DATE: 2022-01-11
SUPERIOR COURT OF JUSTICE – ONTARIO
IN THE MATTER OF THE ESTATE EDA RUBNER, deceased
RE: JOSEPH RUBNER, (also known as YOSSI RUBNER) AND MARVIN RUBNER, Applicants/Moving Parties
AND:
BRENDA BISTRICER, personally and in her capacity as Co-Estate Trustee of the Estate of Eda Rubner under the Last Will and Testament of Eda Rubner dated March 8, 2014 and the primary and secondary wills of Eda Rubner dated September 21, 2014, NORMAN WINTER, in his capacity as Estate Trustee of the Estate of Eda Rubner under the Last Will and Testament of Eda Rubner dated January 12, 2003, Respondents/Responding Parties
BEFORE: Kimmel J.
COUNSEL: Arieh Bloom and Tori Joseph for the Applicants/Moving Parties
Kevin Richard for the Respondent, Brenda Bistricer
Justin Nasseri for the Estate Trustee During Litigation, Brahm Rosen,
HEARD: January 6, 2022
ENDORSEMENT
[1] Two motions came before the court on Thursday, January 6, 2022:
a. A motion by the Estate Trustee During Litigation (ETDL), Brahm Rosen for the interim recovery and preservation of property pursuant to Rules 44 and 45 of the Rules of Civil Procedure (the “ETDL Preservation Motion”); and
b. A motion by the applicants, Joseph and Marvin Rubner, to compel the payment of an outstanding costs award of Koehnen J. for $15,317.15 made on November 24, 2020 granting the applicants their full indemnity costs of their motion for the appointment of the ETDL (the “Costs Award”), and for the re-attendance of the respondent Brenda Bistricer to answer refusals given on her examination for discovery held on May 27, 2021 and questions arising therefrom (the “Refusals Motion”).
[2] The applicants consent to, and the respondent Brenda Bistricer does not oppose, the ETDL Preservation Motion. The order sought is supported by the evidentiary record. That order is granted in the form of Order signed by me, dated January 6, 2022, with effect as of that date and without the necessity of formal entry.
[3] On Tuesday, January 4, 2022, two days prior to the scheduled hearing of the applicants’ motion, Ms. Bistricer paid the Costs Award. Thus, the court did not need to deal with the aspect of the applicants’ motion directed to the enforcement of/non-compliance with the Costs Award.
[4] The Refusals Motion was opposed by Brenda Bistricer on various grounds. Having read the written submissions, filed, and having heard the oral submissions of counsel made on January 6, 2022, I have disposed of the various questions refused in the manner indicated on the chart attached at Schedule “A” to the form of Order signed by me, dated January 11, 2022, with effect as of that date without the necessity of formal entry. The court’s “relevance” determinations applicable to the various questions are indicated in that chart.
[5] I will briefly elaborate on the rationale for the court’s disposition of certain of the refusals made in this endorsement. The issue of costs of the Refusals Motion and costs thrown away in respect of the aspect of the applicants’ motion dealing with the Costs Award that was eventually paid are also addressed in this endorsement.
Refusals
[6] Ten (10) refusals were rendered moot by the payment of the Costs Award and the non-opposition to the ETDL’s motion. Fifteen (15) refusals were ordered answered. The remaining 11 refusals were not ordered answered. Relevance was the guiding determination, although some refusals were not ordered answered because the question, as asked, did not correspond with the point of relevance that the applicants asserted and/or the question, as asked, was argumentative and/or repetitive and redundant in light of other refusals that were ordered answered. Some examples of which questions were, and were not, ordered answered are detailed below as this will also inform the costs analysis.
Alex Bistricer Emails
[7] Among the refusals ordered answered were those relating to Brenda Bistricer’s ability to obtain relevant emails from the estate of Alex Bistricer regarding the instructions for and execution of the impugned wills. They were refused, in part, on the basis that they were technically in the hands of a third party.
[8] However, it was conceded by counsel for Ms. Bistricer that if the court was satisfied that they met the relevance threshold for purposes of discovery (which the court found they do), that it would not be necessary to force the applicants to bring a third party discovery motion since she is an estate trustee of the estate of her late husband and she can, in that capacity, access or seek access to his potentially relevant emails. The order for her to make this production is made on the strength of that representation from her counsel that the relevance finding is sufficient to cause her to take the necessary steps to ascertain if any relevant emails exist, and produce them, and that a third party production motion/order would not be required.
Respondent’s Position Regarding the prior 2003 Will
[9] Although refused during examination, counsel for Brenda Bistricer agreed that there should only be one trial to deal with all of the Rubner wills. This means that the validity of prior wills may be relevant if the challenge to the 2014 wills is successful.
[10] It was further agreed that it was appropriate to ask for a party litigant’s legal position on a relevant issue during discovery. Requiring Ms. Bistricer (or her counsel) to answer the question that sought her (legal) position regarding the validity of the prior 2003 naturally follows from this.
The Testator’s Knowledge and Understanding of Other Litigation
[11] While it was conceded by counsel for Brenda Bistricer that her knowledge of the testator’s knowledge and understanding of, and involvement in, the Mattamy litigation (commenced in the testator’s name and around the same time as the 2014 wills were being drafted and executed) could have a semblance of relevance to the issue of the testator’s capacity in the relevant time frame, it was observed that many of the questions in this area went too far afield and were argumentative. That is a fair observation, although that could be a function of the frustration of the examiner when faced with resistance to this line of questioning. The direct questions were ordered answered, whereas the argumentative ones were not.
Questions Asking for the Beliefs or Views of Ms. Bistricer
[12] It was observed by counsel for Brenda Bistricer that certain questions refused, as asked, called for evidence about Ms. Bistricer’s beliefs, views or speculation that is not directly relevant. That is a fair observation for some of the questions, but some could have been more liberally interpreted to allow for a response and, to that extent, have been ordered.
Re-attendance to Answer Questions Refused and Questions Arising Therefrom
[13] The applicants seek an order requiring Brenda Bistricer to re-attend on discovery to answer the refusals so ordered and proper questions arising therefrom. Counsel for Ms. Bistricer suggests that they be answered in writing and that a further attendance is not needed.
[14] I agree that the initial responses to the refusals now ordered answered should be provided in writing, and documents produced. However, given the nature of the issues and the questions, I do not believe that it will be efficient for the follow-up questions to be done in writing and I order that to be done by way of follow-up examination by videoconference. All parties should be guided by the court’s rulings and directions on Schedule “A” for purposes of this follow-up questioning. The court expects the questions to be direct, factual and non-argumentative and the responses to be forthcoming, including responses that may only be to confirm that the respondent has no information or knowledge.
The Costs Award and Costs Thrown Away
[15] The applicants want their costs thrown away for the portion of this motion devoted to the enforcement of the Costs Award, that was only rendered moot by the payment of the outstanding costs just prior to the hearing date. The applicants ask the court to attribute 50% of their total costs indicated in their costs outline to this issue, which was the focus of their factum. Total costs claimed by the applicants in their costs outline were $17,884.72 (inclusive of all fees, disbursements and applicable taxes). That would translate into an award of costs thrown away of $8,942.36.
[16] Counsel for Ms. Bistricer does not challenge the applicants’ entitlement to some costs thrown away and, given the amounts at issue (which do not warrant a more detailed review and analysis of the time spent on each issue), does not challenge the suggestion that they be determined based on a 50/50 split of the motion costs, as between the Refusals Motion and the enforcement of the Costs Award. However, it was suggested that this ought not to be full indemnity costs.
[17] On this point, I agree with the applicants that they should be awarded their costs thrown away on a full indemnity basis for the costs of enforcing the Costs Award. See Smith v. Harrington, 1994 CarswellOnt 586, [1994] O.J. No. 2985, 36 C.P.C. (3d) 209, 52 A.C.W.S. (3d) 503, at paras. 9-12. The respondent had the obligation to pay the costs award and has not offered any excuse for failing to do so for over a year. A party should not be put to the time and expense of having to bring a motion to compel someone to do that which the court has already ordered them to do.
[18] I am fixing those costs in the all-inclusive amount of $8,942.36 and ordering the respondent Brenda Bistricer to pay those costs within 30 days of this endorsement.
The Costs of this Motion
[19] The applicants seek their remaining costs for the Refusals Motion, also on a full indemnity basis, which would amount to a further $8,942.36. They suggest that there has been a pattern of behaviour by Brenda Bistricer, in not paying costs awards and stonewalling on various fronts that the court should reprimand through a full-indemnity costs award. They rely on the previous prior Costs Award of Koehnen J. which was made on a full indemnity basis as a result of unreasonable positions and behaviour in relation to the motion to appoint the ETDL, and suggest that the same is warranted in this case.
[20] The applicants were successful on this motion in that far more questions were ordered answered than not (especially if the questions rendered moot by last minute re-positioning are included on the “win” side).
[21] However, many of the questions within the umbrella of those rendered moot by the last minute payment of the Costs Award were also determined to be argumentative. And just under a third of the refusals were upheld. Ms. Bistricer suggests that there should be no costs of the Refusals Motion if there was divided success.
[22] Leaving aside the questions that were rendered moot (which I consider to be subsumed in the costs thrown away for the enforcement motion, as those refusals would have been raised in that context irrespective of whether there were other refusals to move on), fifteen (15) questions were ordered answered and ten (10) refusals were upheld. The applicants are entitled to some costs for the Refusals Motion, but not full indemnity costs and there should be some discount to reflect that not all refusals were ordered answered.
[23] In the exercise of my discretion under Rule 57.01 and s. 131 of the Courts of Justice Act, including the principle of indemnity (which does not mean full indemnity), reasonable expectations of costs on a Refusals Motion, and that much of the difficulty appears to be driven by the animosity between the parties, both in terms of the refusals and tone of questioning, I consider partial indemnity costs to be the appropriate scale of costs for the Refusals Motion.
[24] I do not have a breakdown, but there is no magic formula and I have determined the appropriate amount of partial indemnity costs to be $5,500. The respondent Brenda Bistricer’s partial indemnity costs to respond to the motion were indicated to be approximately $5,000. This amount is determined to be fair, proportionate, and within the objectively reasonable expectation of the respondent as an amount of costs that she could face if unsuccessful in her opposition to the entirety of the Refusals Motion.
[25] The applicants’ partial indemnity costs should be further discounted to reflect that the applicants were not entirely successful (there having been some measure of divided success on the Refusals Motion) and I am therefore reducing the costs awarded to the applicants for the Refusals Motion to the all-inclusive amount of $4,000.
Overall Costs
[26] Accordingly, the total costs payable by the respondent Brenda Bistricer to the applicants for this motion are fixed in the amount of $12,942.36 and ordered payable forthwith, and in any event within 30 days of the date hereof. The court expects these to be paid in a timely manner.
Case Management
[27] The parties agree that this case would benefit from case management. The applicants hope to complete their discoveries based on the court’s orders herein and request a pre-trial so that a trial date can be set. History has shown that things do not always progress smoothly given the animosity between these siblings.
[28] I was provided with the case of Abrams v. Abrams, 2010 ONSC 2703, 2010 CarswellOnt 2915 as authority for me to appoint myself to case manage this proceeding on the Estates list. I am prepared to informally case manage this matter and have included in the order I have signed a provision to that effect and indicating that the remaining pre-trial matters should be scheduled before me when possible.
Kimmel J.
Date: January 11, 2022