United Mennonite Home for the Aged v. Gordon, 2026 ONSC 2039

Court File and Parties

CITATION: United Mennonite Home for the Aged v. Gordon, 2026 ONSC 2039

COURT FILE NO.: CV-17-00057196-00SR

DATE: 2026-04-08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

United Mennonite Home for the Aged

Plaintiff

– and –

Dan Gordon as Estate Trustee of The Estate of Eugene Gordon and Lois Gordon and The Estate of Eugene Gordon, Deceased

Defendants

S. Carter and M. Goldenberg, for the Plaintiff

A. Camporese, for the Defendants

HEARD: March 31, 2026, at St. Catharines

The Honourable Justice J. R. Henderson

COSTS DECISION

1The plaintiff, United Mennonite Home for the Aged (“UMH”), requests an order for its costs of both this action and the summary judgment motion brought by the defendant, Dan Gordon (“Dan”) as Estate Trustee of the Estate of Eugene Gordon, jointly as against Dan in his personal capacity and the Estate of Eugene Gordon, Deceased (“the Estate”). In response, Dan requests an order for his costs of both the action and the summary judgment motion.

2Both the action and the summary judgment motion have been resolved by way of a consent judgment, dated May 28, 2024. The consent judgment provides that the costs issues are to be determined on motion to this court.

THE FACTS

3Eugene Gordon (“Eugene”) resided at the UMH facility for several years prior to his death on February 4, 2015. Dan is Eugene’s son, and the defendant Lois Gordon (“Lois”) was Eugene’s wife.

4The plaintiff’s action is a claim for payment of fees that UMH alleges were owed by Eugene for his accommodation at UMH until the date of his death. The statement of claim was issued in February 2017. In the statement of claim, UMH claims payment for unpaid accounts in the total amount of $27,440.82.

5The named defendants in the statement of claim are “Dan Gordon as Estate Trustee of the Estate of Eugene Gordon” and “Lois Gordon.” UMH pleaded that Lois was a guarantor of Eugene’s indebtedness, and that it was UMH’s information and belief that Dan was the estate trustee. Lois did not defend the action and default judgment was obtained against Lois in December 2017.

6In March 2017, Dan delivered a statement of defence in which he pleaded that he was not, and never has been, the estate trustee for the Eugene’s estate. Whether or not Dan was the estate trustee has been at the centre of this dispute since 2017.

7There were some delays with respect to the production of affidavits of documents and the scheduling of examinations for discovery throughout 2018 and 2019. Examinations for discovery of Dan and a representative of UMH were eventually held on June 4, 2020.

8Throughout the action, Dan maintained that he was not the estate trustee for Eugene’s estate. In 2019 Dan brought a summary judgment motion for a declaration that Dan was not the estate trustee, and for summary dismissal of any claim against him. The summary judgment motion was first returnable on July 25, 2019. There were difficulties scheduling the cross-examinations for the summary judgment motion. A representative of UMH was cross-examined in February 2021. After Dan cancelled two or three times on short notice, Dan was eventually cross-examined in October 2021.

9UMH brought a motion to obtain documents from a third party, Veterans Affairs Canada (“VAC”), returnable in February 2022. It should be noted that VAC contributed to the fees charged for Eugene’s accommodations at UMH, and that Dan had direct dealings with VAC.

10The summary judgment motion was scheduled to be heard by Sheard J. on June 13, 2022. However, UMH requested an adjournment to conduct a further examination of Dan regarding the VAC documents, and an examination of a VAC representative. Sheard J. adjourned the summary judgment motion without a date. The summary judgment motion has never been heard or decided on its merits.

11The action was set down for trial on July 8, 2021. There was a pre-trial in April 2022, and the matter was placed on the October 2022 trial sittings list. Thereafter, it was adjourned to allow for the summary judgment motion to be heard, and to allow UMH to examine a VAC representative. The trial was initially adjourned to the May 2023 sittings and then adjourned again to the April 2024 sittings.

12UMH also brought a motion to amend the pleadings to include a claim against Dan in his personal capacity. That motion was heard in November 2023 and was dismissed by Reid J. with costs payable by UMH to Dan.

13The matter was settled by way of a consent judgment that was issued on May 28, 2024. The consent judgment amended the title of the proceedings to add “The Estate of Eugene Gordon, Deceased” as a defendant. The consent judgment also provided that: 1. The Estate of Eugene Gordon, Deceased, shall pay UMH the sum of $27,440.82 plus prejudgment interest, 2. The summary judgment motion brought by Dan shall be dismissed, 3. UMH’s action against Dan Gordon as Estate Trustee of the Estate of Eugene Gordon shall be dismissed, and 4. The costs of the action and the summary judgment motion are to be determined on motion to the court.

POSITIONS OF THE PARTIES

14UMH requests its costs of the action on a substantial indemnity basis in the amount of approximately $116,000. This request is based on the allegations that Dan failed to clarify that he was not the estate trustee, and that Dan’s conduct unnecessarily increased the costs of the action.

15UMH also requests its costs of the summary judgment motion on a substantial indemnity basis in the amount of $37,678, based on its allegations that Dan failed to attend for cross-examinations on several dates, and that Dan failed to clarify his intention to proceed with the motion.

16For both the action and the summary judgment motion, UMH submits that costs should be payable jointly and severally by Dan personally and the Estate of Eugene Gordon, Deceased.

17The position of the defendants is that UMH improperly named Dan as estate trustee as a defendant in the action. The defendants submit that UMH’s case against Dan as estate trustee was entirely unsuccessful, and therefore UMH should pay costs to Dan personally on a partial indemnity basis in the amount of $42,698 for the action and in the amount of $10,913 for the summary judgment motion.

ANALYSIS

18Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 gives the court a broad discretion to determine by whom and to what extent costs shall be paid. Further, rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides a list of factors to be considered in the assessment of costs, including the results of the proceeding, any offer to settle, the amount that an unsuccessful party could reasonably be expected to pay, the amount claimed, the complexity of the proceeding, the importance of the issues, and the conduct of any party to the proceeding.

19Overall, the goal of a costs award, as discussed in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) at paras. 24-26, is to fix an amount that is fair and reasonable for the unsuccessful party to pay to the successful party in the circumstances.

20Regarding the summary judgment motion, I take into account that the motion was based upon Dan’s position that he was not, and had never been, the estate trustee for the Estate of Eugene Gordon. Given that the consent judgment provides for a dismissal of the action against Dan as estate trustee, I accept that there was likely some merit to Dan’s position.

21However, the parties have never agreed as to whether the summary judgment motion had merit, and the court has never decided the issue. All of the parties simply agreed to a dismissal of the summary judgment motion without allocating responsibility for the litigation events that took place.

22As to the alleged delays in proceeding with the summary judgment motion, I find that neither party is solely responsible. I accept that there were difficulties scheduling cross-examinations. I accept that Dan cancelled on short notice, but I find that there were extenuating circumstances as Dan’s personal schedule was complicated by the fact that his wife was diagnosed with cancer in 2020 and died in 2021. Dan never abandoned the motion. Moreover, at least one adjournment of the summary judgment motion was at UMH’s request so that further examinations could take place.

23I also find that the summary judgment motion provided some benefit to both parties as it served to focus the issues in the action. That is, the main issue in the action related to whether Dan had the authority of an estate trustee. There was never a significant issue as to the amount of the debt.

24Overall, I find that there was mixed success on the summary judgment motion. Both parties incurred legal fees as a result of the summary judgment motion. Both parties achieved some benefit from the summary judgment motion. Both parties have some responsibility for the delays in the summary judgment motion. Therefore, I order no costs to either party for the summary judgment motion.

25Regarding the action, I accept that UMH was the successful party in the action as UMH obtained a judgment against the estate in the full amount that is claimed in the statement of claim. As the successful party, UMH is presumptively entitled to its costs.

26Regarding the scale of costs, the presumption is that partial indemnity costs are to be awarded. In order to obtain a costs award on a substantial indemnity basis, the successful party must show conduct on behalf of the unsuccessful party that justifies a costs sanction.

27Substantial indemnity costs are payable if the conduct of the unsuccessful party is so reprehensible or outrageous that the behaviour is worthy of sanctions by the court: see Hunt v. TD Securities Inc. (2003), 2003 3649 (ON CA), 66 O.R. (3d) 481 (C.A.) at para. 123, and Davies v. Clarington (Municipality) et al., 2009 ONCA 722, 100 O.R. (3d) 66 at paras. 28-31. In Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at para. 251, McLachlin J. discussed solicitor and client costs as opposed to party and party costs in the following terms, “Solicitor-client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties.”

28I accept that there is case law that discusses the meaning of this phrase and concludes that reprehensible, scandalous, or outrageous conduct can also include milder forms of misconduct. The phrase simply refers to conduct that is deserving of reproof or rebuke: see Perry v. Heywood, 1998 18075 (NL SC), [1998] N.J. No. 251 at para.63.

29In this case, UMH refers to several instances of Dan’s conduct in the litigation history that UMH submits should be the subject of a rebuke by the court.

30First, UMH submits that Dan’s pre-litigation conduct caused an increase in legal fees. In my view, there is no merit to this submission. It is clear that counsel for UMH was attempting to resolve the matter with the estate prior to commencing an action, and he believed that Dan was the estate trustee. Dan, in fact, made some payments on behalf of the estate.

31However, Dan was not the estate trustee, and never had been the estate trustee. Dan did not have any authority to bind the estate. Thus, any negotiations with Dan about payment terms on behalf of the estate could not have resolved the matter. Any pre-litigation negotiations therefore do not support an increased scale of costs.

32UMH also suggests that Dan delayed matters by not promptly scheduling the examinations for discovery, by cancelling examinations for discovery, and by delaying his affidavit of documents. There is some merit to that submission, but as indicated above, there were extenuating circumstances because of Dan’s wife’s illness. I accept that UMH may have had additional legal fees; however, any legal fees that resulted from the cancellation of an examination for discovery should not be extensive if the examination for discovery was conducted on a later date. That is, the costs thrown away should not be extensive.

33UMH also makes the submission that Dan delayed matters by bringing his summary judgment motion and then not pursuing it in an expeditious manner. Again, I accept there were some extenuating circumstances in place. Also, as I discussed above, both parties contributed to the delays in the summary judgment motion. Moreover, the summary judgment motion assisted in the resolution of the matter. Still further, the summary judgment motion should not have created significant extra work in the action as the motion simply reiterated Dan’s position that was set out in the statement of defence.

34Finally, UMH relies upon three separate offers to settle that it made in 2023. I find that these offers to settle do not engage rule 49.10 as all of the offers provided that the full amount of the claim would be paid by Dan as estate trustee. Ultimately, the consent judgment dismissed the claim against Dan as estate trustee and provided for payment by the estate.

35In summary, I find that Dan consistently maintained his position that he was not the estate trustee. With respect to the alleged misconduct by Dan, I find that there may have been modest delays for which Dan is responsible, but there is nothing that warrants a costs sanction. Therefore, the scale of costs will be on a partial indemnity basis.

36Regarding quantum, I will take into account the conduct of both parties. I accept that Dan took a strong position in defending the claim. However, I also take into account that Dan was improperly named as a defendant in his capacity as estate trustee. The procedural issues associated with identifying the estate trustee should not be construed as misconduct by either party.

37Further, although I have found that rule 49.10 is not engaged by UMH’s offers to settle when compared with the consent judgment, I am prepared to accept that these offers were reasonable attempts to settle by UMH. Thus, I accept that UMH attempted to conduct itself reasonably.

38Regarding other rule 57.01 factors, I find that the claim itself was not complex, and the amount in dispute was very small. At the time the statement of claim was issued the amount claimed barely exceeded the Small Claims Court limits.

39I also must consider the principle of proportionality. This is a claim for a relatively small amount, $27,440. Legal fees that are well in excess of the amount that is the subject of the claim, except in very unusual circumstances, should not be validated by a costs award. Generally, legal fees should be proportional to the amount at stake.

40Moreover, any award of costs should be within the reasonable expectations of the parties: see Boucher at para. 38, and rule 57.01 (1) (0.b) of the Rules of Civil Procedure.

41Therefore, in my view, a traditional costs award that is in proportion to the amount claimed should be awarded in the action in this case. For those reasons, I fix costs payable to UMH in the action at $20,000, plus HST of $2,600, plus disbursements in the amount of $11,890.94 for a total of $34,490.94.

42The next issue is to decide who is responsible for paying the costs of the action to UMH. The consent judgment grants judgment against the Estate of Eugene Gordon, Deceased, in the amount of $27,440. Because the plaintiff was the successful party, the plaintiff is presumptively entitled to its costs as against the unsuccessful party. Therefore, the costs of the action should be paid by the Estate of Eugene Gordon, Deceased.

43UMH takes the position that Dan was the true litigant in the action, that Dan was the person who directed the defence of the action at all times, and that Dan should be jointly and severally personally responsible for the costs of the action.

44I find that the position of UMH on this point is untenable. UMH never sued Dan in his personal capacity. UMH unsuccessfully attempted to add Dan in his personal capacity as a defendant by way of a motion. UMH brought a claim against Dan as estate trustee, but that action was dismissed. The fact that Dan vigorously defended the action against him personally and as estate trustee does not create liability. There is no basis upon which Dan should personally pay the costs of UMH.

45Regarding Dan’s claim for costs of the action in his favour, I find that Dan could have been more accommodating in providing information about the estate to UMH. Moreover, Dan has already received a costs award in his favour when UMH’s motion to add Dan in his personal capacity as a defendant was dismissed. Therefore, I find that Dan is not personally entitled to any costs of the action.

CONCLUSION

46For these reasons, I hereby order that there shall be no costs payable by either party for the summary judgment motion. Regarding the action, I hereby order that the Estate of Eugene Gordon, Deceased, shall pay to UMH its costs of the action fixed at $34,490.94 all inclusive, payable within 90 days.

J. R. Henderson, J.

Date Released: April 8, 2026

CITATION: United Mennonite Home for the Aged v. Gordon, 2026 ONSC 2039