amounts already paid by the Estate do not need to be paid to John a second time.

71The applicants are also ordered to personally pay for 100% of all of the disbursements incurred in this matter and to the extent the Estate has paid either of them or John for any disbursements, Joan and Brian are jointly and severally liable to reimburse the Estate for those amounts.

72All amounts owing by the applicants to John and the Estate shall be paid within 30 days of the release of this decision. In addition an accounting of the payments with respect to the disbursements shall be provided by Joan and Brian to John in the same time frame.

Footnotes

1. 1All dollar amounts have been rounded off to the nearest dollar
2. 2I do not believe a copy of this letter was filed with the submissions on costs.
3. 3The offer by John to pay the Estate $30,000 was equivalent in terms of quantum to John paying Joan and Brian each $10,000, as a payment to the Estate would be split evenly three ways.
4. 4Davies v. Clarington (Municipality) et al., supra, at paras. 36, 40, citing S&A Strasser Ltd. v. Richmond Hill (Town) (1990), 1990 CanLII 6856 (ON CA), 1 O.R. (3d) 243 (C.A.).