Endorsement on Costs

Court File No.: CV-23-32935-ES
Date: June 20, 2025
Superior Court of Justice – Ontario

Re: Martin Douglas Atkins and Tammy Christine Drazilov, Estate Trustees of the Estate of Christine Black, also known as Christine Dorothy Black, Applicants
And: Bruce Albert Chamberlain, Respondent

Before: Jacqueline A. Horvat
Counsel:
Elizabeth A. Papp, for the Applicants
Dean Clark, for the Respondent
Heard: In Writing

Background

[1] On February 7, 2025, I decided that the Respondent, Bruce Albert Chamberlain (“Bruce”), who is the deceased’s brother, failed to rebut the presumption of a resulting trust and failed to establish that the proceeds of certain bank accounts that were jointly held by him and the deceased were the subject of a valid gift made by Christine to him (2025 ONSC 866). The jointly held accounts, as a result, were found to be assets of the deceased’s estate and form part of the residue of her estate for distribution to the residual beneficiaries, the Applicants.

[2] The Applicants seek $71,679.03 in costs, inclusive of HST and disbursements, payable personally by the Respondent on a full indemnity basis. The Respondent takes the position that both his and the Applicants’ costs should be paid from the deceased’s estate.

[3] For the reasons that follow, I find that the Applicants are entitled to their costs payable by the Respondent on a partial indemnity basis of $45,717.28, inclusive of disbursements and HST. In my view, considering the circumstances of this case and the principles applicable to the awarding of costs, this is a fair and reasonable award of costs. I also find that the Respondent is not entitled to his costs payable by the estate.

General Principles

[4] The general principles governing costs in civil litigation are well established:

• Costs are in the court’s discretion under s. 131 of the Courts of Justice Act, RSO 1990, c C.43;
• Rule 57.01(1) of the Rules of Civil Procedure, RRO 1990, Reg 194, provides factors for my consideration in the exercise of my discretion to award fair and reasonable costs;
• However, fairness and reasonableness are the overriding principles that govern costs awards: Boucher v. Public Accountants Council for the Province of Ontario.

[5] In estates litigation, the first issue that must be decided is whether costs should be paid from the estate or whether costs should follow the event, as they do in ordinary civil litigation. Traditionally, where the litigation arose because of the actions of the deceased, or where the litigation was reasonably necessary to ensure the proper administration of the estate, then the costs of all the parties are generally paid out of the estate: Reid Estate v. Reid, 2010 ONSC 3800, at para. 3; McDougald Estate v. Gooderham, at paras. 78-80. These principles apply when the litigation is caused by a dispute of the legal effect of a gratuitous transfer and the presumption of a resulting trust is applied: Reid, at paras. 2-5.

Positions of the Parties

[6] The Applicants argue that their costs should be payable by the Respondent personally on a full indemnity basis, considering the Respondent’s lack of cooperation in providing an accounting, his failure to produce any evidence to support his position that the jointly held accounts were a gift, his actions in lengthening the proceedings, and the Respondent was acting in his own self-interest. They seek fees on a full indemnity basis of $68,139, inclusive of HST, and disbursements of $3,540.03, inclusive of HST. They also argue that the Respondent’s costs should not be paid by the estate.

[7] The Respondent argues that both his costs, and those of the Applicants, should be paid out of the estate pursuant to McDougald Estate because the litigation arose because of the actions of the deceased. He also argues that he acted reasonably in believing that the funds in the joint account were a gift and that he did not behave in an abusive manner, bring proceedings wholly devoid of merit, or unnecessarily run up the costs of the litigation.

[8] Neither the Applicants nor the Respondent delivered an offer to settle. The Respondent did not quarrel with the hours spent by the Applicants’ lawyer or the hourly rate sought by her.

Analysis

[9] I am satisfied that the ordinary costs rules that apply in civil litigation should be followed in this case. The litigation here was caused by the Respondent disputing the legal effect of the joint bank accounts in circumstances where the presumption of a resulting trust clearly applied. I agree with the Applicants that the litigation was not caused by the deceased’s decision to create joint bank accounts with the Respondent. All parties agreed that the joint bank accounts were opened for the deceased’s care.

[10] As in Reid, the Respondent in this case “took a substantial risk in undertaking the burden of rebutting the presumption of resulting trust on the basis of a set of circumstances that were troubling and suspicious.” In these circumstances, it would not be fair or just to the Applicants if the costs of either party were paid out of the estate, and such an order would substantially deplete the estate: Reid, at para. 6.

[11] Costs should follow the event. The Applicants were successful on this application and are entitled to their costs, payable by the Respondent personally.

[12] I apply the relevant factors identified in r. 57.01(1) to this case, as follows:

• The rates charged by Ms. Papp and her law clerk are reasonable in my view, given their years of experience. The time spent by each is fair and reasonable in the circumstances of this case;
• The amount claimed in this action was substantial, and the Applicants were wholly successful;
• The application was of moderate complexity and entirely factual given that the parties agreed on the state of the law; and
• The application was of great importance to the parties.

[13] I do not accept the Applicants' argument that the Respondent took unreasonable positions or responded to the application in a way that lengthened these proceedings unjustifiably. The Respondent had a reasonable belief that the joint accounts were created as a gift to him; however, there was no evidence to corroborate or support his belief. In my view, it is neither fair nor reasonable to award either full or substantial indemnity costs in these circumstances.

[14] The Applicants shall be awarded their costs on a partial indemnity basis of $37,325 (105.5 hours x $350 + 5 hours x $80), plus HST of $4,852.25. The disbursements submitted by the Applicants appear reasonable and should be paid by the Respondent in the total amount claimed of $3,540.03, inclusive of HST. The Respondent did not dispute this amount.

Conclusion

[15] Considering all the factors set out in r. 57.01(1), the principles enunciated in the case law, and all the facts and circumstances of this case, including those reviewed above, in my view, a fair and reasonable costs award to the Applicants is $45,717.28, inclusive of disbursements and HST.

Jacqueline A. Horvat
Date: June 20, 2025