COURT FILE NO.: 17-63392

DATE: 20200106

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: In the Matter of the Estate of Anne Patricia Kay, Deceased

Kathryn Lanari, Applicant

and

Patricia Anne Kay, Estate Trustee et al., Respondents

BEFORE: Madam Justice L. Sheard

COUNSEL: David Thompson, Estate Trustee

Brad Wiseman, Counsel for Kathryn Lanari

Leslie Giroday, Counsel for Patricia Kay and Bernard John Kay

J. Kranjc, Counsel for Hollie Kay McMurray

Ben Fortino for Daniel Kay and Paul Kay

Krystyne Rusek, Counsel for Christine Kay

Randy William Kay, self-represented

HEARD: In Writing

ENDORSEMENT ON COSTS

Sheard J.

Overview

[1] The parties, except David Thompson (“Thompson”), are the beneficiaries of the estate of their mother (the “Deceased”). Some were appointed and later removed as estate trustees under the Deceased’s will. In May 2018, I was appointed as case management judge to manage the various claims made against and by the estate and its former estate trustees.

[2] In March 2019, Patricia Kay (“Tricia”), Bernard John Kay (“BJ”), and Randy Kay (“Randy”) (collectively “the ETs”) were removed by the order of Sweeny J. and Thompson appointed. Since then, steps have been ongoing to provide Thompson and the other parties with information and documentation, which, it is hoped, will allow the parties to reach a mediated resolution of their claims. Mediation has been ordered to take place by the end of February 2020.

[3] Costs have been a regular issue raised at case management conferences and the parties were invited to make written submissions to me concerning costs. The parties were asked to address three issues:

1. Should costs be determined and awarded at this juncture of the litigation?

2. If so, fixed in what amount? and

3. Payable by and to whom?

[4] I have received and considered written submissions from all the parties addressing the foregoing issues and conclude that now is an appropriate time to determine certain costs issues.

Background

[5] At the case management conference held December 6, 2019, the parties were ordered to participate in a mediation. It is hoped that a mediation will lead to a resolution of the litigation amongst the parties concerning the estate. I am optimistic that, even if the mediation does not lead to a resolution of all issues, the appointment of Thompson will have eliminated the need to use case management to obtain basic disclosure of relevant information or to seek even-handed and fair dealing by the estate trustee.

[6] Kathryn Lanari (“Kathy”) asserted that she would be unfairly prejudiced if she were required to take part in the court-ordered mediation without a decision concerning her claim for costs. Kathy asked the court to consider Kearney v. Hill, 2017 ONSC 6306, 139 O.R. (3d) 786, which identified the general rule that when a case is settled on all issues except for costs, the court is often reluctant to make an award of costs against a party (at para. 27). While not unanimous, there appears to be some support by the parties for Kathy’s position that costs for some portions of the litigation should be determined now.

[7] Some parties have expressed concern that if costs are not determined now, there is a risk that the mediation may fail because the parties could be unwilling to compromise their costs claims. Others express concern that if costs are awarded against the estate, it could jeopardize the mediation by leaving the estate with insufficient assets to fund a global settlement. That concern was clearly identified by Thompson, who asks that no costs be awarded now payable from estate assets. On December 6, 2019, Thompson advised that as of November 2019, there was approximately $498,356 left in the estate.

[8] There are a number of claims brought against and by the estate. While the estate has brought claims against certain children of the deceased, I have no information as to the likelihood of success or recovery of amounts claimed. Notwithstanding those claims, the parties are, or should be, well-aware that the amount of the claims against the estate, including fees claimed for executors’ compensation and legal fees, may exceed the available estate assets.

[9] Outside the scope of this endorsement are costs relating to Kathy’s application for the removal of the ETs (the “Removal Application”). When it became clear that the remaining litigation could not be resolved until that issue was determined, I ordered that the Removal Application be heard. The hearing proceeded before Sweeny J.

[10] The costs of the Removal Application were awarded on consent, as follows:

a) to Kathy, the sum $100,000, payable $90,000 by the ETs personally and $10,000 by the estate;

b) to Holly McMurty (“Holly”) the sum of $30,000, payable by the ETs personally; and

c) to Daniel Kay (“Danny”) the sum of $7,500, payable by the ETs personally.

[11] To date, the Removal Application is the only proceeding that has been heard and determined.

[12] In his Reasons for Judgment dated March 18, 2109, Sweeny J. found that the ETs had acted improperly and were in a conflict of interest such as to raise “questions about their ability to act honestly and in good faith in fulfilment of their fiduciary duty going forward” (at para. 13). He removed the ETs and appointed Thompson, an independent lawyer, as successor estate trustee.

Costs to be Decided

[13] Mindful of the concerns expressed by the parties, I am of the view that it will benefit all parties to know in advance of the mediation, what costs they have been awarded, or ordered to pay, and the impact, if any, of the costs awarded on the estate.

[14] I have determined the claims for costs under the following four general headings:

1. the issue of whether 1 Battlefield Drive, Hamilton, Ontario (the “Battlefield Property”) is an estate asset;

2. the production of the legal files of solicitor Anthony Wellenreiter (“Wellenreiter”);

3. the costs of the consolidation motion brought by the ETs; and

4. the costs related to case management.

Positions of the Parties

1. Kathy

[15] Kathy seeks her full indemnity costs as follows:

i) in respect of the Battlefield issue: $ 4,220.91

ii) in respect of the production of the Wellenreiter files: $ 8,565.17

iii) in respect of the consolidation motion: $ 5,308.17

iv) in respect of the case management conferences: $43,598.79

Total claimed: $61,693.04

[16] Kathy claims full indemnity costs on the basis, in part, that she was the person who fulfilled the role of estate trustee by ensuring that all the assets were included in the estate and that the ETs were removed. Kathy submits that she was “effectively acting as estate trustee” and is thereby entitled to rely on the principle of indemnity, applicable to estate trustees. Kathy also asks the court to consider the offers to settle attached to her costs submissions.

[17] Battlefield Property: Kathy seeks the costs she incurred in her pursuit to have the Battlefield Property included as an estate asset. This issue was raised by Kathy in the Removal Application but not determined. Kathy seeks her costs firstly from the ETs on the basis that Kathy’s involvement was necessary because of the positions taken by the ETs, their conflicts of interest and general manner of dealing with things. Kathy only seeks costs from the estate to the extent that the contribution from the estate is needed to make Kathy whole.

[18] As per the terms of his appointment, Thompson determined that the Battlefield Property should be treated as an estate asset. The ETs have taken no issue with Thompson’s decision and the Battlefield Property issue has thus been resolved.

[19] Wellenreiter Files: Kathy had also pursued production of the Wellenreiter files. After some opposition by the ETs on terms, an agreement was ultimately reached for the production of the Wellenreiter files, without need of a court adjudication. Kathy seeks her costs of that process.

[20] Consolidation Motion: Kathy seeks her costs of the consolidation motion brought by the ETs, but which was never heard. On a scheduling date, the presiding judge determined that case management would be preferable to a consolidation order, and the consolidation motion did not proceed.

[21] Case Management: Kathy’s claim for costs is founded on the very active role played by her counsel in the case management process. Kathy’s Small Claims Court Action was never included in the case management, and Kathy’s participation in case management was largely focussed on obtaining disclosure and information from the ETs and third parties, and the removal of the ETs.

[22] Kathy’s role in the case management process has been acknowledged by Holly and Danny, who agree that they were spared legal fees because Kathy and her counsel took the lead.

2. Tricia and BJ

[23] Tricia and BJ oppose the making of any costs order against them. They submit that they paid for their misconduct as ETs when they agreed to personally pay costs of the Removal Application totalling $127,500. They assert that those costs were intended to satisfy all of the costs claims that reasonably flowed from their misconduct as estate trustees.

[24] Battlefield Property: Tricia and BJ submit that any costs associated with the Battlefield Property were covered in the costs awarded for the Removal Application. They note that the ETs’ position respecting the Battlefield Property was a reason given by Sweeny J. for his order for their removal.

[25] Tricia and BJ also submit that the ETs decided not to challenge Thompson’s determination that the Battlefield Property was an estate asset and that after Thompson’s appointment, there was no need for any other party to incur legal fees respecting the Battlefield Property: “the ship of costs regarding the Battlefield Trust has sailed.”

[26] Wellenreiter Files: With respect to costs claimed relating to the production of the Wellenreiter files, Tricia and BJ deny that they interfered with the release of the Wellenreiter files. They claim to have sought to limit the files produced to those that were relevant in order to avoid incurring unnecessary costs.

[27] Tricia and BJ agree with the submissions of other parties that the Wellenreiter files which ultimately were produced contain information essential to the administration of the estate. They suggest that each party be awarded the same fee of $5,280.40 with respect to the production of the Wellenreiter files, which cost should be paid by the estate.

[28] The ETs sued Wellenreiter in their own names and on behalf of the estate. Thompson has determined not to pursue the lawsuit on behalf of the estate and have left it to the ETs to choose to pursue the action on their own behalf. Tricia and BJ disagree with Thompson’s decision. They assert that the Wellenreiter lawsuit was intended to benefit the estate by enriching it via a solicitor’s negligence claim and, accordingly, they were acting reasonably and prudently for the benefit of all the residuary beneficiaries.

[29] Consolidation Motion: Tricia and BJ defend the consolidation motion and submit that it was a reasonable approach to deal with the many claims between the estate and its beneficiaries. They deny Kathy’s assertion that the consolidation motion delayed the advancement of the estate administration and point out that the consolidation motion was served in March 2018 and at a scheduling appearance on April 12, 2018, an agreement was reached for an order for case management. They credit case management for “gaining ground” and assert that, without the consolidation motion, case management would not have been requested or granted.

[30] Tricia and BJ agree that now is an appropriate time for costs of the consolidation motion to be determined and ask for their costs on a substantial indemnity basis in the amount of $11,258.19 representing 90% of the costs actually incurred by the ETs. Tricia and BJ note that that they prepared the motion materials whereas the other parties simply filed notices of appearance.

[31] In response to general criticism that they acted in a conflict of interest, Tricia and BJ submit that the conflicting circumstances in which they found themselves flowed from the circumstances of the Deceased prior to death.

[32] Case Management: Tricia and BJ oppose a determination of the costs relating to case management. They submit that legal work respecting the outstanding proceedings is still ongoing and that when costs of the case management are determined, all the parties should be awarded the same amount, which should be payable from the estate.

[33] Tricia and BJ submit that case management has brought the administration of the estate steadily forward; that all the beneficiaries are affected by the case management process and will need to continue to remain involved; and that all the beneficiaries should be treated equally.

[34] Tricia and BJ further submit that some of the issues that have been addressed in the conferences have been, or will be, dealt with. The Removal Application is an example of the former. Examples of the latter include the passing of accounts, Suzie’s claim against the estate, and the claims by the estate against Danny and Paul, which will be resolved, including costs, either at the mediation or when judicially determined.

[35] As far as the amount of costs to be awarded for case management, Tricia and BJ suggest that a reduced flat fee be fixed for each of the parties in the amount of $6,169.80 for the four case management conferences conducted by teleconference, and $5,001.32 for the two conducted in person. They suggest that the “quieter” parties ought not to be penalized or the more “verbose” parties rewarded by way of different costs awards.

3. Holly

[36] Holly is a grandchild of the Deceased. She is a party to these proceedings as a beneficiary; her entitlement to receive her late mother’s share under the Deceased’s will has now been settled.

[37] Battlefield Property: Holly seeks no costs related to this issue.

[38] Wellenreiter Files: Holly seeks no costs with respect to the production of the Wellenreiter files and concedes that most of the work was done by Kathy’s counsel. Holly agrees that Kathy should have her costs relating to the Wellenreiter files and takes no position as to whether Kathy’s costs are paid from the estate or from the individual beneficiaries who opposed production. Holly submits that the parties who sought to limit production of the Wellenreiter files ought not to receive their costs, as they ought not to have resisted production of the files.

[39] Consolidation Motion: Holly agrees with Kathy that the consolidation motion was ill-conceived and ill-advised and simply delayed the ultimate resolution of the estate. Holly seeks her costs of the motion, limited to attendances at the hearings in the amount of $500, to be paid from the estate. Holly takes no position respecting the costs claimed by other parties, other than for her submission that the costs payable by the estate should be proportionate.

[40] Case Management: Holly asserts that case management is appropriate, and that, ultimately, it did produce orders for production and led to the hearing of the Removal Application. Holly says that events leading up to the teleconferences and court attendances produced “literally hundreds, if not thousands of emails, with no appreciable effect on the ultimate result.” Holly asks only for the costs of her counsel’s actual attendance at the case management conferences, to be fixed at $3,000 and paid from the estate. She submits that if she sought recovery of the costs incurred for even a fraction of the time spent to receive and review the emails that preceded the conferences, her claim for costs would be vastly higher.

[41] Holly agrees that Kathy and her counsel bore the brunt of the workload in preparing for the case management conferences, but that proportionality should be a major factor in assessing the costs to be awarded.

4. Randy

[42] Randy is a party to these proceedings as one of the ETs and as a beneficiary.

[43] Battlefield Property: Randy’s submissions were received in three emails dated September 6, 11 and October 25, 2019. In the latter email, Randy submits that because of their “combative and contesting nature” Kathy, Paul and Danny should bear the costs of their actions. He also references his involvement in the sale of the Battlefield Property and accuses Holly of being “greedy” in seeking to receive her distributive share of the estate. Finally, Randy blames Wellenreiter for refusing to do what the Deceased wanted and then protecting himself by requiring the Deceased to undergo a capacity assessment.

[44] Wellenreiter Files: Randy does not believe it to be appropriate for Kathy to be compensated as if she were an estate trustee. Randy also disagrees with the view expressed by other parties that obtaining the Wellenreiter files was necessary, and objects to any costs being awarded to Kathy for obtaining the Wellenreiter files.

[45] Consolidation Motion: While Randy does not specifically address the costs of the motion, as an ET, I assume he agrees with the submissions of Tricia and BJ that the ETs should receive their costs of the motion.

[46] Case Management: I could not identify any request for costs of case management in Randy’s costs submissions. In his September 11, 2019 email Randy attached a 25-page docket from his former lawyer, Richard Wright (“Wright”). The docket does not contain hourly rates and provides limited detail of the work performed. The majority of the entries read “receipt and review of email from”. Total fees for Wright and his articling student are $65,343.

[47] Randy’s view of the conduct of the ETs differs from the conclusions reached by Sweeny J. Randy suggests that the ETs had things in order and blames the “accusers” for the “onslaught of contesting and contesting and contesting.”

5. Danny

[48] Danny is a party to these proceedings as a beneficiary and as a defendant in an action brought by the estate against Danny and Paul for payment of money claimed to be owed to the Deceased. Danny did not specifically make a claim for his own costs.

[49] The cost submissions filed by Danny can be summarized as follows: Danny supports and concurs with the facts and law as set out in Kathy’s cost submissions and he has nothing to add. Danny attached a bill of costs covering the period from September 26, 2017 to September 5, 2019 in the total amount of $26,885 less $7,500 representing the costs awarded on the Removal Application.

[50] Danny’s bill of costs also records a significant number of entries described as “to exchange of emails between counsel.” The number of emails is striking and supports a concern voiced by some parties that each case management conference generated a vast quantity of emails that increased costs but did little to advance the litigation.

6. Suzie

[51] Suzie is party by reason of her claims against the estate as a beneficiary.

[52] Suzie seeks costs from the estate related to the production of the Wellenreiter files, the consolidation motion, and case management, collectively, in the amount of $14,453.24, on a substantial indemnity basis, or in the amount of $9,707.76, on a partial indemnity basis. In the further alternative, Suzie suggest that costs payable to any party should be in a “nominal” amount, in light of the circumstances of the proceedings.

[53] Suzie also echoes the submissions of Tricia and BJ that the litigation should be attributed to the actions of the Deceased, including: “deficiency and contradictions in her estate planning, ambiguities in her Will, ambiguity with the Battlefield trust, contradictory information provided by the deceased to each of her children, contradictory conduct with respect to debts and loans owed by and to her, in general contradictory and secretive conduct in her dealings with her children.”

[54] Battlefield Property: Suzie claims no costs relating to the Battlefield Property.

[55] Wellenreiter Files: Suzie echoes the submissions made by other parties that production of the Wellenreiter files was informative to the issues.

[56] Consolidation Motion: Suzie agrees with Patricia and BJ that the consolidation motion, which she supported, was intended to instill order to the various proceedings and to minimize duplication of legal costs and court time and led to an agreement for case management.

[57] Case Management: Suzie asserts that her consent to case management was conditional upon her counsel being permitted to attend the case management conferences by telephone. Following the conference of October 4, 2018, counsel was ordered to attend future conferences in person. Suzie asserts that this caused her significant financial prejudice as her lawyer had to travel from Mississauga to Hamilton.

[58] Suzie also submits that the case management conferences have been of no benefit to her as they have not addressed her claims against the estate. Suzie echoes comments made by other parties that there was extensive and lengthy correspondence from certain counsel that caused her to incur significant legal fees and disbursements.

[59] In responding costs submissions, Suzie provides detailed responses to Kathy’s costs submissions. Briefly, Suzie submits that Kathy’s offers to settle of January 2018 and October 2018 ought not to be considered because they were global offers to settle the entire application, and not just costs, and lacked supporting dockets; Kathy’s offer of May 23, 2019 requested full indemnity costs, and did not represent a compromise of her position, and; no settlement could have been reached without an agreement by all the parties, which never occurred.

[60] Suzie also submits that the $61,692 claimed by Kathy is excessive: it is more than double the amount claimed by Tricia and BJ, triple that claimed by Danny, and four times the amount claimed by Suzie. Further, as Kathy has already received costs of $100,000 for the Removal Application, Kathy’s current claim for costs is disproportionate. Finally, Suzie asserts that Kathy’s counsel made no effort to limit legal fees and, since November 2017, Kathy’s counsel has sent over 350 emails, some lengthy, and one of over 2000 words, excluding letters sent by email or fax, which amount is equivalent to almost 4 emails per week.

[61] Suzie opposes the costs being sought by or against Tricia, BJ and Randy for similar reasons.

[62] Suzie concludes her reply submissions by asking that the parties be awarded either no costs, or nominal costs of $10,000.

7. Thompson

[63] Thompson’s position is as estate trustee. He submits that the estate ought not to be held liable for costs related to any misconduct on the part of the ETs.

[64] Thompson’s submissions are broken out as follows:

1. Holly’s costs:

a) Thompson agrees that the consolidation motion was “ill-conceived” and motivated by the personal interests of the ETs, who ought to personally pay the $500 in costs sought by Holly;

b) Thompson agrees that case management is ongoing and the recent case management conferences have been productive and constructive. He submits that any costs award made against the estate would be premature and would likely hamper Thompson’s attempts to bring about a holistic and comprehensive resolution of all issues;

Thompson opposes any additional award of costs related to matters covered by the Removal Application.

2. Suzie’s costs: Thompson submits that Suzie’s costs of the consolidation motion should be paid by the ETs. He repeats the position he took with Holly’s claim for costs with respect to case management costs.

3. Kathy’s costs: Thompson opposes any award of costs against the estate in favour of Kathy and asserts that Kathy’s proper recourse is against the ETs in respect of the allegations of misconduct.

4. Danny’s costs: Thompson opposes any award of costs against the estate in favour of Danny.

5. Randy’s costs: Thompson opposes any award of costs against the estate in favour of Randy and submits that the misconduct of the ETs completely taints any and all work performed by the ETs thereby disentitling them from receipt of any costs from the estate.

6. Tricia and BJ’s costs: For the reasons given respecting costs claimed by Randy, Thompson opposes any award of costs against the estate in favour of Patricia and BJ.

Analysis

[65] The general principles applicable to party and party costs are well settled. Costs are discretionary. Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sets out factors I may consider in exercising my discretion. Overall, the objective is to fix an amount that is fair and reasonable, having regard for, among other things, the expectations of the parties concerning the quantum of costs: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) at paras. 26, 38.

[66] Certain general principles have now been expressly articulated in r. 57.01, specifically, the principle of indemnity and the affirmative obligation to consider the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed.

Costs claimed and from whom payable

[67] I do not accept Kathy’s submission that she is entitled to be fully indemnified for her costs as if she were an estate trustee. Kathy is not an estate trustee, she is a beneficiary. While Kathy’s actions in seeking the removal of the ETs and disclosure of information may benefit all of the beneficiaries, she is not thereby elevated to the status of estate trustee. I can find no basis for expanding the jurisprudence applicable to estate trustees to beneficiaries who take steps to ensure that the estate is administered properly. Rather, I conclude that the usual costs principles and rules should and do apply to Kathy (see Sawdon Estate v. Sawdon, 2014 ONCA 101, 119 O.R. (3d) 81 at para. 84). I also find that Kathy’s offers to settle do not operate to entitle her to costs on a higher scale.

Battlefield Property

[68] The record before me supports a finding that on and after the Removal Application, the ETs continued to assert that the Battlefield Property was not an estate asset. I do not accept that their agreement to pay the costs of the Removal Application was meant to cover the costs incurred with respect to the determination of the Battlefield Property issue. That the ETs subsequently decided to abandon that stance ought not to immunize them from the associated costs incurred by other parties.

[69] Tricia and BJ also assert that after Thompson’s appointment, none of the other parties should have spent any more time on the Battlefield Property. Those submissions ignore that, after her removal, Tricia refused to comply with the terms of the August 13, 2019 case conference order relating to the Battlefield Property. Kathy moved to enforce the August 13 order and on December 13, 2019 I granted that relief. Those costs should not have to be absorbed by Kathy or suffered by the estate. Kathy is entitled to her costs from Tricia.

[70] No other parties have asked for costs relating to the Battlefield Property.

Disposition: Battlefield Property

[71] Based on the r. 57.01 principles and the applicable jurisprudence, I award Kathy her costs respecting the Battlefield Property on a partial indemnity scale fixed at $2,500 plus H.S.T. for a total of $2,825, to be paid by Tricia.

Wellenreiter files

[72] With respect to the Wellenreiter files, all parties, except Randy, agree that those records were of benefit. The positions of the parties respecting production of the Wellenreiter files were canvassed at case management conferences. The ETs were less than co-operative in the production of the Wellenreiter files and resisted the production as sought by Kathy.

[73] As the Wellenreiter files were relevant to the issues, I conclude that the estate should pay some portion of the costs that are now being sought by Kathy and Suzie relating to their production. Kathy seeks her costs of $8,565.17 and Suzie some portion of either $14,453, $9,707 or a nominal amount.

Disposition: Wellenreiter Files

[74] I fix Kathy’s costs at $5,000 plus H.S.T. of which the estate shall pay 40% and Tricia, 60%. I fix Suzie’s costs at $1,000 plus H.S.T., payable entirely by the estate.

Consolidation Motion

[75] Kathy, Holly and Suzie all ask for costs relating to this motion. Kathy seeks $5,308. Holly $500 and Suzie a portion of the costs set out at paragraph 52.

[76] The ETs or, at least, Tricia and BJ, also seek their costs. Tricia and BJ submit that moving to consolidate all the claims was reasonable and led to the appointment of a case management judge. I do not accept this argument.

[77] I accept the submissions made by some parties that the consolidation motion was ill-advised and ultimately abandoned. As with any proceeding that is abandoned, the responding parties are entitled to their costs and the moving (abandoning) parties are not. I accept that the consolidation motion might have been the impetus for the request for case management, but I do not accept that as a basis to award the ETs their costs.

[78] I do not accept that the ETs should be reimbursed their costs of the consolidation motion or of any steps in the litigation taken when they knew or ought to have known that they could not act as estate trustees given their conflicts of interest. Rather than moving to consolidate the proceedings, the ETs should have resigned. The consolidation motion, in part, resulted in the delay of the adjudication of the Removal Application. Moreover, an earlier appointment of an independent estate trustee might well have eliminated the need for case management and led to an earlier negotiated resolution or, at the least, brought the parties to mediation at an earlier date.

Disposition: Consolidation Motion

[79] I fix the costs relating to the consolidation motion as follows:

a) To Kathy, the sum of $3,500, payable by the ETs;

b) To Holly, the sum of $500, payable by the ETs; and

c) To Suzie the sum of $2,500, payable by the ETs.

Case Management

[80] The case management costs are most problematic because of the high amounts claimed.

[81] I have considered and agree with the submissions made by several parties that the improper conduct on the part of the ETs led to the need for case management. The ETs behaved improperly and caused the other beneficiaries to incur legal fees unnecessarily.

[82] While some of the challenges encountered by the ETs in the administration of this estate may have their source in the mixed and conflicting messages and promises made by the Deceased, I do not accept the submission of the ETs or Suzie that any improper conduct of the ETs can or ought to be laid at the feet of the Deceased.

[83] I accept Kathy’s submissions that she and her counsel have shouldered the heaviest load in the course of the case management proceedings and have thereby benefited the “quieter” parties who relied on Kathy and her counsel, thereby minimizing their own legal costs. For that reason, Kathy is entitled to a significant contribution toward her own legal fees.

[84] The parties’ time dockets reference multiple emails. Applying the principles of reasonableness and proportionality, I conclude that there was an excessive amount of time spent sending emails. However, I cannot ignore that, to some extent, the energy exerted by Kathy’s counsel was a reaction to the lack of response by the email recipient(s). For that reason, I determine that a significant portion of the reasonable case management costs incurred by Kathy should rest at the feet of the ETs.

[85] In determining the amount to fix in costs against the ETs, I must also consider what the paying party would have reasonably expected to pay. On the latter issue, the record is not helpful. It is difficult to understand why the ETs acted as they did, when they had the benefit of legal advice throughout. The ETs were clearly conflicted on so many issues: the Battlefield Property; the debts they sought to recover from the estate; naming themselves as co-plaintiffs with the estate in the Wellenreiter action; and using estate funds to pay the estate’s and their own personal legal bills in the face of the Goodman order.

Disposition: Case Management

[86] I find that a fair and reasonable amount to be fixed for case management costs is as follows:

i) to Kathy $22,000, inclusive of H.S.T. and disbursements, of which the ETs shall pay $15,000 and the estate the balance;

ii) to Suzie $5,500, inclusive of H.S.T. and disbursements, of which the ETs shall pay $3,750 and the estate the balance;

iii) to Hollie, $3,000 inclusive of H.S.T. and disbursements, of which the ETs shall pay 100%;

iv) to Danny, $1,000 inclusive of H.S.T. and disbursements, of which the ETs shall pay $650 and the estate the balance; and

v) to Tricia, BJ and Randy, no costs shall be awarded.

[87] I reject Randy’s submissions, which were unhelpful and inflammatory.

[88] For clarity, and as explained above, I do not award any costs to the ETs in respect of the Battlefield Property, the Wellenreiter Files, the Consolidation Motion or Case Management.

Sheard J.

Date: January 6, 2020