Court File and Parties

COURT FILE NO.: 21-2032/21-1179 DATE: 2021-09-16

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Helios Medeiros, Applicant AND: Lucia Serpa, Respondent

BEFORE: Mills J.

COUNSEL: S. Jackon and K. Du Vernet, for the Applicant J. Figliomeni and Q. Giordano, for the Respondent

COSTS ENDORSEMENT

[1] This costs endorsement follows my decision of July 27, 2021 wherein the Applicant’s two applications were dismissed. While I did decide that it was in the best interests of the Estate of Sergio Medeiros to have Concentra Trust appointed at Estate Trustee During Litigation, I also determined that Concentra would not be required to complete the real estate transaction entered into by the Applicant. The underlying purpose of the Applicant’s motion was to remove the Respondent as an Estate Trustee so that he could compel a closing of the real estate transaction. Concentra was appointed not because the Respondent had in any way acted contrary to her fiduciary duties but rather because the conflict of interest created by the Applicant in unilaterally signing the Agreement of Purchase and Sale made it impossible for the Respondent to act with the welfare of all beneficiaries and the best interests of the estate in mind. Contrary to the submissions of the Applicant, there was not varied success on these applications. The Respondent was wholly successful.

[2] The Respondent is entitled to her costs and they are to be payable by the Applicant. Both applications were necessitated solely as a result of the unilateral actions taken by the Applicant. The three attendances before Fitzpatrick J. demonstrated that Sergio was not fully informed of the agreement to sell his greatest asset. The legal costs incurred in these applications ought not to be an expense of the Estate. This is not a situation where the estate trustee has acted reasonably but rather one where the estate trustee created the very circumstances which necessitated litigation to ensure the estate is properly administered (McLaughlin Estate v. McLaughlin, 2016 ONSC 481).

[3] The modern approach to the award of costs in estate litigation matters follows the civil litigation regime except in the limited cases where public policy considerations mandate a different result. The public policy considerations are giving effect to valid wills and ensuring estates are properly administered (Ibid. at para. 36). Sergio’s will is not in dispute. The proper administration of the estate is in issue because the Applicant signed an agreement of purchase and sale purportedly on Sergio’s behalf without the knowledge and consent of the Respondent. The Applicant himself created the need for litigation to ensure the proper administration of the estate. He should be personally liable for the costs incurred as a result of his actions.

[4] Both parties acknowledge the issues were important and complex. The pending real estate transaction relates to the single largest asset of the estate and thus the consequences of the litigation were significant. There do not appear to have been any offers to settle. The partial indemnity costs sought by the Respondent are more than double that submitted by the Applicant. There were five counsel plus a law clerk working on this matter. This is excessive even accepting that the urgent nature of the applicants required a full court press to have materials draft and filed. The quantum of fees is well beyond the reasonable expectation of that which an unsuccessful party would expect to pay.

[5] In my view, exercising my discretion, an appropriate costs order on a partial indemnity basis is $15,000 plus disbursements and HST. The Applicant shall forthwith pay this amount to the Respondent.

Mills J.

Date: August 16, 2021