Court File and Parties
ESTATES LIST FILE NO. 03-10/17
DATE; 20180514
ONTARIO SUPERIOR COURT OF JUSTICE
ESTATES LIST
B E T W E E N:
Joseph Rubner (also known as Yossi Rubner) and Marvin Rubner in their capacity as Joint Attorneys for property acting under a Continuing Power of Attorney for Property granted by Eda Rubner dated January 12, 2003
Applicants
- and -
Alexander Bistricer, Brenda Bistricer, Eda Rubner in her personal capacity, in her capacity as a Trustee of the Bistricer/Rubner Family Trust, and in her capacity as Bare Trustee through Eda Rubner Realty a sole proprietorship in the Lower Fourth Joint Venture, Michelle Levinson, and 975273 Ontario Limited
Respondents
AND BETWEEN:
Mattamy (Sixth Line) Limited, Mattamy (Oak) Limited, Mattamy (Penlow) Limited, 1214850 Ontario Inc., Bratty Building, Mattamy Realty Limited, and Ruland Realty Limited
Plaintiffs by Counterclaim/Respondents
-and-
Eda Rubner, personally, Eda Rubner as sole proprietor of Eda Rubner Realty and as a Trustee of the Bistricer/Rubner Trust a.k.a. the Bistricer/Rubner Family Trust, Joseph Rubner, Alex Bistricer and Michelle Levinson
Defendants by Counterclaim/Moving Parties
BEFORE: F.L. Myers J.
COUNSEL: Arieh Bloom, lawyer for Joseph and Marvin Rubner, in their capacity as joint attorneys for property of Eda Rubner
David S. Steinberg and Justin Nasseri, lawyers for the Brahm Rosen in his capacity as litigation guardian for Eda Rubner
Wendy Greenspoon-Soer, lawyer for Alex and Brenda Bistricer
Jonathan C. Lisus & Ian C. Matthews, lawyers for Mattamy Homes and affiliates
READ: April 30, 2018
COSTS ENDORSEMENT
- The court is asked to grant costs in connection with its endorsement dated March 22, 2018, reported at 2018 ONSC 1934. For the reasons set out in that endorsement, the court:
a. declared, on consent of all members of the Rubner family, that the one-third share of the Rubner family’s 10% interest in Lower Fourth Joint Venture that was previously held in trust for Brenda Bistricer is now owned beneficially by her mother Eda Rubner;
b. denied Brenda Bistricer’s claims that by way of an inter vivos gift from her mother, she owns all past and future income generated from her mother’s interest in the joint venture;
c. denied Brenda Rubner’s application for an order requiring her brothers and their mother’s litigation guardian to account for and repay funds used on behalf of Ms. Rubner after she became incompetent to manage her property;
d. granted an order recognizing that Ms. Rubner had validly gifted funds to Brenda Bistricer prior to Ms. Rubner being found to lack capacity to manage her property;
e. required Alex and Brenda Bistricer to repay to Ms. Rubner, by her joint attorneys for property, sums that they took from Ms. Rubner’s accounts after Ms. Rubner was found to lack capacity;
f. granted Mattamy Homes’ motion to amend its counterclaim to assert a claim for inducing breach of contract against Alex Bistricer;
g. denied Mattamy Homes’ motion to amend its counterclaim to assert a claim for the tort of abuse of process against Alex Bistricer; and
h. dismissed a motion for partial summary judgment brought by Alex Bistricer to try to remove himself from Mattamy Homes’ counterclaim.
- I am also asked by Mattamy Homes (and its co-parties) to award them costs on a substantial indemnity basis against Brenda Bistricer in connection with her motion for summary judgment. Ms. Bistricer abandoned the motion before it came on for hearing.
Costs
The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c)). Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario), 2004 CanLII 14579 (ON CA), (2004), 71 O.R. (3d) 291, at paras 26, 37.
Rule 20.06 provides that the court may order costs payable on a substantial indemnity basis where a party acted unreasonably in moving for or responding to a motion for summary judgment. In Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, the Court of Appeal discussed the nature of the decision concerning enhanced costs as follows:
[43] The applicable principles can be summarized as follows:
a. the fixing of costs is discretionary and the motion judge’s costs award attracts a high level of deference – it should be set aside on appeal only if the trial judge erred in principle or if the award is plainly wrong: see Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27;
b. costs on a substantial indemnity basis should only be awarded “where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties”: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at p. 134; and
c. the kind of conduct that will justify an elevated level of costs is not limited to conduct in the proceedings and can include the circumstances that gave rise to the litigation: Mortimer v. Cameron (1994), 1994 CanLII 10998 (ON CA), 17 O.R. (3d) 1 (C.A.), at p. 23; Clarington (Municipality) v. Blue Circle Canada Inc., 2009 ONCA 722, 100 O.R. (3d) 66, at para. 30.
[44] The motion judge applied these principles. In awarding substantial indemnity costs, he was entitled to consider that the litigation was caused by the appellants’ duplicitous breach of agreements made in settlement of the previous litigation: see Mark M. Orkin, The Law of Costs, looseleaf, 2nd ed. (Toronto: Thomson Reuters, 1987), at §219. He properly had regard to the appellants’ conduct during the litigation, including litigating what was clearly a technical slip, altering a document, and engaging in tactics that increased costs. He considered the appellants’ argument that the respondent had increased the costs by asserting claims that were ultimately abandoned and gave reasons for rejecting it.
Mattamy Homes and Brenda Bistricer – Abandoned Summary Judgment Motion
Mattamy Homes seeks costs on a substantial indemnity basis against Brenda Bistricer on the basis that her motion for summary judgment was not reasonably brought. However, she abandoned the motion once she received Mattamy Homes’ material and saw that her motion could not survive an assessment of the litigation as a whole. In my view, costs on a partial indemnity basis are appropriate.
Mattamy Homes seeks $46,325.87 all-inclusive in respect of the costs of the abandoned motion on a partial indemnity basis. In my view this is a fair and reasonable outcome and is so ordered.
Mattamy Homes and Alex Bistricer – Summary Judgment and Motion to Amend
Mattamy Homes seeks an order requiring Alex Bistricer to pay its costs of its successful defence of Alex Bistricer’s summary judgment motion and for its success on its motion to amend its pleadings; both on a partial indemnity basis. In my view, it is fair and reasonable for Alex Bistricer to pay Mattamy Homes its costs on a partial indemnity basis for the summary judgment motion only. I would not award Mattamy Homes costs on the motion to amend. Success was divided and the late timing of the motion left much to be desired in a heavily case managed process such as this one.
On the summary judgment motion, there is no reason to depart from the normative approach that costs generally follow the event. Mattamy Homes claims $103,481.37 net of the costs incurred in relation to Michelle Levinson’s motion and its own motion to amend.
While the amount proposed is substantial, the issues were substantial and the efforts required to keep this matter on track were also substantial. Mattamy Homes bore the bulk of the burden of disclosure. Due to the Bistricers’ structuring of the litigation, Mattamy Homes was dragged into the Rubner family litigation and required to spend time on issues that would not likely have been of interest to it otherwise.
Alex Bistricer ought reasonably to have expected costs in and around the range sought. Therefore, Alex Bistricer is ordered to pay costs on a partial indemnity basis to the Mattamy Homes parties jointly and severally in the all-inclusive amount of $ $103,481.37.
The Litigation Guardian and Brenda Bistricer – Application to Account
The litigation guardian was successful in rebuffing Ms. Bistricer’s claims against him. He succeeded in advancing the characterization of the joint venture interest that was accepted by the court.
The litigation guardian claims fees and disbursement on a partial indemnity basis of $82,708.54 from Brenda Bistricer. Subject to passing of accounts in the ordinary course, the litigation guardian will be entitled to be paid his reasonable fees and disbursement incurred from the property of Ms. Rubner. As Ms. Rubner’s position was successfully asserted by the litigation guardian, she is entitled to the benefit of a costs award from Ms. Bistricer.
I note that there is overlap between the positions advanced by the litigation guardian and the Rubner brothers, in their capacities as joint attorneys for property for Ms. Rubner. Nothing compelled Ms. Bistricer to name the litigation guardian personally in a separate application or to seek to claw back fees paid to him. She could have confined the claim to the brothers, as attorneys, to require them to account for paying the litigation guardian allegedly with her funds (had she succeeded). No one’s ability to pay is doubted. Moreover, if one of the siblings tries to avoid paying, they can all obtain payment by adjusting future inheritance distributions if necessary. In short, impleading the litigation guardian was not necessary and was a tactic to take aim at him personally. As such, Ms. Bistricer cannot complain that he retained counsel and took more than a passive watching brief.
Having said that, it is clear from the dockets that counsel for the litigation guardian was cognizant of the overlapping of issues with the Rubner brothers whose counsel took the lead. The fees and disbursements sought by the litigation guardian are properly less than those sought by the Rubner brothers as joint attorneys. I have reviewed the fees and disbursements claimed on behalf of the litigation guardian and find them reasonable and well within the reasonable range that the Bistricers ought to have expected in bringing their application against him.
Brenda Bistricer shall therefore pay forthwith partial indemnity costs of the litigation guardian in the amount of $82,708.54.
Marvin and Joseph Rubner, as Joint Attorneys, and Brenda and Alex Bistricer – Cross Applications
Marvin and Joseph Rubner, as joint attorneys for property of their mother, claim costs in the amount of $214,017.34 from Alex and Brenda Bistricer on a substantial indemnity basis.
The Rubner brothers were not successful in reclaiming funds distributed by Lower Fourth and gifted to Brenda Bistricer prior to Ms. Rubner being declared to lack capacity over her property. However, they did succeed in clawing back lesser amounts taken by the Bistricers after the date of incapacity and on future distributions. Moreover, they had complete success rebuffing the theory of the case and sworn evidence of Brenda Bistricer concerning her ownership of the joint venture interest in issue.
As set out in their submissions, the brothers argue that the Bistricers engaged in significant misconduct that increased the length and costs of the proceedings and was otherwise improper. They argue,
“(a) Opposing the appointment of Brahm Rosen as litigation guardian for Eda Rubner despite this Court finding in multiple endorsements that Brenda and Alex opposed his appointment "for no reason other than the fact that the neutral party had been proposed by the brothers.”
(b) Proposing litigation guardians who were found to have "baggage" and who were "not independent of the family."
(c) Suing the litigation guardian by alleging that he received funds from the Lower Fourth distributions while at the same time taking the position at Brahm Rosen's cross-examination that Eda should pursue the $400 million claim against Mattamy without indemnity from the lower fourth funds;
(d) Retaining Mr. Tayar on the eve of examinations which was held by this court to be an "act of tactical mischief';
(e) Attempting to propound wills that were a product of Brenda's tax scheme as opposed to what were Eda's actual testamentary intentions.”
While Joseph Rubner participated in the will change and the Mattamy Homes litigation structuring, he is not seeking costs in his personal capacity or for his personal counsel.
I agree with counsel for the joint attorney’s that the Bistricers’ conduct of the applications served to run up costs, delay matters, and were entirely based on a constructed narrative that did not survive Brenda Bistricer’s cross-examination. They both sought to use the estates proceedings for ulterior purposes relating to Ms. Bistricer’s taxes and her claim against Mattamy Homes. In my view, their handling of the proceedings against the rest of their family was reprehensible and falls into the categories identified by the Chief Justice in Mars, above, justifying an elevated costs award.
Counsel or the joint counsel attorneys was called to the bar in 2015. While he handled the matter with skill, the rates that he puts forward for costs are too near the top of the grid. In my view, it is fair, reasonable, and proportionate, considering the factors in Rule 57.01 and the Costs Outlines of their own counsel, for Alex and Brenda Bistricer to pay costs on a substantial indemnity basis to Marvin and Joseph Rubner, in their capacities as joint attorneys for Eda Rubner in the sum of $180,000 all-inclusive.
Outcome
Costs are awarded on the bases set out above.
I note that I make no comment on the merits of the claims and counterclaims among the Mattamy Homes parties and whomever speaks for the remaining portion(s) of the Rubner family’s joint venture interest. While I am critical of the Bistricers’ litigation tactics and their underlying family narrative, I have no details on the relative strength of the claims advanced against and by Mattamy Homes. Under Rule 20.05, the parties will be seeing me for a case conference to set a timetable and process to see the claim and counterclaim brought to a resolution on their merits efficiently, affordably, proportionately, and fairly.
F.L. Myers J.
Date: May 14, 2018