Court File and Parties

COURT FILE NO.: 05-76/16

DATE: 2020-02-14

SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF THE ESTATE OF YEHUDA GEFEN, deceased

AND IN THE MATTER OF THE PARTITION ACT, R.S.O. 1990, c. P4

RE: LUCIA SAUNDERS as estate trustee of the estate of Yehuda Gefen, deceased, Applicant

AND:

HENIA GEFEN, and RONALD RUTMAN as Estate Trustee During Litigation of the Estate of Elias Gefen, deceased, Respondents

BEFORE: Kimmel J.

COUNSEL: Christopher Graham, for Lucia Maria Saunders Estate Trustee of the Estate of Yehuda Gefen

Ronald Moldaver, Q.C., for Henia Gefen, in her personal capacity and as estate trustee of the estate of Elias Gefen

Lisa Filgiano, for Ronald Rutman, Estate trustee during litigation (ETDL) of the Estate of Elias Gefen

READ: Cost submissions dated December 4, 5, 19, and 20, 2019 and January 14, 2020

COSTS ENDORSEMENT- 11 Townsgate

[1] I released Reasons for Judgment in this matter on October 17, 2019. I provided directions regarding written costs submissions on November 4, 2019 and have subsequently received them. This costs endorsement deals with the costs of the application relating to the ownership interests in the property at 11 Townsgate in Thornhill, Ontario.

[2] This application, while heard together with the larger Gefen estate proceedings, deals with a discrete issue that is not an “estates” matter per se. The costs are to be determined in accordance with the usual considerations applicable to the assessment of costs in civil litigation, within the parameters of the exercise of the court’s discretion under s. 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure.

[3] Yehuda’s estate seeks full indemnity costs of this application in the all-inclusive amount of $244,556.99. This is comprised of:

a. $50,000 plus HST and $2,289.23 in disbursements for preparing the application and dealing with the certificate of pending litigation;

b. $50,000 plus HST for an estimated 25% of the total estimated pre-trial preparation time and expense for the consolidated trial said to have been dedicated by counsel for Yehuda’s estate to the Townsgate application;

c. $25,000 plus HST for a portion of the total of 10 hours of discovery of Henia and discovery of Yehuda’s estate on the Townsgate issues;

d. $89,396.25 plus HST for an estimated 25% of the total trial time and expense said to be dedicated by counsel for Yehuda’s estate to the Townsgate application, including four of the twenty-one mid-trial motions that resulted in document production and directions during the trial and the testimony of five of the trial witnesses whose testimony touched upon matters relevant to the Townsgate application.

[4] In support of this request for full indemnity costs, Yehuda’s estate relies on the following:

a. what is characterized as a fraudulent attempt by Henia to have Yehuda’s interest extinguished from title through a survivorship application made in 2016 after he died that conflicted with prior severance initiatives;

b. litigation tactics that resulted in late production of relevant documents from the lawyers’ files and unnecessary court attendances; and

c. Henia’s opposition to the motion to consolidate the Townsgate application with the estate proceedings as further evidence of steps taken to unnecessarily complicate and lengthen this proceeding.

See Foulis v. Robinson, (1978), 1978 1307 (ON CA), 21 O.R. (2d) 769 (CA), at para. 3 and Rule 57.01.

[5] Henia suggests that there be no costs of the Townsgate application because there was, in her submission, divided success, since Yehuda’s estate did not succeed in the claim for a 100% interest in this property or in the claim for it to be sold. Those unsuccessful claims are said to have been responsible for some of the disputed pre-trial evidence and production requests and for Mr. Hull being called by Henia to testify at trial. Henia also points out that the main reason for the decision affirming Yehuda’s estate’s 50% interest in the Townsgate condo, namely the pre-trial conduct of the parties found to be consistent with the severance of the joint tenancy before Yehuda’s death, was not a focus of the trial testimony.

[6] The ETDL has not taken a position on the costs of this application.

[7] The overarching principle of Rule 57 is for the court to make an award of costs that is fair and reasonable, having regard to the circumstances and the reasonable expectations of the parties.

[8] It is not reasonable for Yehuda’s estate to expect that it could maintain through the trial a claim for a 100% interest in 11 Townsgate and persist in an order for the sale of this property which Henia still lives in, and recover full indemnity costs of this application when neither of those requests were granted. Conversely, Henia could not reasonably expect to pay no costs when she failed to defeat the application entirely and Yehuda’s claim to a 50% interest in the property was upheld.

[9] Henia has not provided a costs outline or any submissions as to the reasonableness of the amounts that Yehuda’s estate has attributed to the costs of this application, totalling $244, 556.99 on a full indemnity basis. Given the extent of the materials (two volumes of a consolidated written application record plus extensive written submissions), the nature of the evidence that was tendered about this issue through the witnesses and documents referenced at trial, and the nature of the pre-trial and mid-trial rulings pertaining to this application, this does not appear to be an unreasonable amount for Yehuda’s estate to have been charged by its counsel for this application. However, there is no methodical way for me to assess the breakdowns of the estimated percentages of discovery and trial preparation and trial time dedicated to this issue (relative to other issues in the broader proceedings) that counsel for Yehuda’s estate has provided. My ultimate assessment is necessarily qualitative rather than quantitative.

[10] Having regard to the factors under Rule 57 and in the exercise of my discretion thereunder and under s. 131 of the Courts of Justice Act and having regard to the outcome of the various claims, I am awarding Yehuda’s estate the costs claimed for this Townsgate application in the all-inclusive amount of $110,050.65 to be paid by Henia.

[11] Conceptually, I have arrived at this specific amount by first calculating the substantial indemnity costs that Yehuda’s estate is claiming (extrapolated from the full indemnity amount claimed, using the 90% factor that counsel for Yehuda’s estate used to calculate substantial indemnity costs in the cost submissions made in the Gefen estate proceedings). I consider substantial indemnity costs to be the appropriate scale of costs. One important consideration in arriving at this determination is the various tactics employed by the lawyer who Henia was instructing, Mr. Wolicki, that were obviously designed to defeat or circumscribe Yehuda’s, and later his estate’s, interests. This was compounded by other the litigation strategies and positions adopted by Henia which unduly complicated and lengthened the time spent on this issue before and during the trial, for example through the delayed production of documents and information, many of which came to light shortly before and during the trial.

[12] This conduct is the justification for my decision to award costs on a substantial indemnity scale to Yehuda’s estate. The applicant’s only partial success in the outcome of the application is another important and relevant consideration to my determination of the quantum of costs. I have reduced this substantial indemnity costs award by 50% to reflect that Yehuda’s estate did not succeed in achieving all that was requested on this application.

Kimmel J.

Date: February 14, 2020