COURT FILE NO.: CV-16/248
DATE: 2019/11/29
SUPERIOR COURT OF JUSTICE - ONTARIO
IN THE ESTATE OF BRUCE BOESE, deceased
RE: BRENDA BAYFORD – Plaintiff v. BRIAN BOESE, KAITLYN BOESE, ALEXANDER BOESE, ERIN McTEER, MICHELLE McTEER - Defendants
BEFORE: Madam Justice S. Corthorn
COUNSEL: Taayo Simmonds, for the Plaintiff Doreen Lok Yin So, for the Defendant, Brian Boese
HEARD: In Writing
costs endorsement
Introduction
[1] Bruce Boese died in June 2015. In 2016, Brenda Bayford brought an application for appointment as Estate Trustee of Bruce’s estate (“the Estate”). She relied on a will said to have been executed by Bruce in August 2013 (“the 2013 Will”). Ms. Bayford’s application was challenged by Bruce’s brother (Brian Boese) and Bruce’s four nieces—their challenge was to the validity of the 2013 Will.
[2] By order of the court, Ms. Bayford’s application was converted to an action. Ms. Bayford was designated as the plaintiff, with Bruce’s brother and nieces as the defendants. The action proceeded to trial over two days in November 2018. Brian was the only defendant who participated in the trial.
[3] In the Reasons for Decision released in the fall of 2019, I found that the 2013 Will was executed in accordance with s. 4(1) of the Succession Law Reform Act, R.S.O. 1990, c. 26: see Bayford v. Boese, 2019 ONSC 5663, at para. 90. I found the 2013 Will to be valid.
[4] The parties were unable to resolve the issue of costs as between them. They each delivered written submissions.
[5] Ms. Bayford seeks costs on a full indemnity basis in the amount of $42,635. Her primary position is that Brian is responsible to pay that amount. Her alternative position is that Brian is responsible to pay her costs on a substantial indemnity basis, with the balance of her costs to be paid from the Estate.
[6] Brian acknowledges that he is required to pay something towards the costs incurred by Ms. Bayford for the litigation. His position is that:
- There is no reason to award costs other than on the partial indemnity scale;
- Ms. Bayford’s conduct in the litigation was such that Brian should only be responsible for 50 per cent of Ms. Bayford’s costs on the partial indemnity scale;
- Ms. Bayford is entitled to request that the balance of her reasonable costs be paid from the Estate.
[7] Brian proposes that Ms. Bayford be awarded “litigation and administration costs” on a partial indemnity scale in the amount of $26,160.
The Issues
[8] The issues to be determined are the (a) scale on which costs are awarded, (b) quantum of costs awarded, and (c) quantum of costs, if any, to which Ms. Bayford is entitled from the Estate.
a) The Scale of Costs
i) Positions of the Parties
[9] Ms. Bayford submits that she is entitled to costs on the full indemnity or, in the alternative, substantial indemnity scale because Brian advanced an “unfounded theory” in the defence of this action. Brian’s theory was that Ms. Bayford colluded, connived, or conspired with two women to have them falsely assert that they witnessed Bruce’s signature on the 2013 Will. That theory was rejected in the Reasons for Decision.
[10] Brian submits that the theory of his case was based in part on “peculiar occurrences and discrepancies” for which he was not responsible. For example, Ms. Bayford asserted that two versions of the will drafted in 2013 existed. She gave conflicting evidence with respect to what happened to one version of the document. She also failed to comply with the Rules of Civil Procedure, RRO. 1990, Reg. 194, because she did not correct an answer from her examination for discovery, in which answer she gave evidence as to what happened to the one version of the document.
[11] As another example, Ms. Bayford’s evidence was that she did not locate both versions of the document at the same time because they were kept in separate locations in Brian’s home.
ii) Analysis
[12] The modern approach to costs in estate litigation is to follow the rules that apply in civil litigation: McDougald Estate v. Gooderham 2005 CanLII 21091 (ON CA), 199 O.A.C. 203, at para. 80. On that basis, as the successful party, Ms. Bayford is entitled to her costs of the litigation on the partial indemnity scale.
[13] It was reasonable for Brian to pursue his challenge of the 2013 Will in light of the existence of two versions of the document and Ms. Bayford’s mismanagement of the two versions (the latter in particular in light of her documentary discovery obligations). I find nothing about Brian’s conduct during this litigation to support elevating, from the partial indemnity scale, the scale upon which costs are payable.
[14] Brian shall pay Ms. Bayford her litigation and administration costs on the partial indemnity scale.
b) Quantum of Costs
[15] In the bill of costs submitted by Ms. Bayford, her partial indemnity costs are identified as $31,170 (including fees, disbursements, and HST). Brian responded by arguing that the fees claimed are excessive because they include fees for work unrelated to either the administration of the Estate or the litigation. He submits that Ms. Bayford’s litigation and administration costs on the partial indemnity scale are $26,160.
[16] In reply, Ms. Bayford acknowledged that the costs originally claimed require adjustment for the reason asserted by Brian. Ms. Bayford reduced the costs claimed on the partial indemnity scale to $28,140 (including fees, disbursements, and HST). That amount represents 66 per cent of the full indemnity costs after adjustment.
[17] In addition, Brian argues that because of her conduct, Ms. Bayford is entitled to only 50 per cent of her litigation and administration costs (i.e., approximately $13,000 or $14,000).
[18] Ms. Bayford’s conduct with respect to the original of the unwitnessed version of the 2013 Will is addressed at paragraphs 55 to 59 of the Reasons for Decision. I found that Ms. Bayford did not exercise the diligence required of a litigant with respect to both the oral and documentary discovery process. On the basis of that lack of diligence, I draw an inference and find that, had Ms. Bayford fulfilled her oral and documentary obligations diligently, the action could have proceeded with greater efficiency and the expenses incurred by the parties would have been less than those actually incurred.
[19] For that reason, I find that it is reasonable to reduce, by 50 per cent, the costs to which Ms. Bayford is entitled from Brian.
[20] A line-by-line analysis of the costs claimed is not required. The parties are only $1,980 apart with respect to the quantum of costs on the partial indemnity scale. I note that if Ms. Bayford relied on 60 percent (as opposed to 66 per cent) of full indemnity costs to calculate costs on the partial indemnity scale, the parties would be even closer in their arithmetic. Relying on 60 per cent as the multiplier, Ms. Bayford costs as claimed on the partial indemnity scale are $25,580. As already noted, Brian calculates Ms. Bayford’s costs on the partial indemnity scale to be $26,160.
[21] I fix Ms. Bayford’s litigation and administration costs on the partial indemnity scale at $26,000, reduce that amount by 50 per cent, and order that Brian shall pay Ms. Bayford costs on the partial indemnity scale in the amount of $13,000.
c) Costs Payable from the Estate
[22] In their decision in Brown v. Rigsby, 2016 ONCA 521, at paras. 11-14, the Ontario Court of Appeal sets out the following general rules governing the ability of an estate trustee to recover costs from the subject estate:
- An estate trustee is entitled to indemnification from the estate for all reasonably incurred legal costs;
- An estate trustee who acts unreasonably or in his or her own self-interest, is not entitled to indemnification from the estate; and
- An estate trustee who recovers a portion of his or her costs from another party is entitled to indemnification from the estate for the balance of the reasonably incurred costs.
[23] The conduct on Ms. Bayford’s part that resulted in the reduction of costs payable by Brian relates to both the administration of the Estate and the litigation. Both as a litigant and as the putative estate trustee, Ms. Bayford had an obligation to manage the relevant documents responsibly. Ms. Bayford’s inability, in the context of the litigation, to produce the original of the unwitnessed version of the 2013 Will was entirely of her own doing.
[24] For the reasons cited above with respect to the costs of the litigation, I find that had Ms. Bayford fulfilled her obligations as putative estate trustee, the costs incurred for administration of the Estate would have been less than those she actually incurred. It would be unreasonable to burden the Estate with the obligation to pay the portion of Ms. Bayford’s costs on the partial indemnity scale not paid by Brian (i.e., $13,000). Ms. Bayford is not entitled to indemnification of that amount from the Estate. She must bear those costs personally.
[25] In her reply submissions, Ms. Bayford identified her costs on a full indemnity scale as $42,635. When the partial indemnity costs of $26,000 are subtracted from that amount, the balance remaining is $16,635. Ms. Bayford seeks full indemnification from the Estate for the latter amount.
[26] For the same reasons that costs payable by Brian are reduced by 50 per cent, I find that Ms. Bayford is entitled to be paid from the Estate for 50 percent of the difference between her full indemnity costs and the total amount at which costs on the partial indemnity scale are fixed. Ms. Bayford is entitled to reimbursement from the Estate in the amount of $8,320 (($42,635 - $26,000) / 2).
Summary
[27] I order as follows:
- Brian Boese shall pay Brenda Bayford the sum of $13,000, which amount represents 50 per cent of Brenda Bayford’s costs, on the partial indemnity scale, fixed at $26,000.
- The Estate of Bruce Boese shall pay to Brenda Bayford the sum of $8,320, which amount represents 50 per cent of the balance of Brenda Bayford’s costs on a full indemnity basis (($42,635 - $26,000) / 2).
- Brenda Bayford shall be personally responsible for the remainder of the costs claimed for administration and litigation in this matter.
Madam Justice S. Corthorn
Date: November 29, 2019
COURT FILE NO.: CV-16/248
DATE: 2019/11/29
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: BRENDA BAYFORD – Plaintiff
AND
BRIAN BOESE, KAITLYN BOESE, ALEXANDER BOESE, ERIN McTEER, MICHELLE McTEER - Defendants
BEFORE: Madam Justice S. Corthorn
COUNSEL: Taayo Simmonds, for the Plaintiff Doreen Lok Yin So, for the Defendant, Brian Boese
COSTS ENDORSEMENT
Released: November 29, 2019