Court File and Parties

Court File No.: CV-18-137 Date: 2019-01-21 Superior Court of Justice - Ontario

Re: Arthur Rhiness, Patrick Rhiness, Brian Rhiness, in his capacity as Estate Trustee for Jesse Rhiness, Nancy Mattice, in her capacity as Estate Trustee for Jesse Rhiness, Sherry MacDonald, in her capacity as Estate Trustee for Jesse Rhiness, Karen Rhiness (Cumming), in her capacity as Estate Trustee for Norton Rhiness, Clinton Rhiness, in his capacity as Estate Trustee for Leonard Rhiness, Rodney Rhiness, in his capacity as Estate Trustee for Leonard Rhiness, Jeffrey Rhiness, in his capacity as Estate Trustee for Leonard Rhiness, and Charles Graham-Tanner, in his capacity as Estate Trustee for Daisy Rhiness, a.k.a. Daisy Graham-Tanner, a.k.a. Daisy Walmsley, Applicants

And: Muriel Ann Rhiness, Respondent

Before: The Hon. Madam Justice M.P. Eberhard

Counsel: John Russo, Counsel for the Applicants Patrick Lassaline, Counsel for the Respondent

Heard: By written submissions

Costs Endorsement

[1] All the parties are either one of the seven children of Daisy Rhiness or represent the estate of one of the seven. Six of these seven joined as Applicant in this proceeding. The seventh child is Rocky, who transferred his interest to his spouse Muriel, who is the named Respondent. Muriel was not in court but her children, Brad Rhiness and Julie Vandererven, her Powers of Attorney, were present with a written authorization to attend on her behalf.

[2] I heard and ruled on the appointment of a Receiver. Otherwise the order I made was based on a late arising consent. I then adjourned the hearing to allow negotiation. The matter did not return before me on the scheduled date. Finality was reached by agreement.

[3] For years the Respondent has disputed the position taken by the Applicant which ultimately succeeded. Where there is dispute, courts are available to rule on the issues. Litigation is expensive.

[4] Litigation requires evidence properly marshalled for a court to determine disputed facts. Litigation requires procedural compliance so that each side can state their position and fairly respond to the position of the other.

[5] To put it simply, the Respondent utterly failed to provide evidence to support her position on the dispute and utterly failed to comply with procedural requirements.

[6] Nevertheless, counsel for the Applicant did not urge the court to dismiss the Respondent’s dispute summarily but rather attempted to respond to the Respondent’s position as it emerged.

[7] Counsel for the Applicant negotiated professionally with successive counsel who represented the Respondent over time.

[8] To put it simply, the Respondent’s position was unreasonable and the Respondent’s conduct of the negotiations and litigation was unreasonable.

[9] The Applicant had no untried alternative except to bring the dispute before the court for finalization.

[10] A litigant who proceeds without developed evidence or procedural compliance must expect to pay costs of the opponent who has provided evidence and followed the rules just to get to a statement of the obvious.

[11] The Applicant has not sought substantial indemnity costs. I find no reason to deny the Applicant’s request for partial indemnity costs of $10,278.16 to be paid by the Respondent. If not earlier paid, the costs shall be taken from the Respondent’s share of the proceeds of sale of the subject property.

EBERHARD J.

Date: January 21, 2019