Court File No.: CV-22-0233-00 Date: 2024-02-20

Superior Court of Justice - Ontario

BETWEEN:

Jennifer Lindstrom Self-Represented Plaintiff

• and -

Executor, Estate of Oiva Paju, Chris Paju J. Clark, for the Estate Respondent

HEARD: In writing, at Thunder Bay, Ontario

BEFORE: Mr. Justice W. D. Newton

Decision On Costs

Lindstrom costs

[1] By decision dated December 29, 2023, Lindstrom v. Paju, 2023 ONSC 7289, I found that two documents purported to be codicils by Ms. Lindstrom were not codicils. I directed that the Estate was to deliver costs submissions limited to five pages plus costs outlines and that Ms. Lindstrom was to deliver cost submissions subject to the same limitations.

[2] The Estate seeks costs of over $57,000 on a substantial indemnity basis or over $43,000 on a partial indemnity basis plus HST plus disbursements of $3,298.26 plus HST. The Estate also seeks costs of the Estate solicitor that the Estate claims are related to this litigation in an amount between $10,000 to $15,000 plus HST.

[3] Ms. Lindstrom filed over 20 pages of submissions which mostly reargued the case over whether the documents were codicils and claimed that she should be compensated for costs in the amount of $25,000 “for years of work related to the codicils”, “for four and one half years of work attempting to have the funds from the sale of personal use properties legally administered”, “financial compensation for being subjected to inappropriate questioning”, and “releasing confidential medical information”.

General Principles

[4] The Rules of Civil Procedure set out the factors that may be considered by the court in awarding costs:

Factors in Discretion

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 lawyer;

(h.1) whether a party unreasonably objected to proceeding by telephone conference or video conference under rule 1.08; and

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

[5] An award of costs is a matter in the discretion of the court by virtue of section 131(1) of the Courts of Justice Act. The overriding principle is one of reasonableness. Costs should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party rather than a mathematical calculation of time spent or the rates charged by the successful party’s lawyer. See Zesta Engineering v. Cloutier, [2002] O.J. No. 4495 (Ont. C.A.), at para. 4.

The Estate

[6] The main arguments advanced by the Estate are that the proceeding was unnecessary and that it was prolonged by the conduct of Ms. Lindstrom, which was improper, vexatious and, again, unnecessary.

[7] The Estate emphasizes that the Estate was entirely successful in responding to each challenge made by Ms. Lindstrom. Three case conferences were required to direct Ms. Lindstrom on how the trial of an issue was to proceed. A motion was required because Ms. Lindstrom refused to turn over originals of the alleged codicils. Ms. Lindstrom filed an affidavit from her son and, when attempts were made to cross-examine on that affidavit, Ms. Lindstrom refused to produce her son for cross-examination. The Estate was required to prepare a motion for an interprovincial summons. Ms. Lindstrom then withdrew her son’s affidavit.

[8] Throughout, Ms. Lindstrom has set over 500 accusatory and threatening emails to the Estate Trustee and the Estate’s counsel. She reported the Estate’s solicitor to the Law Society and sued him in Small Claims Court. She threatened to have criminal proceedings brought against the Estate Trustee and other witnesses. A contempt motion was necessary because she continued to make threats if she was not given funds from the Estate.

Ms. Lindstrom

[9] Ms. Lindstrom’s submissions are primarily an attack on the decision. She repeats many of the arguments made on the trial of an issue and raises new arguments challenging the conclusion of the handwriting expert retained by the Estate. She alleges fraud on the part of the Estate.

[10] Other issues raised by Ms. Lindstrom are issues regarding the Estate accounting.

[11] Additionally, Ms. Lindstrom claims that she should be entitled to costs for her time in questioning the administration of the Estate and claims damages for what she described as inappropriate action on the part of the Estate, its counsel, and witnesses.

[12] With respect to the Bill of Costs put forward on behalf of the Estate, Ms. Lindstrom says that she should not be responsible for the fees incurred by the Estate.

Analysis and Disposition

[13] The value of the Estate is substantial with assets exceeding $1 million. Ms. Lindstrom is a beneficiary. The purported codicils would have given her an increased portion of the Estate.

[14] I agree with the submissions of the Estate that Ms. Lindstrom’s actions have resulted in the Estate incurring unnecessary and significant costs. I also agree that some of Ms. Lindstrom’s actions were improper and are fairly described as vexatious. This includes her harassment of the Estate, the Estate’s counsel, and witnesses.

[15] This is a proper case for costs on a substantial indemnity basis.

[16] I have carefully scrutinized the Bill of Costs. The sums claimed for administrative staff are not allowed. Based on the Bill of Costs, the work performed by the administrative staff was secretarial and, therefore, is to be included in the lawyer’s rate which reflects a component for overhead. Similarly, I am disallowing the claim for articling students since some the work is duplicative. For the junior lawyer I would allow a substantial indemnity fee of $7,500. The rate claimed for Mr. Clark is reasonable and the total amount of hours claimed is justifiable in this case. I allow a fee of $40,000 for Mr. Clark on a substantial indemnity basis. HST will be added to the sum of $47,500. Disbursements of $3,700.98 including HST are approved. Of Mr. Jones’ account to the Estate, I allow the amount claimed of $13,238.47 including fees, disbursements, and HST. I am satisfied that the identified entries relate to work necessary for this litigation. These amounts are fair and reasonable for the work that the Estate had to take to respond to the claims made by Ms. Lindstrom.

[17] The Estate shall have its costs in the amount of $67,214.45 payable by Ms. Lindstrom. Whether any additional costs are payable out of the Estate can be considered on the passing of accounts.

“Originally signed by”

The Hon. R.S.J. W. D. Newton

Released: February 20, 2024