CITATION: Kunka Estate v. Giasson, 2026 ONSC 4290
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANN-MARIE MILLS in her capacity as estate trustee for the ESTATE OF SIEGFRIED ERNEST KUNKA, also known as ERNEST SIEGFRIED KUNKA
Applicant
– and –
Angele Giasson
Respondent
Eric Florjancic, for the Applicant
Joshua D.A. Laplante, for the Respondent
HEARD: In Writing
ENDORSEMENT ON COSTS
HORVAT J.:
1On March 26, 2026, I dismissed the application brought by the Estate Trustee, Ms. Mills, for reasons reported at Kunka Estate v. Giasson, 2026 ONSC 1842. The application related to whether beneficiary designations made on registered accounts such as an RRSP and RIF are subject to a resulting trust and form part of the assets of an estate. I found that the respondent, Ms. Giasson, was entitled to her costs of the application, and that those costs should be paid out of the Estate and not by Mills personally: Kunka Estate, at para. 60. If the parties could not agree on costs, I invited them to make brief written submissions.
2The sole issue to be determined is the amount of costs payable to Giasson. Giasson asks for the all-inclusive amount of $43,583.49 on a full indemnity basis. In the alternative, Giasson seeks her costs payable on a substantial indemnity scale following the date of an offer to settle, and partial indemnity prior to the offer, in the amount of $34,556.42. The Estate argues that the all-inclusive amount of $10,000 is fair and reasonable.
3For the reasons that follow, I find that Giasson’s costs shall be payable on a partial indemnity scale in the amount of $26,963.13, inclusive of H.S.T. Her disbursements in the amount of $2,081.76 are also fair and reasonable and are awarded payable by the Estate.
General Principles
4In estate litigation, the court’s first step in determining costs is a careful scrutinization of the litigation to determine whether any public policy considerations apply. This is to ensure that the Estate is being properly administered, in which case the parties’ reasonable costs are to be paid from the Estate. These public policy considerations include:
(a) If there are reasonable grounds on which to question the execution of a will or the testator’s capacity to make the will, it is in the public interest that such questions be resolved without cost to those questioning the will’s validity.
(b) Where the difficulties or ambiguities that gave rise to the litigation are caused by the testator, it is again appropriate for the testator’s estate to bear the costs of their resolution: McGrath v. Joy Estate, 2022 ONCA 119, 471 D.L.R. (4th) 211, at paras. 91-96; McDougald Estate v. Gooderham (2005), , 255 D.L.R. (4th) 435 (Ont. C.A.), at paras. 78-79.
5Where the public policy considerations are not at play, the ordinary civil rules are applied to determine the issue of costs. The general principles governing costs in civil litigation are well established:
(a) Costs are in the court’s discretion under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
(b) Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides factors for consideration in the exercise of discretion to award fair and reasonable costs.
(c) Fairness and reasonableness are the overriding principles that govern costs awards: Boucher v. Public Accountants Council for the Province of Ontario (2004), , 71 O.R. (3d) 291 (C.A.).
6On the appropriate scale of costs, full indemnity costs are only awarded where there has been reprehensible, scandalous, or outrageous conduct by one of the parties: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 26; Net Connect Installation Inc. v. Mobile Zone Inc., 2017 ONCA 766, 140 O.R. (3d) 77, at paras. 8-9.
7Similarly, substantial indemnity costs are reserved for exceptional cases, such as where there is reprehensible conduct or misconduct by a party or counsel, or where proceedings are vexatious, frivolous, or an abuse of process: Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66, at para. 40; Lewis v. Lewis, 2019 ONCA 690, at para. 17. “Substantial indemnity costs is the elevated scale of costs normally resorted to when the court wishes to express its disapproval of the conduct of a party to the litigation”: Net Connect, at para. 8; Pinder Estate v. Farmers Mutual Insurance Company (Lindsay), 2020 ONCA 413, at paras. 147, 150, and 153.
Analysis
8In dismissing the Estate’s application, I found that the public policy considerations are in play in this case and that Giasson’s costs shall be payable by the Estate and not by the estate trustee personally: Kunka, at para. 60; McGrath, at paras. 91-96; McDougald Estate, at paras. 78-79. There is no dispute that Giasson is entitled to her costs of this action. The parties only differ on the scale of costs that should be awarded.
9Giasson argues that an award of costs on a full indemnity scale is appropriate because she was compelled to participate as a necessary party in this application, and it would be unfair to require her to personally bear the costs. Relying on Driscoll v. Driscoll, 2016 ONSC 6013 at para. 12, she says that such an award would avoid penalizing her reasonable conduct and aligns with authority that reasonable and necessary litigation in the estates context results in a full indemnity costs award out of the estate in question. In response, the Estate argues that awarding Giasson full or substantial indemnity costs would have a chilling effect on estate trustees attempting to fulfill their fiduciary duties by seeking guidance from the court on arguable and/or unsettled issues, such as in the present case.
10I am not prepared to award Giasson her costs on a full indemnity basis. There is no evidence of reprehensible, scandalous or outrageous conduct by the Estate or its trustee. Under the public policy considerations outlined in McGrath, only the “reasonable costs” of the parties are to be paid out of the Estate: McGrath, at para. 94. I do not find the decision in Driscoll to be of assistance to Giasson given that it was decided prior to and does not consider the principles established in McGrath. I am also mindful of the court’s obligation to “guard against allowing their processes to be used to unnecessarily deplete a testator’s estate”: McGrath, at para. 92. Balancing the interests of the Estate and Giasson, I find that Giasson is entitled to her costs on a partial rather than on a full indemnity scale.
11The next question to consider is whether Giasson’s costs should be awarded on a substantial indemnity scale from the date the offer to settle was made. Giasson served an offer to settle after the exchange of application records and prior to cross-examinations. If Giasson’s offer was accepted, then the Estate would have received approximately $18,000 minus $8,000 in costs to Giasson. The offer was, in my view, for an insignificant amount that lacked any compromise which r. 49 was intended to foster. There was very little incentive for the Estate to accept the offer particularly considering the unsettled law that prompted the application. There is no basis to fault the Estate, or punish it, for not accepting the offer to settle. For these reasons, I disregard the offer to settle, and costs shall be awarded to Giasson on a partial indemnity scale.
12In asking for an award of costs of $10,000, the Estate argues that the time spent by Giasson’s lawyers was excessive and falls outside the reasonable expectations of an unsuccessful party in an estates application. I have reviewed the bill of costs submitted by both Giasson and the Estate and I disagree with the Estate. The time spent and the hours charged by Giasson’s lawyers was entirely fair, reasonable, and proportionate to the time spent by the Estate’s lawyers and the Estate’s expectations. On a partial indemnity scale, the actual time amounts to $26,963.13, inclusive of H.S.T.
13The Estate does not quarrel with the disbursements sought by Giasson being $2,081.76, inclusive of H.S.T.
Conclusion
14Considering the factors identified in r. 57.01(1), an award of costs to Ms. Giasson on a partial indemnity scale in the amount of $26,963.13, inclusive of H.S.T., is fair and reasonable. The disbursements sought by Giasson in the amount of $2,081.76 are also fair and reasonable and are awarded payable by the Estate. These costs shall be payable to Giasson within 30 days of the date of this endorsement.
Jacqueline A. Horvat
Justice
Date: July 22, 2026
CITATION: Kunka Estate v. Giasson, 2026 ONSC 4290
COURT FILE NO.: CV-24-00033909-00ES
DATE: 20260722
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANN-MARIE MILLS in her capacity as estate trustee for the ESTATE OF SIEGFRIED ERNEST KUNKA, also known as ERNEST SIEGFRIED KUNKA
Applicant
– and –
Angele Giasson
Respondent
endorsement on costs
Horvat J.
Released: July 22, 2026