CITATION: Buchanan v. Hemingway, 2026 ONSC 2623
SUPERIOR COURT OF JUSTICE - ONTARIO
RE:
LEILA BUCHANAN and SHIRLEY FAYE BEIER in their personal capacity and as Estate Trustees of the Estate of Raymond Claire Cox, BONNIE JOYCE BROWN, CHERYL ELVA TREWARTHA, SANDRA LYNN PLEWIS, Applicants
AND:
PATRICIA GAYLE HEMINGWAY in her personal capacity and as Estate Trustee of the Estate of Elva Helen Cox, Respondents
BEFORE:
Tranquilli J.
COUNSEL:
Philip Smith, for the Applicants
Irwin A. Duncan, Zachary D. D’Amico, for the Respondents
HEARD:
In Writing
ENDORSEMENT ON COSTS
1By reasons reported at 2026 ONSC 619, I granted partial judgment on this application by way of requiring transfer of the “Bush Lot” by the respondent Estate Trustee for the Estate of Elva Cox to the applicant Leila Buchanan. The parties did not resolve costs of the matter despite the court’s encouragement.
2The applicants seek their substantial indemnity costs from the respondents in the amount of $9,356. They submit they were the successful parties on the application and that the result is as good as or better than their offer to settle. The respondent’s position required them to undergo the expense of affidavits and cross-examinations on affidavits. The applicants also observe their bill of costs is within the reasonable expectations of the parties given the respondents’ bill of costs showing partial indemnity costs of $40,243.02 and substantial indemnity costs of $60,377.36.
3The respondent Hemingway submits no costs should be awarded because the applicants were only successful on one of six issues on the application and because there is no evidence of misconduct on her part as trustee for the Estate. Alternatively, she submits there should only be partial indemnity costs paid by the Estate and not as against her personally. In the final alternative, she submits costs should be deferred to the resolution of the outstanding matters in the application.
Analysis
4The applicants were the successful parties on this application and are presumptively entitled to their costs. I acknowledge that I adjourned the balance of the application sought, such that the claims for relief such as a passing of accounts and removal of the estate trustee remain pending. There was little written argument and no submissions on the outstanding issues in the application at the hearing. I find this is because, in substance, this application is about title to the Bush Lot. As was noted by the respondents in argument on the application, the Bush Lot was the last asset of significance in the Estate that remained to be distributed, and administration of the Estate had largely been dormant since 2011.
5I also find that the applicants obtained a result that was more favourable than the offer. The offer to settle proposed to indemnify the respondent estate for any capital gains and that the applicant Buchanan would be responsible for the legal fees associated with the transfer. This order simply directs the transfer and leaves matters regarding the expenses of same unaddressed.
6I allow that the origins of this dispute date back to when the respondent Hemingway shared the responsibilities of the Estate administration with her late brother Claire Cox. Initial efforts to transfer the Bush Lot pursuant to the oral agreement appeared to stall in late 2012, according to counsel’s letter that confirmed Mr. Cox’s instructions to leave the situation “as is”. I also accept that it would be reasonable where there were questions about estate distribution for the estate trustee to seek direction from the court in her capacity as a fiduciary. The Estate should therefore be responsible for any costs reasonably related to these factors in this proceeding.
7However, the court must also account for whether costs are to be paid personally by the respondent Hemingway. She submits her position in opposition to the application was taken in good faith and in furtherance of her fiduciary duty as an estate trustee, not in her personal capacity.
8I do not agree. I have already acknowledged it would be expected and reasonable for an executor to seek the court’s direction in the event of some dispute or question about interpretation of the will or the distribution of a devise or bequest in the administration of the Estate. That is not how this dispute presented in court. The respondent did not seek the court’s direction as a disinterested trustee engaged in doing only what was in the interest of the Estate. The respondent denied the existence of the agreement despite the otherwise unanimous support of the remaining beneficiaries and in the face of other evidence of the existence of the agreement. Correspondence from the respondent to her beneficiaries revealed her personal interest in the dispute, such as in advancing a position regarding the bush lot that would allow them to achieve a personal financial benefit.
9The amount of costs sought by the applicants is not unreasonable, particularly in the context of the bill of costs filed by the respondents. However, I find a proportionate and reasonable costs award in these circumstances should consider that this application was necessary in part because of the uncertainty left by the Estate when the late joint trustee Mr. Cox instructed counsel to leave title to the property “as is” in 2012. I am also prepared to consider that it would be reasonable for the respondent estate trustee to ensure there is a proper court record to protect the Estate. However, I find that the respondent Hemingway’s continued challenge to the application beyond the cross-examinations on affidavits was in furtherance of her personal interests as a beneficiary and not in her duty as trustee. Finally, I allow that costs should also reflect that the parties have still to conclude the loose ends on this application.
10In considering these factors, I fix the costs of the application heard June 4, 2025 in the amount of $6,500, payable by the respondents to the applicants. Of that sum, the respondent estate is responsible for $3,000 and the respondent Hemingway is personally responsible for costs of $3,500.
Justice K. Tranquilli
Date: May 4, 2026