Court File and Parties

COURT FILE NO.: 05-162/16 DATE: 20180924 ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE ESTATE OF JOHANN RUBIN, also known as JAY RUBIN, Deceased

BETWEEN:

JOSEPH PERNICA in his capacity as litigation guardian for IDA RUBIN, Applicant

• and -

THE BANK OF NOVA SCOTIA TRUST COMPANY, in its capacity as Succeeding Estate Trustee of the Estate of Johann Rubin, also known as Jay Rubin Estate, MORRIS ERIC RUBIN in his capacity as attorney for the property for Ida Rubin and personal capacity, SARAH WERNER, FAIGY ESTHER HAMMER, ANNIE MAYER and THE OFFICE OF THE CHILDREN’S LAWYER, Respondents

BEFORE: F.L. Myers J.

COUNSEL: William D. Black, Shane D’Souza and Jessica Firestone for Joseph Pernica, Litigation Guardian for Ida Rubin, Henry Juroviesky for Sarah Werner Justin DeVries and Jacob Kaufman for Morris Rubin, David Lobl for The Bank of Nova Scotia Trust Company, Estate Trustee of the Estate of Johann Rubin, Arieh Bloom for the Annie Mayer, John Adair and Stephanie Bishop-Hall for Faigy Hammer.

READ: September 24, 2018

COSTS endorsement

[1] By endorsement dated September 9, 2018, reported at 2018 ONSC 5273, I declined to schedule a motion brought by Sarah Werner ostensibly to vary my order dated October 19, 2017. That order appointed a litigation guardian for Ms. Werner’s mother Ida Rubin. Ms. Werner delivered the notice of motion to vary to try to regularize her late delivery of a capacity assessment purporting to establish that Mrs. Rubin had capacity to manage this litigation for herself. The late delivery of that material was a breach of a timetable ordered by Wilton-Siegel J. in respect of motions that were already scheduled to be heard within a few days of the late delivery of the new material. [1]

[2] I held a case conference to assess what to do about the proposed motion to vary the order appointing the litigation guardian as that proposed motion could have affected the motion that had already been scheduled to proceed in just a few days’ time.

[3] I ultimately declined to schedule Ms. Werner’s proposed motion to vary. I ruled that the motion was “an untimely disruption that should not proceed.” Ms. Werner lacked standing to move to remove the litigation guardian under Rule 7.06 (1)(b) of the Rules of Civil Procedure (which was not even referred to in her material). Moreover she also made no reference to and no effort to show that she complied with Rule 59.06 of the Rules of Civil Procedure which is the only other rule allowing variation of an entered order.

[4] The proposed motion was a pretense to try to prevent the litigation guardian and the applicant, Ms. Werner’s sister, from tracing funds that their mother had received while she was incapacitated from the estate of their father. The funds to be accounted for were taken by Mrs. Rubin’s children including Ms. Werner. Ms. Werner’s proposed new motion made hyperbolic claims of violations of Mrs. Rubin’s privacy and Charter rights by the litigation guardian in relation to his efforts to obtain banking records to trace where Mrs. Rubin’s funds were directed (or perhaps misdirected in breach of fiduciary duty or perhaps converted) by some or all of her children.

[5] The proposed motion was a continuation of Ms. Werner’s ongoing and transparent efforts to obstruct the applicant’s entitlement to obtain an accounting of funds received or taken from their mother by Ms. Werner and her siblings. I have commented several times already about the inappropriate tactics employed by Ms. Werner and her counsel in these proceedings. The message that obstruction is not permissible and will not ultimately work in Ms. Werner’s favour does not seem to be getting through to her.

The Parties’ Positions

[6] The applicant seeks costs of $4,407 on a full indemnity basis from Ms. Werner in relation to this matter. The litigation guardian seeks his costs on a full indemnity basis in the amount of $12,853.48 from Ms. Werner.

[7] Morris Rubin, also a sibling, seeks his costs of $4,756.74 from the estate of Johann Rubin. The Bank of Nova Scotia Trust Company, the successor trustee of the estate of Johann Rubin seeks its costs on a full indemnity basis from the estate in the amount of $3,432.38.

[8] Ms. Werner seeks her costs from the applicant and the litigation guardian in the amount of $8,362 on a full indemnity basis.

Analysis

[9] 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), 71 O.R. (3d) 291, at paras 26, 37.

[10] Ms. Werner submits that the late capacity assessment that she delivered was “an important and productive use of the Court’s and counsel’s time.” In fact, I found that it was so incomplete and incoherent as to likely be inadmissible as expert evidence.

[11] Ms. Werner has delivered a draft further affidavit of her capacity assessor as part of the costs process. The assessor purports to provide expert opinion evidence about the use of certain psychological tests in the design of capacity assessment methodology. There is no evidence that she has expertise to opine on such issues. Moreover, she re-asserts her bald conclusions as to Mrs. Rubin’s capacity without any apparent basis and contrary to the factual recitations in her purported capacity assessment. None of this is relevant to the basis on which the court declined to hear Ms. Werner’s motion to vary or to the costs of that proposed motion. Mrs. Rubin’s capacity is a matter for different process if a proceeding is brought by Mrs. Rubin. Ms. Werner had neither standing nor any articulated legal basis to vary the October 19, 2017 order.

[12] Ms. Werner submits that because I left open for the accounting the question of whether Mrs. Rubin made gifts when she was of full capacity, I somehow made an important clarification that allows Ms. Werner to continue to argue that the litigation guardian exceeded his authority by seeking banking records to show who took or received Mrs. Rubin’s money. This too is not correct. It is not a legal surprise or a clarification to note that a judge in an accounting may be called upon to decide if Mrs. Rubin made gifts when she lacked capacity to do so. That is what this proceeding has been about throughout. If someone wants to try to argue that Mrs. Rubin had capacity at some earlier date, that simply was not an issue that was before me at the case conference. I said nothing more about it.

[13] Ms. Werner’s submission that she succeeded on two-thirds or any of the issues before me is tone deaf.

[14] The matter was brought on by the litigation guardian who fairly feared that Ms. Werner’s late evidence and her last minute effort to bolster it with a proposed motion to vary my order put at risk the schedule that all counsel had been working towards under the order made by Justice Wilton-Siegel. Supported by the applicant, the litigation guardian argued that the matter was mischief that should be resolved summarily. While I was not prepared to resolve any question concerning the current state of Mrs. Rubin’s capacity, as none was properly before me, I was able to determine that motion as proposed did not have a wisp of merit and ought not to be scheduled or heard. The litigation guardian and the applicant were entirely successful in defending the attack against the litigation guardian and preserving the scheduled motion date.

[15] There is no reason why costs should not follow the normative approach applicable in Ontario and be payable by the unsuccessful party to the successful party. 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] 4 SCR 3, at p. 134. Here, Ms. Werner leveled wholly inappropriate allegations of illegal conduct against the litigation guardian. The facts that the entire process was obstructionist, brought at the last minute, in breach of a scheduling order, without any merit, and as a repetition of similar past misconduct, leads me to conclude that Ms. Werner’s actions meet the test for reprehensible litigation conduct. No party should be out of pocket at all in having to respond to this proceeding.

[16] Morris Rubin is aligned in interest with Ms. Werner in the main accounting proceeding. In this proceeding however, he advanced a balanced and fair position that affected the outcome. He should be entitled to his costs as sought.

[17] The Bank of Nova Scotia Trust Company was required to participate in this process to protect its own motion to find an acceptably transparent manner to distribute funds during the litigation in the interests of all parties. Its costs should also be paid.

[18] The rates and time charged by counsel are reasonable and well within the range of what ought reasonably to have been anticipated by Ms. Werner in light of her own counsel’s fees and disbursements and prior costs orders in this case.

[19] Ms. Werner shall pay forthwith the costs of the following parties in the listed amounts on a full indemnity basis: a. The applicant: $4,407; and b. The litigation guardian: $12,853.48.

[20] The Estate of Johann Rubin shall pay forthwith the costs of the following parties in the listed amounts on a full indemnity basis. a. Morris Rubin: $4,756.74; and b. The Bank of Nova Scotia Trust Company: $3,432.38.

[21] The Estate of Johann Rubin shall allocate the costs paid in the prior paragraph solely to the share of Ms. Werner.

F.L. Myers Date: September 24, 2018

Footnotes

[1] Ms. Werner’s paralegal submits that the material was not delivered in breach of Justice Wilton-Siegel’s timetable because the order imposing the timetable was made without his consent and he reserved a right to file later material. The lack of consent is irrelevant. The order did not reserve the right asserted by the paralegal.