COURT FILE NO.: 2012-037
DATE: 20190903
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE ESTATE OF JEAN LORIMER CHURCHILL, deceased November 10, 2011
BETWEEN:
SANDRA JOANNE CHURCHILL, DONNA CARROL RUMBLE AND SHEILA JEAN FINDLAY
Plaintiffs
– and –
RONALD BRIAN CHURCHILL
Respondent
Paul J. Conlin, for the Plaintiffs
Self-represented
RULING ON COSTS
PEDLAR, J.
[1] Following the trial decision in this matter, I invited the parties to provide me with submissions as to costs if they were unable to resolve that issue.
[2] Both parties took advantage of the opportunity to provide submissions on costs, which I have reviewed. This has already been a painful and expensive and slow process for the parties. The areas of agreement had been few and far between and the communication has not been as effective as normally takes place in this type of litigation.
[3] It is quite frustrating for both the parties, and the court, to see so many resources spent on the dispute between the parties when the clear intention of the author of the will, being their mother, was that they would each benefit from the gift of her estate. What has happened is that a significant amount of time, energy and money has been spent on the process. This is unusual, though not unprecedented, in family disputes over estates. Fortunately, for all, it is, however, a rare exception and one that is sad to observe when a dispute over a parental gift results in further division within a family.
[4] In reviewing the material, I agree with the submissions of the plaintiffs that are stated at paragraph 6 through 11 of the offer to settle dated October 15, 2014, that the offers to settle provided by the plaintiffs to the respondent, as set out therein, were more favourable than the results after trial.
[5] As stated in my decision following trial, it would have been apparent to the respondent, after losing every motion in this litigation and having significant costs ordered, either payable out of the estate or to be assigned, that there would be significant cost implications following a three-day hearing, as took place in this matter.
[6] I have reviewed the respondent’s costs submissions on the same issues and, as he himself has noted at paragraph 41, page 9 of his submissions in response to the plaintiffs’ costs submissions, there is little value in proceeding with the “offers to settle” comparable analysis without taking into account, as he has failed to do, the findings at trial as was done by the plaintiffs in their submissions.
[7] The purpose of such an analysis is to compare what was offered by each party in advance of the trial so that they could take that offer into account along with the unknown results of the contested matters at trial and make an informed decision about the risk of losing any, or all, of those issues, which would clearly have cost implications.
[8] The plaintiffs were virtually entirely successful in all contested matters and are, pursuant to Rule 49.10, entitled to substantial indemnity costs from the dates of the offers that they made, which I agree were more favourable to the plaintiffs than either offer.
[9] At paragraph 13 of the plaintiffs’ costs submissions, there is a chart comparing what the respondent would have been required to pay to the estate (or have deducted from his share of the estate) if he had accepted the offer to settle made by Sandy Churchill on behalf of the estate on April 13, 2018. I accept those calculations as well as the calculations made on the earlier offer, as set out above, for the same reasons. The offer of October 15, 2014 is in the range of $58,000.00 to $68,000.00, rounded up, and the offer of April 13, 2018 in the range of $45,500.00, rounded down.
[10] The real issue is whether the scale of costs referred to in Rule 49.10 of substantial indemnity should be increased to complete indemnification in view of the conduct of the respondent throughout these proceedings.
[11] In order to make such a ruling, the conduct of the losing party would have to be based on their serious misbehaviour so, as to fall within the category of “reprehensible”, as stated by the Ontario Court of Appeal referred to in the plaintiffs’ costs submissions and reported at Davies v. the Corporation of the Municipality of Clarington 2009 ONCA 722, 100 O.R. (3d) 66 at para. 44.
[12] In support of their position, the plaintiffs referred to six categories of conduct by the respondent that they submit can reasonably be found by the court to amount to “reprehensible” behaviour on the part of the respondent. These are based on findings made in the judgment issued following trial. Those areas of his behaviour are set out in paragraph 17(a) through (f), without fully quoting the reasons for judgment, in the following terms:
a) His efforts to claim sole ownership of the TD assets, when it was clear his mother wanted all her assets distributed equally to her children, as well as his failure to provide accurate information to the beneficiaries.
b) His perseverance with his meritless claims in spite of five court hearings, (three directed at compelling disclosure) all of which resulted in rulings adverse to the respondent (defendant) and included two adverse costs awards.
c) His misappropriation of funds from estate assets, and his unwillingness to account for the misappropriation: witness the $13,070.00 excess amount transferred out of estate assets to the respondent’s (defendant’s) accounts, only partially admitted ($12,000.00) at trial in the face of incontrovertible evidence. In addition, the respondent (defendant) has refused to account for $3,053.93 taken from Mrs. Churchill’s house account prior to her death.
d) His transfer of the Brighton property to himself on October 31, 2013 without notice to the plaintiffs, without having appropriately determined the transfer price, and done, apparently defiantly, after the plaintiffs had raised reasonable concerns about his management of the estate.
e) His incredulous claim, in the face of his fiduciary obligation to manage the estate for the benefit of the estate beneficiaries, and to subordinate his personal interests to the interest of the estate beneficiaries, to personal entitlement to the $17,540.02 increase in an estate investment that occurred during his tenure as Executor – a claim that was only abandoned at trial.
f) His failure to comply with court orders (production orders) and more recently, the order made by this court compelling him to deliver Mr. and Mrs. Churchill’s ashes, and non-monetary assets, within 15 days. They were due May 31, 2019, and had not yet been delivered, by the time submissions regarding costs were prepared in June 2019.
[13] The respondent was self-represented throughout the court proceedings herein. That does not justify the conduct listed above. The respondent was unsuccessful at all stages of these proceedings. He proceeded in spite of cost warnings and admonitions by a number of judges and clearly should have been aware of the risk in continuing to conduct himself in the way he has chosen to do so throughout these proceedings. He has been found to be in breach of his fiduciary duties and also to have disregarded court orders herein.
[14] Paragraph 19 of the plaintiffs’ costs submissions, it is noted that according to Rule 57.01, the factors to be considered in exercising the court’s discretion in ordering costs include indefensible conduct which unnecessarily provokes a trial or proceedings such as took place in this case. The fact that the respondent was aware that a one-half day proceeding had previously resulted in a cost award of over $60,000.00, even though the allocation of that cost award had not been completed.
[15] The claim of the plaintiffs for complete indemnity is not unreasonable. It amounts to a claim of $77,406.78. Substantial indemnity, as set out in paragraph 22 of their submissions, would be an award of $69,666.11, to which they are clearly entitled.
[16] Under all the circumstances of this case, taking into account also the issue of proportionality and accepting the plaintiffs’ submission that more than the substantial indemnity cost award should be granted, I award the plaintiffs $75,000.00, inclusive, as their costs of the proceeding to date, to be paid out of the respondent’s share of the estate first and personally after that, if any amount is still owing.
[17] The ruling on costs may be issued without approval as to content and form by the respondent under these circumstances.
The Honourable Mr. Justice K. E. Pedlar
Released: September 3, 2019
COURT FILE NO.: 2012-037
DATE: 20190903
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE ESTATE OF JEAN LORIMER CHURCHILL, deceased November 10, 2011
B E T W E E N:
SANDRA JOANNE CHURCHILL, DONNA CARROL RUMBLE AND SHEILA JEAN FINDLAY
Plaintiffs
– and –
RONALD BRIAN CHURCHILL
Respondent
RULING ON COSTS
Pedlar, J.
Released: September 3, 2019