Once again, costs are hard to order where a winner isn’t clear.

May 22, 2015 Hull & Hull LLP Uncategorized 0 Comments

There’s a new costs endorsement that features another common situation in relation to trustee accounts – what proportion (if any) should be paid out of the trust and how should costs be assessed between the trustee and the beneficiary who seeks information or makes an objection to accounts? In Klatt v Klatt, 2015 ONSC 3110 (Ont. S.C.J.), Justice Martin James held that a motion to compel production of accounting records was partially successful. Evidently other orders were sought and not obtained. The Moving Party sought its costs from the Trustee personally and out of the trust. The Trustee sought his costs from the beneficiary and out of the trust. Justice James gave each a bit of what they wanted ($5000 out of the trust) and none of what they really wanted (costs from each other).

Two areas of estate litigation are especially unpredictable, costs and dependants’ support. The latter is not jut hard to predict but is an exercise in Solomonic reasoning. The former is where lawyers can have some influence.

I should say from this point forward I don’t mean to comment on the issues in Klatt litigation (of which I know nothing) and can only assume that Mr. Joseph P. Hamon and Mr. M. Peter Sammon acted with the vigilance, prudence and sagacity that comes almost naturally to estates and trusts litigation counsel (not to mention grace, industry and other assorted virtues). Their work only allows me to comment on the larger issue, and for that I thank them.

We are taught to “plead widely” in creating a statement of claim. Don’t miss naming a potential defendant, a form of relief, or a cause of action! Happily, in trust litigation we often have a much better idea of what we’re after and why. Litigation being what it is, however, we tend to revert to the default of “plead widely”. May I suggest that we contain ourselves a little bit? Recently I blogged about  Brown, Dale and Shackleton v Rigsby and Shackleton, 2015 ONSC 1777 (Ont. S.C.J.), which involved a passing of attorney accounts. Again, a winner wasn’t clear and the costs rules could not be applied as nature intended. If we can cut down the issues when we make our motions or applications and winnow our arguments again before a contested hearing, our clients will stand a better chance of recouping costs if successful. Easy to say and hard to do I know, but still worth thinking about.

Have a very nice weekend!

David Freedman

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