COURT FILE NO.: CV-21-3281

DATE: 2022-05-12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tiffany Lin Nanchin, Applicant

AND:

Joseph Peller, Gus Peller, John Peller, Lori Covert, Donald James Peller and the Bank of Nova Scotia Trust Company, Respondents

BEFORE: Conlan J.

COUNSEL: Mr. Munro and Mr. Clapperton, for the Applicant

Ms. Fisher and Ms. Hughes, for the interim Estate Trustees, John Peller and Andrew (Gus) Peller

ENDORSEMENT on costs

I. The Motion and the Background

[1] A Motion was brought in Court file number 21-3281, with Tiffany Lin Nanchin (“Tiffany”) as the Applicant and Joseph Peller (“Joseph”), Gus Peller (“Gus”), John Peller (“John”), Lori Covert (“Lori”), Donald James Peller (“Donald”), and The Bank of Nova Scotia Trust Company as Respondents. This Endorsement deals with the costs of that Motion.

[2] In terms of the background, this is an Estates proceeding. The deceased is Jeffrey Mark Peller (“Jeffrey”). Tiffany was Jeffrey’s girlfriend at the time of Jeffrey’s death. Joseph, Gus, John, Lori, and Donald are Jeffrey’s siblings. John and Gus are acting as interim Estate Trustees.

[3] Jeffrey died suddenly on November 9, 2021. He died intestate. At the time of his death, he was living with Tiffany. He was married to but separated from his wife, Lisa Yeo.

[4] There are three Applications in total, in three separate but related Court files, and they are all scheduled to be heard at Court on October 31, 2022.

[5] On March 9, 2022, this Court heard the Motion referred to above. Relying upon sections 58, 60, and 64 of Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26, as amended (“Act”), Tiffany moved for a declaration that she is a dependant of the Estate, and for a declaration that Jeffrey failed to make adequate provision out of the Estate for her support, and for an Order for interim support, and for an Order that her legal fees be paid out of the Estate.

[6] The Motion was opposed by the interim Estate Trustees.

II. The Result of the Motion

[7] This Court dismissed Tiffany’s Motion, Nanchin v. Peller, 2022 ONSC 1760 (“Ruling”).

[8] Tiffany failed to establish on a balance of probabilities that she is a “spouse”, and thus, this Court could not conclude that she was entitled to the support that she sought (paragraph 38 of the Ruling). More specifically, Tiffany failed to establish that she met the definition of a “spouse” as set out in section 57(1) of the Act, which provision incorporates section 29 of the Family Law Act, R.S.O. 1990, c. F.3, as amended. For our purposes, that meant that Tiffany had to establish on balance that she had been cohabiting with Jeffrey continuously for a period of not less than three years [clause (a) of section 29 of the Family Law Act] – paragraph 11 of the Ruling.

[9] This Court concluded that the evidence filed on the Motion did not establish what Tiffany was alleging.

III. The Positions of the Parties on Costs

[10] Unable to resolve the issue of costs of the Motion, written submissions have been delivered.

[11] The interim Estate Trustees ask that they be awarded their costs, on a partial indemnity basis, in the all-inclusive amount of $54,166.31, to be paid by Tiffany within thirty days. A Costs Outline and detailed dockets have been supplied.

[12] Tiffany has filed no Costs Outline, Bill of Costs, or time dockets from her counsel. She submits that there was equal success on the Motion. She asks that “the respective costs of the parties be paid from the estate, after taxation, or in the alternative, be reserved to the judge at the hearing of the Applications in October 2022, or in the further alternative, have the parties bear their own costs” (the final paragraph on page 2 of the written costs submissions filed on behalf of Tiffany).

IV. This Court’s Decision on Costs

[13] With respect, I find no merit in any of the positions advanced by Tiffany, save one.

[14] First, it is simply incorrect that there was equal success on the Motion. The Motion brought by Tiffany was dismissed. Her arguments about her being a “spouse” were rejected. The arguments advanced by the other side were accepted. The interim Estate Trustees were wholly successful on the Motion. As such, they are presumptively entitled to some costs – 57.01(1) of the Rules of Civil Procedure. There is nothing here to displace that presumption.

[15] Second, the suggestion that the costs of all parties be paid out of the Estate is contrary to the current trend in the binding jurisprudence from the Court of Appeal for Ontario. In Neuberger Estate v. York, 2016 ONCA 303, for example, a decision cited by the Court of Appeal many times since, Gillese J.A. wrote, at paragraph 24, “[i]n estates litigation in Ontario, the historical approach to costs has been displaced in favour of one in which the costs rules in civil litigation apply both at first instance and on appeal, unless the court finds that one or more of the relevant public policy considerations dictate that costs (or some portion thereof) should be paid out of the assets of the estate”.

[16] Tiffany, in her submissions, points to no such public policy consideration(s), and this Court finds that there is none applicable here.

[17] Third, Tiffany’s alternative suggestion that the costs should be reserved to the judge hearing the Applications is unreasonable. It ignores the fact that it was Tiffany who chose to seek this interim relief instead of proceeding straight to a determination of her Application. It is also contrary to the import of Rule 57.01, which clearly contemplates a simple, relatively inexpensive, and expeditious process for fixing costs after each step in the proceeding – subrules (6) and (7).

[18] Fourth and finally, Tiffany’s further alternative suggestion that each side bear its own costs would only be reasonable if this Court accepted the proposition that success on the Motion was fairly evenly divided, which proposition, with respect, has no merit.

[19] Thus, the only legitimate questions are whether the quantum of costs sought by the interim Estate Trustees is fair, just, reasonable, and proportionate, and whether the award requested would meet the objectives of costs orders – to at least partially indemnify successful litigants, and to encourage settlement, and to discourage bad or inappropriate conduct.

[20] The latter, bad conduct, is not relevant here, in my opinion. I have Ms. Fisher’s able submission about Tiffany not filing, at the hearing of the Motion, the Bill of Sale for the horse “Rosebud”, dated March 4, 2019, which document (I agree) would have hurt her position about where she was living at the time, but that does not impact my decision here.

[21] I do think that there is some merit in Tiffany’s overall position that $54,166.31 is a lot of money to pay for costs of a motion which was argued in one-half day and which could not have resulted in a final order being made.

[22] Tiffany criticizes the number of lawyers working on the matter for the interim Estate Trustees, and the time spent, and whether the time spent relates solely to the Motion rather than the Application as a whole, and so on. I prefer to take a more holistic approach. It is not the role of this Court, generally, to dissect the time dockets line by line.

[23] Looking at the factors under subrule 57.01(1), and considering the overall objectives of a costs award, and noting again that Tiffany chose not to divulge to this Court any information about her own legal costs for the Motion, this Court fixes the costs at $35,000.00, all-inclusive.

[24] This Court orders that Tiffany shall pay to the interim Estate Trustees, within thirty (30) calendar days after May 12, 2022, costs in the total amount of $35,000.00.

Conlan J.

Date: May 12, 2022