COURT FILE NO.: 27755/18
DATE: 2022-10-04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROLAND PINARD in his personal capacity and also as ESTATE TRUSTEE WITH A WILL IN THE ESTATE OF JEAN PINARD also known as JEAN NELLIE PINARD
Applicant
– and –
YVONNE GILCHRIST and EDWARD JONES
Respondents
Brian L. DeLorenzi, for the Applicant
Paul Johnson, for the Respondent, Yvonne Gilchrist
Krystyne Rusek, for the Respondent, Edwards Jones
HEARD: Written Submissions
RASAIAH J.
decision on costs
[1] Further to my reasons on the motion, released January 19, 2022, the court requested written submission for legal costs of the motion payable on a substantial indemnity basis or, in the alternative, on a partial indemnity basis.
[2] The moving party was successful on the motion, and the court awarded the relief sought.
[3] Prior to bringing the motion there is no question that the moving party made attempts to resolve the matter absent a motion, however, the estate trustee refused to do so for reasons argued at the motion.
Rule 57 Factors
[4] The relevant factors under Rule 57.01(1) of the Rules of Civil Procedure are as follows:
The Principle of Indemnity, including, where applicable, the experience of the lawyers for the party entitled to costs as well as their rates charged and the hours spent by that lawyer.
[5] The moving party seeks $15,112.97 as substantial indemnity costs inclusive of disbursements and tax.
[6] In the alternative to the forgoing, the moving party seeks legal costs on a partial indemnity basis of $10,199.16.
[7] I am of the view that costs ought to be awarded to the moving party. However, there is an argument of deferral and, as to whom the costs should be made payable by based on the circumstances of the estate and the unresolved/undetermined issues in the application itself.
[8] I agree that it is only reasonable to expect, in this case, bearing in mind the ongoing litigation and the fact that experienced counsel is representing the parties, that the unsuccessful party on the motion, in this case the estate, would have reasonably expected to pay costs.
[9] Numerous correspondence was exchanged in connection with this motion along with the preparation of motion materials, responding materials, reply materials, a moving party’s factum, a responding factum and a reply factum. Furthermore, full argument of the motion was required on a long motion.
[10] It is submitted that the legal fees sought by the moving party are reasonable bearing in mind the steps that were required to be taken. The responding party states the costs sought are excessive.
[11] The steps taken, I find correspond with the motion issue, number of arguments/grounds of consideration presented, and attempts to resolve the issue absent a motion, but I do agree that they appear higher than one would expect but acknowledge the number of arguments made by the responding party that the responding party asked the court to consider.
The Complexity of the Proceeding
[12] I agree this issue should not have been a complex matter and often a duty to pass accounts is accepted by an estate trustee such that a motion of this kind is not required. However, that did not occur.
[13] What otherwise could have been a straightforward matter was complicated by the estate’s position, evident in the legal position in response to the motion. I did not find that all the grounds or issues raised by the responding party were factors of consideration as articulated in my reasons on the main motion relief itself, contrary to the argument of the responding party. It became more than a simple issue based on the number of questions raised that the court was asked to consider, and the lack of sufficient information filed by the responding party on such considerations on the motion itself as articulated in my reasons.
[14] The estate trustee indeed argued all grounds to resist the relief sought in the motion. That position required the moving party to incur increased expense in response to those legal positions, including but not limited to documents required to be filed and the hearing of the motion.
[15] I acknowledge that the Courts may impose costs personally on estate trustees or deduct them from the estate trustee’s compensation for inappropriate behaviour, and in some cases, beneficiaries who unnecessarily or unreasonably challenge or object may bear costs. The estate trustee is a also a beneficiary.
[16] I agree that had the estate trustee provided the information and documentation requested by the moving party prior to the commencement of the motion the sought legal fees could have been avoided or would have been lower. The estate trustee’s refusal to provide information and pass his accounts was the direct reason for the motion and incurrence of legal costs of the moving party.
[17] I have noted that it is the moving party’s understanding that the estate trustee has administered the estate to the point of him receiving his inheritance as residual beneficiary. At the same time, the estate trustee’s position is that there will be insufficient assets in the estate to pay the specific legacies pursuant to subparagraph 111(h) of the Will in the event the Edward Jones joint account funds (“disputed account”) do not form part of the estate.
[18] It is requested that either the estate trustee personally pay the legal costs or that an order be made that they be paid from his share of the residue of the estate. The moving party argues that it would be unfair if the legal costs of the motion are paid in any way that would prejudice the other beneficiaries. These arguments may not lack merit pending the outcome of the application.
[19] The estate trustee states that the above is not the case, and he has received a specific gift. The responding party reiterates that the issue of the disputed account which is significant remains outstanding. I acknowledge that is very true, and I have considered this. This issue is raised as a relevant issue, as if it is not included in the estate, insufficient funds may remain to pay out legacies and there is an argument that there will not be any residue at all.
[20] The estate trustee acknowledges the success of the moving party but takes the view that a much lower amount of costs should be ordered (not payable by the estate trustee personally) or alternatively that the issue of determining the costs should be deferred because of the foregoing set out above.
[21] When I balance all the above considerations, I choose to exercise my discretion to defer the issue of costs of the successful party to the justice who hears the application, and in particular, the basis (substantial or partial indemnity) and amount based on same that should be awarded to the moving party and by whom it should be paid, including the claim that it should be paid by the estate trustee in that capacity, and/or in his capacity as beneficiary. I do find that the successful party should be awarded costs based on the outcome of the motion, however, the application hearing court would be in my view in a better position to assess the veracity of the estate trustee’s concerns and arguments raised on the main motion relief, this costs issue, and further on the prejudice that may result to beneficiaries of a cost award based on the position taken by the estate trustee on the motion, which the hearing of the application may inform the analysis of the appropriateness of the estate trustee’s position, having regard for my findings balanced against the hearing justice’s findings on the application.
Rasaiah J.
Released: October 4, 2022
COURT FILE NO.: 27755/18
DATE: 2022-09-27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROLAND PINARD in his personal capacity and also as ESTATE TRUSTEE WITH A WILL IN THE ESTATE OF JEAN PINARD also known as JEAN NELLIE PINARD
- and –
YVONNE GILCHRIST and EDWARD JONES
decision on costs
Rasaiah J.
Released: October 4, 2022