Stephanie Marentette Di Battista

The applicants sought costs of $18,000 on a partial indemnity basis, or alternatively no costs, following an application where they were largely successful in being removed as trustees of a Henson trust but unsuccessful in seeking directions to sell a farm.

The respondent sought partial indemnity costs of $30,555.90 payable by the applicants from their shares of the estate.

The court found there was divided success and ordered that no costs be awarded.

The applicants, estate trustees of Norman Zock's estate and trustees of the Henson Trust for Stephen Wayne Zock, sought removal as trustees of the Discretionary Trust and court direction to sell the family farm held in the Norman Zock Farm Trust.

The respondent beneficiary, Stephen Wayne Zock, opposed the farm sale and requested that one trustee (Norma) continue.

The court granted Norma Lynn Pierce's removal as trustee of the Discretionary Trust after passing accounts, but declined to remove Gary Zock, imposing specific conditions for his temporary continuation as trustee.

The court also denied the request to sell the farm, finding that the preconditions for sale, specifically Stephen's incapacity to manage personal care or inability to maintain the home to a habitable standard, were not met based on the evidence presented.

The respondents moved for an order to try two proceedings (CV-16-24195 and CV-18-26529) together.

The first action concerned the estate trustee's administration of an estate and passing of accounts, including allegations of breach of fiduciary duty.

The second action, commenced by the estate trustee, sought to collect a payment on a promissory note related to a share purchase agreement, with the respondent in the first action counterclaiming undue influence and economic duress.

The court applied Rule 6.01(1) of the Rules of Civil Procedure and the balance of convenience test.

It found that while there was a minor common issue (value of estate's shares), the relief claimed did not arise from the same transactions, and the actions were at different stages of litigation with different complexities.

The motion to consolidate or hear the actions together was dismissed.