Court File and Parties
COURT FILE NO.: CV-16/248 DATE: 2021/12/21
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] The trial of this action was conducted in November 2018. The defendant’s appeal from the trial decision was allowed: Bayford v. Boese, 2021 ONCA 442. The defendant was awarded his costs of the appeal on a substantial indemnity basis: Bayford v. Boese, 2021 ONCA 533 (“the costs endorsement”).
[2] In the context of making costs submissions to the Court of Appeal for Ontario, the parties agreed that (a) the defendant is entitled to his trial costs, and (b) the matter of trial costs would be referred to the trial judge: see the costs endorsement, at para. 1. I received the parties’ respective trial costs submissions.
[3] The defendant seeks his trial costs on a full indemnity basis in the amount of $62,985.54. In support of his request for costs on an elevated scale, the defendant submits that by putting forward her case as she did, the plaintiff in essence attempted to perpetrate a fraud on the court. The defendant submits that the plaintiff knowingly misled the court at trial with respect to the documents upon which her claim was based.
[4] The defendant submits that the plaintiff’s conduct in the litigation, including at trial, is the type of egregious conduct that is worthy of sanction by an award of costs on a full indemnity basis.
[5] The plaintiff submits that the litigation arose because of the Testator’s conduct in failing to have a will he instructed his lawyer to draft executed at the lawyer’s office. For that reason, the plaintiff submits that there should be a blended costs award. The plaintiff asks that the court rule that the Estate bear a portion of the defendant’s costs.
[6] The plaintiff submits that there is nothing about her litigation conduct that can be said to be reprehensible, scandalous or egregious. The plaintiff asks the court to consider that she is a person of modest means. She asks the court to award the defendant costs on a partial indemnity basis.
General Principles
[7] The general source of the court’s discretion to award costs is found in s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43:
Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.
[8] The factors to be considered by the court when exercising its jurisdiction with respect to costs are set out in r. 57.01 of the Rules of Civil Procedure, R.R.O. Reg. 194. I will address those factors in a later section of this endorsement.
[9] The general rule is that costs, if awarded, are payable on a partial indemnity basis. The fee portion of partial indemnity costs is typically defined as no more than 65 per cent of the reasonable solicitor-client fees the party entitled to costs has incurred.
[10] There are two levels of costs on an elevated scale. First, there are substantial indemnity costs, defined as 1.5 times partial indemnity costs. Second, there are full indemnity costs – a term for which there is no formal definition. Full indemnity costs are generally considered to mean “complete reimbursement of all amounts a client has had to pay his or her lawyer in relation to the litigation”: Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66, at para. 13.
[11] In Net Connect Installation Inc. v. Mobile Zone Inc., 2017 ONCA 766, at para. 8, the Court explained the difference between the two forms of costs on an elevated scale as follows:
Substantial indemnity costs is the elevated scale of costs normally resorted to when the court wishes to express its disapproval of the conduct of a party to the litigation. It follows that conduct worthy of sanction would have to be especially egregious to justify the highest scale of full indemnity costs.
[12] An award of costs on a full indemnity basis is made in those rare and exceptional cases in which the court seeks to chastise a litigant for conduct of which the court disapproves: Davies, at para. 30. The types of conduct which may result in an award of costs on a full indemnity basis include the following:
- The fabrication of evidence (Net Connect, at para. 9); and
- Failing to be forthright with respect to documentary disclosure, fraudulently creating documents, lying under oath, and attempting to perpetrate a fraud on the opposing party and the court (Pirbhai v. Singh, 2011 ONSC 1366, at para. 119).
[13] The court is entitled to consider not only conduct in the litigation proceeding; it is entitled to consider the circumstances that gave rise to the litigation: see Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, at para. 43; Davies, at para. 30.
The Scale on Which Costs are Awarded
[14] A number of findings have already been made about the plaintiff’s conduct in this proceeding. The original endorsement related to trial costs was released in 2019: see Bayford v. Boese, 2019 ONSC 6919 (“the 2019 endorsement”). In it, I made the following findings about the plaintiff’s conduct.
[15] First, at para. 30 of the 2019 endorsement, I found that the plaintiff “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 drew an inference and found that, had the plaintiff fulfilled those 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.
[16] At paras. 23-24 of the 2019 endorsement, I found that the plaintiff failed, in her role as the putative estate trustee, to manage the relevant documents responsibly. I found that her inability to produce the original of the unwitnessed version of the 2013 Will was entirely of her own doing.
[17] The plaintiff was successful at trial. In the 2019 endorsement, her conduct was considered in the context of her entitlement to costs. I concluded that, as a result of her conduct, the costs to which she was entitled from the defendant and from the Estate would be reduced by 50 per cent.
[18] On its own, the type of conduct discussed in the preceding paragraphs, does not rise to the level of conduct that supports an award of costs on a full indemnity basis.
[19] There is nothing in either of the two decisions from the Court of Appeal for Ontario in this matter that would cause me to revisit either of the two findings discussed in paras. 15 and 16, above.
[20] In deciding on which scale to award costs, I consider the substantive findings made by the Court of Appeal for Ontario. Those findings are summarized as follows at para. 3 of the costs endorsement:
The basis for the appellant’s request for costs on a full indemnity basis arises from the fact that the case put forward by the respondent at trial, and accepted by the trial judge, was that the Will in question, signed by the testator, was purportedly witnessed by two individuals. As found by this court, that was not the true state of affairs. In fact, the two individuals had signed as witnesses after the testator had passed away.
[21] The defendant’s position with respect to appeal costs and, now, with respect to trial costs is that the plaintiff, in essence, attempted to perpetrate a fraud with respect to the Estate and upon the court.
[22] The plaintiff did not produce the original of either Version 1 or Version 2 at trial.[^1] On examination for discovery, the plaintiff’s explanation for why Version 1 was not available was that she had misplaced it. In approximately 10 instances at trial, the plaintiff testified that she had given Version 1 to her former counsel in the matter. Her evidence at trial was that the answer given at her examination for discovery was incorrect.
[23] From the substantive decision of the Court of Appeal for Ontario, it is clear that the original of Version 1 was not before the Court for the purpose of the appeal.
[24] By contrast, the plaintiff attempted to tender the original of Version 2 on appeal. Her request to file fresh evidence was declined. In support of her request in that regard, the plaintiff delivered an affidavit in which she stated that she had received the original of Version 2 from her former counsel in January 2020.
[25] On the appeal, the plaintiff did not seek to file fresh evidence to address why she continued to be unable to produce the original of Version 1 – also said to have been given to her former counsel.
[26] The Court of Appeal for Ontario considered the evidence of the handwriting expert called at trial on the defendant’s behalf. The Court concluded that the signatures, said by the plaintiff to be those of the Testator, on Version 1 and Version 2 were the same – meaning that the signature on Version 2 was a copy of the signature on Version 1.
[27] Taking into consideration the plaintiff’s evidence at trial and the decision of the Court of Appeal for Ontario, I find that the plaintiff attempted to perpetrate a fraud on the Estate, on the beneficiaries under the existing valid will and on the court. The plaintiff did so in two capacities – as the putative estate trustee and as a litigant. She involved two other individuals in that attempt – the two individuals whose names and signatures appear on Version 2 as witnesses to the Testator’s signature and who gave evidence at trial.
[28] I find that the litigation was caused entirely by the plaintiff’s conduct. Taking into consideration that finding and the findings previously made about the plaintiff’s litigation conduct, I conclude that the plaintiff engaged in the type of egregious and reprehensible conduct that warrants sanction in the form of an award of costs on a full indemnity basis. Consequences of this kind, for the type of behaviour in which the plaintiff engaged, serve as a deterrent to prevent others from engaging in similar conduct.
[29] In summary, the defendant is entitled to his trial costs on a full indemnity basis. I turn, then, to the issue of quantum.
The Quantum of Costs Awarded
[30] The defendant asks that costs on a full indemnity basis be fixed at $64,985.54, inclusive of disbursements and HST. In support of that amount, the defendant highlights the following points:
- The plaintiff’s trial costs on a full indemnity scale are $42,635: see the 2019 endorsement at para. 5;
- The plaintiff’s trial counsel was called to the bar in 2013 and defendant’s trial counsel in 1970; and
- The defendant’s trial costs include the expenses incurred for the expert’s report and the expert’s testimony at trial (approximately $8,000).
[31] The full indemnity costs are broken down as follows:
Fees $ 45,472.50 HST on Fees $ 5,911.43 Disbursements (incl. HST) $ 13,601.61 $ 64,985.54
[32] The defendant’s trial counsel was called to the bar in 1970. The invoices attached to the bill of costs identify an hourly rate of $450 for her services. I find that hourly rate to be reasonable. The invoices include nominal amounts of time for an associate lawyer (2013 call) at $195 per hour. Another senior counsel (1974 call) has 6.2 hours of docketed time at $500 per hour. There is nothing in the dockets which suggests that there is a duplication of effort as between any of the timekeepers.
[33] Two aspects of the fees charged by trial counsel merit specific comment. First, is the approach taken to travel time. The parties both resided in the Arnprior area. The proceeding was commenced in Pembroke. Both parties retained Ottawa-based counsel.
[34] The parties’ respective choices of out-of-town counsel was reasonable given the nature of the proceeding. The defendant retained counsel experienced in the area of estate law. To her credit, the defendant’s counsel charged travel time at the significantly reduced hourly rate of $100. She appears to have charged travel time only for attendance at the pre-trial conference (and not for attendance at trial). Her accommodation costs for the attendance at trial are modest. I see no reason to reduce either of the fees or disbursements incurred because of the choice of out-of-town counsel.
[35] The second aspect of the fees charged by the defendant’s counsel which merit comment is the counsel fee of $7,000 for one and two-thirds days of trial. I find the counsel fee is reasonable.
[36] I have considered the factors listed in r. 57.01(1) of the Rules of Civil Procedure. Based on the factors from that list relevant to this proceeding, I find that the full indemnity costs claimed by the defendant are reasonable. With respect to r. 57.01(1), the factors that I have considered include the following:
- The difference between the full indemnity costs incurred by the plaintiff ($42,636.93) and those incurred by the defendant ($64,985.54) can be explained by the difference in the years of call of counsel and the involvement of an expert witness. The plaintiff could reasonably have expected to pay costs in the amount claimed (r. 57.01(1)(0.a)-(0.b));
- The costs claimed are proportional to the amount involved in the litigation. The most significant asset is a farm property in the Arnprior area. The property is said to be valued in the six-figure range (r. 57.01(1)(a));
- The issues were important to the defendant because he was seeking to maintain the ownership of a family farm within the family (r. 57.01(1)(d)); and
- The plaintiff’s conduct as discussed in this and previous rulings at trial and at the Court of Appeal for Ontario (r. 57.01(1)(e)-(f)).
[37] In summary, the plaintiff shall pay to the defendant his trial costs on a full indemnity basis in the amount of $64,985.54.
Disposition
[38] At para. 9 of the Costs Endorsement, the Court of Appeal for Ontario ordered that, “[t]o the extent that the costs of the appeal, or of the trial, are not satisfied by the [plaintiff], the [defendant] may recover those costs from the Estate of Bruce Boese. Therefore, to the extent that the defendant is not able to recover his trial costs, awarded on a full indemnity basis in the amount of $64,985.54, from the plaintiff, the defendant shall be entitled to recover his trial costs from the Estate of Bruce Boese.
[39] I wish to thank counsel for their concise, yet thorough, written submissions with respect to costs.
Madam Justice S. Corthorn
Date: December 21, 2021
COURT FILE NO.: CV-16/248 DATE: 2021/12/21
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
CORTHORN J.
Released: December 21, 2021
[^1]: Version 1 and Version 2 are terms derived from the decisions, both at trial and from the Court of Appeal for Ontario, with respect to the two versions of the will presented as evidence by the plaintiff at trial.