NEWMARKET COURT FILE NOS.: CV-12-111189-ES CV-13-115662

DATE: 2022 08 17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Anandpreet Singh

Applicant

– and –

Gurucharan Jit Singh, Ranbir Kohli, Amarjit Singh, Deshpreet Kaur, Jasbir Kaur Singh, and Jasmeet Kaur

Respondents

– and –

Gurucharan Jit Singh

Applicant

– and –

Anandpreet Singh, Ranbir Kohli, Amarjit Singh, Deshpreet Kaur, Jasbir Kaur Singh, and Jasmeet Kaur

Respondents

Charles Davidson, for Anandpreet Singh/ Applicant/Respondent and Jasmeet Kaur, Respondent charles@davidsonslawyers.com

Self-Represented, for the Respondent/Applicant Gurucharan Jit Singh guru2singh@gmail.com Self-Represented, for the Respondent Ranbir Kohli ranbirkaurkohli100@gmail.com

Self-Represented, for the Respondent Amarjit Singh localdairy@gmail.com

Self-Represented, for the Respondent Deshpreet Kaur deshpreetksingh@icloud.com Self-Represented, for the Respondent Jasbir Kaur Singh ranijasbir@comcast.net

HEARD: November 15-19, 22, 24-25, December 2-3, 2021, February 7, 2022

DECISION ON COSTS

LEIBOVICH J.

[1] Harbhajan Kaur Singh (the “deceased”) died on February 15, 2012. At the time of her death, she had six children. Her son Anandpreet Singh (“Anandpreet”) sought to prove her last will and codicils and be declared the estate trustee. Her other sons Gurucharan Singh (“Guru”) and Amarjit Singh (“Amarjit”), and her daughter Ranbir Kohli (“Ranbir”), challenged the will and codicils. In addition, Guru brought an application declaring that the money held by his mother and his brothers and sisters – and Anandpreet’s wife Jasmeet Kaur Singh (“Jasmeet”) – in joint bank accounts belongs to the estate and not to his siblings. Both the applications (CV-12-111189-ES, CV-13-115662) were heard together before me over eleven days via Zoom. I found, for reasons set out at Singh v. Singh, 2022 ONSC 3502, that the deceased’s October 25, 2001 will and subsequent codicils were valid; and the monies contained in the various joint accounts, with minor exceptions, were meant to be gifts to the surviving holder of those accounts and belong to them and not the estate. These are my reasons with respect to costs.

Law and Analysis

[2] The first step in deciding costs in estate litigation is to determine whether one or more of the public policy considerations apply. If so, as a general principle, the parties’ reasonable costs are to be paid from the testator’s estate. As stated by the Court of Appeal in McGrath v. Joy, 2022 ONCA 119, at para. 91:

Accordingly, if there are reasonable grounds on which to question the execution of a will or the testator's capacity to make the will, it is in the public interest that such questions be resolved without cost to those questioning the will's validity. And, where the difficulties or ambiguities that gave rise to the litigation are caused by the testator, it is again appropriate for the testator's estate to bear the costs of their resolution.

[3] As stated by the Court of Appeal in Sawdon Estate et al. v. Watch Tower Bible and Tract Society of Canada, 2014 ONCA 101, 119 O.R. (3d) 81, at para. 85:

The public policy considerations at play in estate litigation are primarily of two sorts: (1) the need to give effect to valid wills that reflect the intention of competent testators; and (2) the need to ensure that estates are properly administered. In terms of the latter consideration, because the testator is no longer alive to rectify any difficulties or ambiguities created by his or her actions, it is desirable that the matter be resolved by the courts. Indeed, resort to the courts may be the only method to ensure that the estate is properly administered. [Footnote omitted.]

[4] If the one or more of the relevant public policy considerations do not apply, the court shall follow the civil litigation costs regime established by s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194: see McGrath v Joy, Sawdon Estate v. Watch Tower Bible and Tract Society of Canada; McDougald Estate v. Gooderham (2005), 2005 CanLII 21091 (ON CA), 255 D.L.R. (4th) 435 (C.A.), at paras. 78-80.

[5] In my view, none of the public policy considerations apply in this case. The wills and codicils were clear and unambiguous. They were properly witnessed and executed. There were no suspicious circumstances or any evidence of medical incapacitation. The parties attacked the will because they believed their brother Anandpreet had improperly influenced their mother and they did not feel that he should get the mother’s house. I rejected those assertions. Furthermore, when the deceased’s writings were found it was patently obvious that the will and codicils matched her intentions. Amarjit, Guru and Ranbir lost their challenge, none of the public policy considerations apply and, thus, the regular costs regime applies.

[6] The jurisdiction of this court to award costs is found in s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43:

131(1) 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.

[7] Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 sets out the factors for the court to consider on an award of costs:

57.01(1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party's denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different solicitor; and

(i) any other matter relevant to the question of costs.

(2) The fact that a party is successful in a proceedings or a step in a proceedings does not prevent the court from awarding costs against the party in a proper case.

[8] The myriad of factors listed in Rule 57.01 ensures that a court considers all the relevant circumstances which allows the court to determine an amount that is fair and reasonable for the unsuccessful party to pay in a particular proceeding, rather than what the actual costs were of the successful litigant: see Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.); Zesta Engineering v. Cloutier (2002), 2002 CanLII 45084 (ON CA), 164 O.A.C. 234 (C.A.); Moon v. Sher (2004), 2004 CanLII 39005 (ON CA), 246 D.L.R. (4th) 440 (Ont. C.A.); Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, at para. 43.

[9] An award of costs on a substantial indemnity basis is exceptional. It can arise from the conduct of a party where it rises to a level that is considered reprehensible, egregious and worthy of sanction. As the Court of Appeal stated in Davies v. Clarington, 2009 ONCA 722, 100 O.R. (3d) 66, at para. 40.

In summary, while fixing costs is a discretionary exercise, attracting a high level of deference, it must be on a principled basis. The judicial discretion under rules 49.13 and 57.01 is not so broad as to permit a fundamental change to the law that governs the award of an elevated level of costs. Apart from the operation of rule 49.10, elevated costs should only be awarded on a clear finding of reprehensible conduct on the part of the party against which the cost award is being made. As Austin J.A. established in Scapillati, Strasser should be interpreted to fit within this framework -- as a case where the trial judge implicitly found such egregious behaviour, deserving of sanction.

Also see Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239 at para. 43.

Positions of the Parties

[10] Anandpreet submits that Guru, Amarjit and Ranbir should be ordered to pay costs on a substantial indemnity or full indemnity basis with the remnant of the costs being paid for by the estate. Anandpreet points towards the rejected offers to settle, the protracted nature of the litigation, caused in no small part to Guru’s use of multiple lawyers, and to the nonsensical nature of the litigation, especially with respect to Guru who was, in some instance, arguing against his own economic interest. Anandpreet also submits that Guru was the driving force behind the litigation and he refused to admit numerous issues. Guru admits that he had six different counsel but they did not delay anything, and that the matter would have concluded in 2020 but for Amarjit’s refusal to accept the offer to settle. He points out that Anandpreet changed his lawyer once and refused to provide an accounting of the estate’s assets. He submitted:

Consequently, I submit that an appropriate amount of costs in this case is $50,000, minus whatever amount you feel appropriate to deduct for Anandpreet’s withdrawn summary judgment motion, with some of the costs award payable by the estate. In light of his conduct, I also submit that Amarjit’s share of the costs payable should be larger than either Ranbir’s or mine.

[11] Ranbir has declined to provide any written submissions.

[12] Amarjit has provided written submissions. He is self-represented. They were only received on August 15, 2022 as Amarjit sent a copy to counsel but not to the court. His submissions are essentially a response to my reasons for decision on the applications. There are, however, some comments towards the end of the written document that are relevant to costs. He wrote:

Amarjit opted to pull away from the joint representation after paying Guru the amount sought by Guru.

No other Law firm represented me in this case.

I was bullied by Guru on several occasions for the last ten years and several motions were brought by Guru and Anand to take me of the cases. I have hundreds of e mails from Guru in the last 2 years.

I discussed the offer of Anand’s lawyer in 2020 for offer to settle Guru was not in agreement, as all three parties needed to be in acceptance than only the offer would be valid.

The Offer to Settle

[13] Anandpreet made an offer to settle that was not accepted. He obtained a more favourable result at the end of the hearing. Rule 49.10 of the Rules states:

(1) Where an offer to settle,

(a) is made by a plaintiff at least seven days before the commencement of the hearing;

(b) is not withdrawn and does not expire before the commencement of the hearing; and

(c) is not accepted by the defendant,

and the plaintiff obtains a judgment as favourable as or more favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer to settle was served and substantial indemnity costs from that date, unless the court orders otherwise. R.R.O. 1990, Reg. 194, r. 49.10 (1); O. Reg. 284/01, s. 11 (1).

[14] Guru submits in response that the offer is not a true Rule 49.10 offer as all three respondents had to accept and the offer was not severable. He is correct in that regard. As stated by Tzimas J in Yelland v. Sunrise et al., 2019 ONSC 2842, at para. 42.

I have concluded that Sunrise’s offer of April 26, 2018 was not a proper Rule 49.10 offer and accordingly, the cost consequences that may have been engaged by a proper Rule 49 offer are not applicable. I agree with the plaintiffs’ submissions that an offer to settle between multiple plaintiffs that is non-severable is not a proper Rule 49 offer and cannot attract adverse cost consequences, see Lumsden v. Delpeche, [2003] O.J. No. 2248, Mayer et al. v. 1474479 Ontario Inc. [2014] ONSC 2622, and Hayden v. Stevenson, et al., 2010 ONSC 633.

Allocation of Time and Costs Between the Two Applications

[15] Both applications were heard at the same time. The vast bulk of the evidence and the time spent at the trial was devoted to the first application: the validity of the wills and codicils. In my view, 80% of the time was spent on the wills challenge and 20% of the time was spent on Guru’s resulting trust application. With respect to Guru’s resulting trust application, 95% of the evidence and trial time on the resulting trust application was spent on the joint bank accounts of $300,000 and $90,000, 2.5% percent of the evidence and trial time dealt with the $60,000 joint bank account and 2.5% percent of the time dealt with the $12,679.39 joint bank account with Jasmeet Kaur Singh.

[16] With respect to the bill of costs from Ananpreet’s first counsel, Mr. Levesque, there are some categories which clearly relate only to the resulting trust application.

[17] Using the above formula, I find that the legal costs are as follows:

1. The wills and codicils challenge:

a) The total disbursements is $16,396.73, including HST. 80% of those disbursements should be attributed to the wills challenge;

b) The total legal costs from Mr. Levesque’s bill of costs was $158,915.73. I have deducted from that amount $2,660, which is specifically noted in the bill of costs as time spent reviewing and consolidating the resulting trust application, for a subtotal of $156,255.73. As stated, 80% of the time should be allocated to the wills application for a total of $125,004.58;

c) Mr. Davidson’s bill of costs totals $142,288.47. I agree with Guru that an amount should be deducted from the bill to account for the waste resulting from the change in counsel. I would deduct $11,000. Therefore, 80% of $131,288.47 should be allocated to the wills application for a total of $105,030.78.

d) The total costs for the wills challenge is $230,035.37 plus HST, plus 80% of the disbursements.

2. The resulting trust:

a) The total disbursements is $16,396.73, including HST. 20% of those disbursements should be attributed to the resulting trust application.

b) The costs from Mr. Levesque’s bill of costs is $31,251.15 plus $2,660, for a total of $33,911.15.

c) The costs from Mr. Davidson is $26,258.10.

d) The total costs for the resulting trust application is $60,169.25 plus HST, plus 20% of the disbursements.

Allocation of Costs

[18] I find the following with respect to the wills and codicils challenge:

1. It is evident that while Guru, Amarjit and Ranbir all contested the wills and codicils, they did not have a unified strategy. I have attempted, where possible, to allocate costs to the individual responsible, keeping in mind that the vast majority of the legal costs with respect to the challenge for the wills and codicils have to be borne by all of Guru, Amarjit and Ranbir. But, for example, the costs associated with Guru’s motion for an interim distribution that was dismissed on consent should be borne only by Guru;

2. This is not a case for substantial indemnity. I agree that, as a matter of common sense, Guru’s use of multiple lawyers must have created some duplication but Mr. Levesque’s bill of costs do not provide me with an ability to quantify that duplication. It is evident that Guru caused additional costs by his request for additional information after the matter was set down for trial. He will have to pay that extra costs. I am also mindful that Ranbir, Amarjit and Guru admitted that the examinations should be filed, saving a significant amount of time. Similarly, they agreed to the filing of the documentary briefs. I found that their was no merit in their challenge to the wills and codicil but this, by itself, is not reprehensible, egregious conduct, worthy of sanction. As stated above, the Rule 49.10 offer required all three to accept. Guru submitted that Amarjit refused to agree and Amarjit has submitted the opposite. I have no ability to assess who is correct. Since the offer was not severable, it was not a proper Rule 49.10 order.

3. As stated above, the total cost for the wills challenge is $230,035.37 plus HST plus disbursements. Of those legal costs, $28,550 (the costs associated with Amarjit’s second examination, Guru’s motion for an interim distribution and time responding to Guru’s request for production) should be deducted for a subtotal of $201,485.37. These costs should be borne by all three equally on a partial indemnity basis. Amarjit must also bear the costs associated with his second examination, and Guru must also bear the costs associated with his motion for an interim distribution and his requests for production that postdated the setting down of the matter for trial. Therefore:

a) Ranbir must pay costs on a partial indemnity basis, in the amount of $40,297.07 ($201,485.37 divided by 3, multiplied by .6) plus HST plus $4,372.46 for disbursements (1/3rd of her share of the disbursements);

b) Amarjit must pay costs on a partial indemnity basis in the amount of $40,297.07 plus the costs for his second examination in the amount of $3,748.50 ($6,247.50 multiplied by .6) for a total of $44,045.57 plus HST plus $4,372.46 for disbursements (1/3rd of his share of the disbursements); and

c) Guru must pay costs on a partial indemnity basis in the amount of $40,297.07 plus the costs of his motion for an interim distribution and time spent responding to his request for production which is $13,381.50 ($22,302.50 multiplied by .6) for a total of $53,678.57 plus HST plus $4,372.46 for disbursements (1/3rd of his share of the disbursements).

The Resulting Trust Application

[19] Anandpreet presented an offer in response to Guru’s resulting trust application. That offer was much more favourable than the result received by Guru. I dismissed Guru’s application with respect to the joint accounts, except for the few exceptions where I ordered monies totalling approximately $13,000 to be returned to the estate. In my view, given that the almost exclusive focus of the resulting trust application was the joint bank accounts of $300,000 and $90,000 which was dismissed, Guru will have to pay costs for his failed application. Even though some small amounts were ordered to be repaid to the estate from the joint accounts, the amount of time spent on those accounts was negligible.

[20] The total costs for the resulting trust application is $60,169.25 plus HST plus $3,279.37 (20% of the disbursements). Guru will be required to pay costs on a partial indemnity basis in the amount of $36,101.55 ($60,169.25 multiplied by .6) plus HST plus $3,279.37.

Conclusion

[21] Ranbir must pay costs in the amount of $40,297.07 plus HST plus $4,372.46 for disbursements.

[22] Amarjit must pay costs in the amount of $44,045.57 plus HST plus $4,372.46 for disbursements.

[23] Guru must pay costs in the amount of $89,780.12 plus HST plus $7,651.83 for disbursements.

[24] Anandpreet is entitled to be paid the balance of the legal costs, being $116,081.44 plus HST, from the estate.

[25] All of Guru’s, Amarjit’s and Ranbir’s costs orders shall be deducted prior to any distribution from the estate that they are entitled to receive. If there is a remnant, it must be paid within 90 days.

The Honourable Justice H. Leibovich

Released: August 17, 2022

NEWMARKET COURT FILE NOS.: CV-12-111189-ES CV-13-115662

DATE: 2022 08 17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Anandpreet Singh

Applicant

– and –

Gurucharan Jit Singh, Ranbir Kohli, Amarjit Singh, Deshpreet Kaur, Jasbir Kaur Singh, and Jasmeet Kaur

Respondents

– and –

Gurucharan Jit Singh

Applicant

– and –

Anandpreet Singh, Ranbir Kohli, Amarjit Singh, Deshpreet Kaur, Jasbir Kaur Singh, and Jasmeet Kaur

Respondents

decision on costs

Leibovich J.

Released: August 17, 2022