Court File and Parties

Court File No.: 05-159/17 Date: 2018-08-01 Superior Court of Justice – Ontario

In the Matter of the Estate of Shalom Herzog, also known as Sam Herzog, deceased

Re: Alona Zavet, Applicant And: Dianne Herzog in her capacity as Estate Trustee of the Estate of Shalom Herzog, also known as Sam Herzog, deceased, Respondent And: Alona Zavet v. Morris Krandel et al., Respondents

Before: L. A. Pattillo J.

Counsel: Harold Niman, Ian M. Hull, Chloe van Wirdum and Nick Esterbauer, for the Applicant Kelly Charlebois and Lisa Filgiano, for the Respondent, Dianne Herzog in her capacity as Estate Trustee

Costs Endorsement

[1] At the conclusion of my endorsement dated June 15, 2018 (2018 ONSC 3398) dealing with, among other things, the applicant Alona Zavet’s motion for interim support pending return of her application for dependants relief, I ordered that the respondent was entitled to partial indemnity costs which I fixed at $40,000, payable in the cause.

[2] Following the release of my endorsement, I received a letter from counsel for the respondent Estate Trustee indicating that when the respondent’s Costs Outline was submitted, no offers to settle were included as I had not yet rendered my decision. Counsel noted there were offers that may be material and relevant to the determination of costs and sought my directions as to how the matter might be addressed.

[3] Accordingly, I directed that the Estate Trustee and/or the beneficiaries could submit brief written submissions including copies of any offers and that the applicant could then submit brief responding submissions. I have now received and considered submissions from both the Estate Trustee and the applicant. The beneficiaries have filed no submissions.

[4] On February 27, 2018, in advance of the cross-examinations, the Estate Trustee made a written offer to settle which provided that the Estate would pay interim support to the applicant of $40,000 per month starting April 1, 2018, the Estate would continue to pay the operating costs of the Yorkville Condominium in accordance with the October 30, 2017 order of Conway J. and the applicant’s motion would be dismissed without costs (the “Offer”). The Offer remained open until five minutes after the hearing of the applicant’s motion began.

[5] The Estate Trustee submits that the Offer was substantially more favourable to the applicant than what she received on the motion. The Estate Trustee does not address the quantum or the timing of my costs award. Rather she addresses only the limited issue of the basis upon which costs are payable given the Offer was made well in advance of the hearing and was more favourable to the Estate than my award. The Estate Trustee submits that the costs should be payable by the applicant in any event of the cause as opposed to my order of in the cause.

[6] The applicant does not take issue with the Estate Trustee’s submission that the Offer was more favourable that the final result. She submits, however, based on impecuniosity that no change should be made to my costs order. In the alternative, if my costs order is to be varied, she submits that the Estate Trustee’s costs of the motion should be payable out of the assets of the Estate. The applicant further submits that in the circumstances, it would also be appropriate to order that her legal fees incurred on the motion should also be paid out of the assets of the Estate.

[7] When I requested Costs Outlines at the conclusion of the hearing, I was not advised that there were offers to settle. As a result, my costs decision was made without any consideration of the Offer. In my view, the Offer is relevant and applicable and is something which should have been considered in my determination of the costs. It clearly was more favourable to the applicant than my order for interim support. Having regard to the Offer, I consider that the Estate Trustee’s submission that my costs order should be amended to provide that the Estate Trustee’s costs as fixed by me, should be payable in any event of the cause at the conclusion of the application, to be reasonable.

[8] I am not prepared to order that the Estate Trustee’s costs should be paid from the assets of the estate. Nor do I consider it appropriate to order that the applicant’s legal fees be paid from the assets of the Estate. The practice that costs in Estate proceedings follow the civil costs regime and be payable by the losing party, with certain limited exceptions, has been in place for some time. None of the exceptions apply here.

[9] Accordingly, my costs order of June 15, 2018 is amended to provide that the Estate Trustee is entitled to her costs of the motion, fixed at $40,000 in total, payable by the applicant in any event of the cause at the conclusion of the application.

L. A. Pattillo J.

Released: August 1, 2018