COURT FILE NOS.: CV-20-00652038-00ES

DATE: 202 51128

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE ESTATE OF CYRIL HIRSH ROSENTHAL, deceased

RE: JONATHAN ROSENTHAL and BENJAMIN BARRETT

Applicants

AND:

DAVID ROSENTHAL, in his capacity as Estate Trustee for the Estate of Joseph Rosenthal, SAMUEL ROSENTHAL, in his capacity as Estate Trustee for the Estate of Joseph Rosenthal, CHERYL ROSENTHAL, in her capacity as Estate Trustee for the Estate of Joseph Rosenthal, SYED PERVEZ, in his capacity as Estate Trustee of the Estate of Cyril Hirsh Rosenthal, RACHEL BARRETT, JACOB BARRETT, JOSHUA YUE ROSENTHAL-WANG and AVIVA MING ROSENTHAL-WANG

Respondents

BEFORE: Justice A.A. Sanfilippo

COUNSEL: Clifford Cole and Matthew Karabus , for the Moving Party Applicants

Adam Stephens , for the Respondent, Syed Pervez

David Wagner , for the Respondents, David Rosenthal, Samuel Rosenthal and Cheryl Rosenthal, in their capacities as Estate Trustees of the Estate of Joseph Rosenthal

HEARD: November 17, 2025

ENDORSEMENT

[ 1 ] In the Reasons for Judgment released April 3, 2025, [1] I determined the motion brought by the Applicants, Jonathan Rosenthal and Benjamin Barrett, as Succeeding Estate Trustees (the “Applicants” or the “Succeeding Estate Trustees”) of the estate of Cyril Hirsh Rosenthal (the “Estate”) for a declaration that the former estate trustees, Syed Pervez and the late Joseph Rosenthal (collectively, the “Respondents” or the “Former Estate Trustees”), are in contempt of the Judgment granted, on consent, by Justice Cavanagh on December 17, 2020 (the “Judgment”). The Applicants sought a finding of contempt (the “Contempt Motion”) on the submission that the Former Estate Trustees breached para. 5 of the Judgment which ordered that the Former Estate Trustees deliver to the Succeeding Estate Trustees, all documents and other information in their “possession, power and control relating to the Estate and the administration of the assets and liabilities thereof” (the “Document Production Order”).

[ 2 ] For the reasons set out in the Reasons for Judgment, I dismissed this Contempt Motion. In para. 93 of the Reasons for Judgment, I directed a process for the parties to deliver written submissions on the issue of costs of this Contempt Motion, if the parties could not agree on this issue. By Costs Endorsement released July 31, 2025, I determined the costs of the Contempt Motion. [2] I awarded costs of the Contempt Motion to the Respondent, Syed Pervez, fixed in the amount of $ 161,576.88 , all inclusive of fees, disbursements, and applicable taxes and I awarded costs to the Respondents David Rosenthal, Samuel Rosenthal, and Cheryl Rosenthal, in their capacity as co-estate trustees of the estate of Joseph Rosenthal (the “Joseph Rosenthal Trustees”) fixed in the amount of $62,999.01, all inclusive, payable by the Applicants, Jonathan Rosenthal and Benjamin Barrett from the assets of the Estate of Cyril Hirsh Rosenthal (collectively, the “Costs Awards”).

[ 3 ] The Applicants brought this motion (the “Motion”) under Rule 59.06 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, for an order to vary the Costs Awards on the basis that the Costs Awards “arise from an accidental slip or omission” (Rule 59.06(1)) and based on new “facts arising or discovered” after the Costs Awards were rendered (Rule 59.06(2)). The Applicants sought a variation of the Costs Award granted to Syed from $161,576.88 to $70,554.30, all inclusive, and a variation of the Costs Award granted to the Joseph Rosenthal Trustees from $62,999.01 to $27,483.00, all inclusive.

[ 4 ] For the reasons that follow, this Motion is dismissed.

[ 5 ] For clarity, and considering that several parties share a surname, I will respectfully refer to the parties by their first names, in the same manner as was done by their lawyers in their written and oral submissions.

A. The Applicants’ Position

[ 6 ] This Motion is based on Rule 59.06 , which provides as follows:

59.06 (1) An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.

(2) A party who seeks to,

(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;

(b) suspend the operation of an order;

(c) carry an order into operation; or

(d) obtain other relief than that originally awarded,

may make a motion in the proceeding for the relief claimed.

[ 7 ] The Applicants submitted that:

(a) An accidental slip or omission resulted in costs being awarded to the Joseph Rosenthal Trustees for work done after the Contempt Motion no longer proceeded against Joseph Rosenthal or the Joseph Rosenthal Estate, contrary to the Order of Justice Dietrich dated August 11, 2023 (the “August 2023 Order”).

(b) The Costs Award to Syed accidentally compensates him for fees and disbursements incurred in producing documents, even though (i) the production was not in issue in the Contempt Motion, and (ii) the Lawyers’ File Material was produced voluntarily after the Costs Endorsement was released; and

(c) The Respondents’ agreement on July 31, 2025, the same day that the Costs Endorsement was released, to abandon their claim of privilege over the Lawyers’ File Material constitutes a new fact that was unforeseeable at the time of the Costs Awards and demonstrates that the Costs Awards do not reflect the manifest intention of the Court.

[ 8 ] The Applicants submitted that if the Joseph Rosenthal Trustees are denied any recovery in costs for responding to the Contempt Motion after the date of the August 2023 Order, the Costs Award to the Joseph Rosenthal Trustees should be reduced from $62,999.01 to $27,483.00, all inclusive. The Applicants submitted, further, that if Syed is denied any costs for documentary production, the Costs Award to Syed should be reduced from $161,576.88 to $70,554.30, all inclusive.

B. Analysis

[ 9 ] Since the final order on the Contempt Motion has not been formally entered, the Court has a broad discretion to vary or withdraw it if it is in the interests of justice to do so: Meridian Credit Union Limited v. Baig , 2016 ONCA 942 , 6 C.P.C. (8th) 33 , at para. 7 : “…generally speaking, there is no jurisdictional impediment to this court reconsidering its decision when no order has been taken out and entered.” Also, Shi v. Chen , 2021 ONSC 4642 , at para. 10 .

[ 10 ] The parties agreed on the well-established principles that guide my determination of this Motion. These principles were summarized by Charney, J. in Gendron v. Thompson Fuels, 2017 ONSC 6856 , at para. 50 , with reference to the thorough analysis of the purpose and proper scope of Rule 59.06 set out by Perell J., in Trustees of the Millwright Regional Council of Ontario Pension Trust Fund v. Celestica Inc ., 2013 ONSC 1502 , at paras. 30-33 , as follows:

• Rule 59.06 (1) is designed to amend judgments containing a slip or error, errors which are clerical, mathematical or due to misadventure or oversight. The rule is designed to amend judgments containing a slip, not to set aside judgments resulting from a slip in judicial reasoning.

• Rule 59.06 (1) is not designed to be a disguised means to review errors in the making of the Reasons for Decision; rather, it is designed to correct errors in memorializing the Reasons into a formal order or judgment.

• Generally speaking the court’s inherent and statutory jurisdiction to amend an order or judgment is limited to: (1) cases of fraud; (2) where there has been a slip in drawing up the order; and (3) where there has been an error in the order expressing the manifest intention of the court from its reasons for decision.

• The rule is only operative in exceptional circumstances given the public interest in the principle of finality to the litigation process.

• Under rule 59.06(1), the Court has the power to amend an order where there has been an error in expressing the manifest intention of the Court.

• The rule permits amendments where the order obviously or indubitably does not reflect what the court intended to do, either by error or oversight. [Citations omitted and bullet points added].

[ 11 ] I adopt this summary of principles, as well as the holdings by Charney J. in Gendron , at para. 54 , that Rule 59.06 “is not intended as an opportunity for counsel to ask the court for a ‘do-over’ or to have a second kick at the can” and is not “intended to authorize the trial judge to sit on appeal from his own decision.” A court under Rule 59.06 is not entitled to consider issues properly dealt with by appeal: Drew v. Topple , 2025 ONSC 1868 , at para. 13 . The power to correct a judgment is engaged only “where the order obviously or indubitably does not reflect what the court intended to do, either by error or oversight:” Celestica , at para. 33. These principles will be applied even more stringently against the moving party when raised in a motion as opposed to a trial because motions do not generally determine the outcome of the litigation: Active Security and Cable Inc. v. Rogers Communications Canada Inc. , 2022 ONSC 5844 , at para. 18 .

[ 12 ] I will apply these principles to the grounds raised by the Applicants.

(a) The Costs Award to the Joseph Rosenthal Estate Trustees

[ 13 ] The August 2023 Order provides, in paras. 1 and 2, as follows:

THIS COURT ORDERS that this proceeding continue with David Rosenthal, Samuel Rosenthal, and Cheryl Rosenthal in their capacities as co-estate trustees of the estate of Joseph Rosenthal as respondents as it relates only to the applicants’ motion to compel compliance with paragraph 5 of the Judgment of Cavanagh J. dated December 17, 2020 [the Document Production Order] and costs in connection therewith as may be ordered by the Court.

THIS COURT DECLARES that the applicants’ motion for a declaration for contempt shall not proceed as it relates to Joseph Rosenthal or Joseph Rosenthal’s estate.

[ 14 ] In the Reasons for Judgment, at para. 51, I explain the effect of the August 2023 Order:

Joseph died on June 27, 2023. At a Case Conference conducted on August 14, 2023, Justice Dietrich ordered, on the consent of the parties, that this Application shall continue against [the Joseph Rosenthal Trustees] only to compel compliance with the Document Production Order and costs, and that the Applicants’ motion for a declaration of contempt shall not proceed as it relates to Joseph or to the Joseph Rosenthal Estate.

[ 15 ] In the Costs Endorsement, at para. 2, I stated as follows:

By the time of the hearing of this Contempt Motion, Joseph had died, giving rise to a Consent Order for the continuation of this Application against [the Joseph Rosenthal Trustees] only to compel compliance with the Document Production Order and costs, and that the Applicants’ motion for a declaration of contempt shall not proceed as it relates to Joseph or to the Joseph Rosenthal Estate

[ 16 ] Recognizing that the Contempt Motion was continued against the Joseph Rosenthal Trustees by the August 2023 Order, although limited to “compliance with the Document Production Order and costs”, I awarded costs incurred both before and after the August 2023 Order as “ reasonable, fair, and proportionate, considering the scope of the Contempt Motion, its duration and procedural complexity, and were reasonably incurred in the defence of the Contempt Motion”: Costs Endorsement, at para. 25.

[ 17 ] There was no accidental slip in awarding costs to the Joseph Rosenthal Trustees after the date of the August 2023 Order for the continuation of this Application against them to compel compliance with the Document Production Order and costs.

(b) The Costs Award to Syed

[ 18 ] The Document Production Order compelled Syed and Joseph to deliver to the Applicants “ all vouchers, statements, invoices, receipts, tax returns, accounts, notes and other documents and all other information in Joseph and Syed's power, possession, or control relating to the Estate and the administration of the assets and liabilities thereof”: Reasons for Judgment, at para. 18. The Contempt Motion was based on the allegation that the Former Estate Trustees breached the Document Production Order. As I stated in para. 13 of the Costs Endorsement: “ The Applicants’ Notice of Motion was based in contempt, specifically, Rules 60, 60.05 and 60.11, and this was the sole issue raised by the Motion ”. The issue of the Former Estate Trustees’ compliance with the Document Production Order was embedded in the Contempt Motion because a civil motion for contempt is predicated on an alleged breach: in this case, an alleged breach of the Document Production Order.

[ 19 ] During the course of the Contempt Motion, the Applicants provided the Former Estate Trustees with a list of documents to address deficiency in compliance with the Document Production Order, referred to as the “September 2022 List”, which was comprised of the following: “(a) 17 categories of documents; (b) the identification of 20 custodians of documents who might have material evidence, with the request that Syed search for any emails, faxes, letters and other correspondence received from, or sent to these persons; (c) 19 email addresses belonging to persons who might have material evidence, with the request that Syed search for any emails received from, or sent to these persons; and (d) 15 search terms for Syed to use in searching for any documents responsive to these terms”: Reasons for Judgment, para. 35. Regarding the steps taken by Syed and Joseph to comply with the Document Production Order, including the September 2022 List, I found as follows, at para. 83 of the Reasons for Judgment:

Syed and Joseph retained counsel who attempted to comply with the Judgment in good faith. Prior to the November 2021 Order placing this Contempt Motion in abeyance, the “first phase” of the Contempt Motion, Mr. O’Brien delivered seven boxes of file materials in an attempt to comply with the Judgment. At the time leading to the cross-examination of Syed in September 2022 and thereafter, the “second phase” of the Contempt Motion, the lawyers for Syed and Joseph were engaged with the lawyer for the Applicants in a prolonged good faith effort to comply with the Judgment, which culminated in reducing the areas in dispute to two discrete areas: confirmation that Syed has no further Paragon Documents; and two documents claimed to contain privileged communications. I do not accept the Applicants’ submission that the efforts by Syed to comply with the Judgment in the second phase constitute purging of his contempt, because no contempt had been found. Rather, I find that Syed and Joseph showed good faith engagement through counsel in reasonable attempts to comply with the Document Production Order.

[ 20 ] The Former Estate Trustees’ work in compliance with the Document Production Order caused costs, commensurate with the breadth and scope of the Applicants’ view of the Document Production Order as exemplified by the September 2022 List, which informed the Applicants’ claim for a finding of contempt. In para. 26 of the Costs Endorsement, I found that these costs were incurred by the Former Estate Trustees in response to the Applicants’ demands:

The disbursements shall be awarded because they were incurred by Syed in attending to an extensive e-discovery process that was demanded by the Succeeding Estate Trustees, including through the multi-page/multi-category list provided by the Succeeding Estate Trustees on September 19, 2022, and referred to as the “September 2022 List”. Since Syed undertook e-discovery to satisfy this broad production demand, the costs shall be paid from the assets of the Estate.

[ 21 ] I found that the Former Estate Trustees established a presumptive entitlement to be indemnified for legal costs reasonably incurred in responding to the Contempt Motion because “the Contempt Motion arose from their conduct as Former Estate Trustees and because the defence costs were incurred in their successful defence of the Contempt Motion”: Costs Endorsement, at para. 24 [emphasis added]. I found that “estate trustees are generally entitled to be indemnified for all reasonably incurred costs in the administration of an estate”: Costs Endorsement, at para. 21. The work involved in steps taken by the Former Estate Trustees to comply with the Document Production Order, which was at the core of the Contempt Motion, “arose from their conduct as Former Estate Trustees”: Costs Endorsement, at para. 24.

[ 22 ] There was no accidental slip in the award of costs to Syed for the costs of producing the documents demanded by the Applicants in compliance with the Document Production Order as part of the defence of the Contempt Motion.

(c) The “Newly Discovered Facts” – The Lawyer’s File Material

[ 23 ] The Applicants submitted that on July 31, 2025, after the Costs Awards, Syed and the Joseph Rosenthal Trustees produced the Lawyer’s File Material, which was withheld as privileged during the Contempt Motion. Counsel for the Joseph Rosenthal Trustees, also on behalf of Syed, wrote that day that while they “maintain that privilege is properly asserted”, they viewed the “privileged documents” issue as a distraction and agreed to waive privilege and produce the documents. The Applicants submitted that this showed that “resisting production was unwarranted and costly”.

[ 24 ] I do not accept that the resolution of the privilege issue related to the Lawyer’s File Material is a “fact arising or discovered after [the Costs Award] was made” that would support a variation of the Costs Award. Paragraph 91 of the Reasons for Judgment provided a process for the parties to schedule a Case Conference to speak to the production of the Lawyer’s File Material, and another issue, “[i]f the parties are unable to resolve these issues”. The potential for resolution of the privilege issue related to the Lawyer’s File Material was addressed in the Judgment. The fact that the parties resolved this issue does not support an order to vary the Costs Award.

(d) Conclusions

[ 25 ] The Costs Awards do not contain an error arising from an accidental slip or omission and there is no fact arising after the issuance of the Costs Awards that would support varying or staying the Costs Awards. The Costs Awards reflected the result which I intended, in the exercise of my discretion on the issue of costs, based on my understanding of the thorough written submissions of counsel and the applicable legal principles. As Borins J. held in National Trust Co. v. Saks , [1995] O.J. No. 853 (Ont. Gen. Div.) , at para. 6 , there is no place in a motion on Rule 59.06 for this court to review its own reasoning or approach or to allow counsel an opportunity to reargue their position.

[ 26 ] For these reasons, this Motion is dismissed.

C. Costs

[ 27 ] The parties agreed that if the Respondents, the Former Estate Trustees, were successful in the defence of this Motion, they would be paid, collectively, costs in the amount of $28,000.00, all inclusive of fees, disbursements and applicable taxes, from the assets of the Estate, to be divided among them as they see fit. On the agreement of the parties, such an Order shall issue.

D. Disposition

[ 28 ] I order that this Motion is dismissed, with costs to be paid to the Respondents, collectively, in the amount of $28,000.00, all inclusive, from the assets of the Estate, to be divided among them as the Respondents see fit.

Justice A.A. Sanfilippo

Date: November 28, 2025

[1] Rosenthal v. Rosenthal , 2025 ONSC 2096 (the “Reasons for Judgment”).

[2] Rosenthal v. Rosenthal , 2025 ONSC 4488 (the “Costs Endorsement”).