Tag: costs award

30 Nov

Cost consequences in estate litigation: your behaviour matters

Sydney Osmar Litigation Tags: , 0 Comments

In a recent decision out of the Ontario Superior Court of Justice, a “continued and persistent lack of self-awareness” on the part of both parties resulted in cost consequences to each, one, a testamentary trustee, and one an estate trustee.

Cardinal v Perreault, 2020 ONSC 4825, involved the issue of costs in relation to two applications regarding the Estate of Joseph Edmond Beaulieu. The first application, an application for directions, was commenced by Mr. Cardinal, the testamentary trustee. The second, an application to pass accounts,  was commenced by Ms. Perreault, the Estate Trustee.

Actions of both parties caused various difficulties and delays throughout the proceedings.

In rendering its decision, the Court provided a helpful summary of costs principles in estate litigation. That summary is highlighted below:

  • Rule 57.01(1) of the Rules of Civil Procedure, which sets out that the Court, in exercising its discretion to award costs, the court may consider a number of factors including, among others: the result in the proceeding; any offer to settle; the principle of indemnity; the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed; the complexity of the proceeding; and the conduct of any party to shorten or lengthen unnecessarily the duration of the proceeding;
  • In Davies v Clarington (Municipality), 2009 ONCA 722 the Court of Appeal held that reasonableness in the circumstances is the overarching principle applied in awarding costs;
  • In Andersen v. St. Jude Medical Inc. (2006) the court outlined the elements to consider in its assessment of the reasonableness of the circumstances as, among others: the specific facts and circumstances of each case; a consideration of the experience, rates charged and hours spent that is appropriate, balanced with the overriding principle of reasonableness; the reasonable expectation of the unsuccessful party regarding what is fair and reasonable; inconsistencies should be avoided with comparable awards in other cases; and the indemnity principle should be balanced with the objective of access to justice; and
  • In McDougald Estate v Gooderham, the Ontario Court of Appeal provided direction that the approach to fixing costs in the context of estate litigation should follow the modern approach, so as to carefully scrutinize the litigation and follow the costs rules that apply in civil litigation, unless public policy considerations dictate otherwise;

After reviewing the relevant costs principles, the court considered the parties’ behaviour in their respective applications. In Mr. Cardinal’s application for directions, he sought full indemnity costs of approximately $24,000. The court set what it reasoned to be a fair costs award of $18,000 in favour of Mr. Cardinal, and payable by Ms. Perreault.

In Ms. Perreault’s application to pass accounts, the court set a costs award of $48,000 in favour of Ms. Perreault and payable by Mr. Cardinal. All in all, the set-off of costs awards resulted in a net award to Ms. Perreault in the sum of $30,000. The court further held that the costs were to be payable by Mr. Cardinal, personally, rather than as an expense to the Estate. The Court reasoned that Mr. Cardinal’s attempt to impugn Ms. Perreault’s credibility without a credible evidentiary foundation was reprehensible. The court further reasoned that the estate and the remaining beneficiaries should not be burdened by Mr. Cardinal’s decision to pursue allegations that lacked any evidentiary foundation.

Hopefully this case will stand as a reminder to those who find themselves involved in estate litigation (and litigation generally) – your conduct throughout the proceeding is an important factor that will be considered by the court when setting costs awards.

Thanks for reading!

Sydney Osmar

15 Oct

“Costs Follow the Result”: The “Loser Pays” Principle

Hull & Hull LLP Estate Litigation Tags: , , 0 Comments

The issue of the payment of costs in an estate litigation matter has seen somewhat of a reshaping recently.  Historically, courts generally took the position that the costs incurred by all parties in an estate litigation matter ought to be paid out of the assets of the estate at issue, regardless of the outcome.  Whether or not a party was successful in the litigation, that party would not likely be responsible for its own legal costs. More recently, the courts have adopted a modified approach with a view to disincentivizing frivolous claims and to bring the costs principles in estate matters more in line with those in other civil litigation matters.  In particular, the principle that the “loser pays”, as opposed to the estate, gained traction.

The recent decision of the Court of Appeal for Ontario in Birtzu v McCron, 2019 ONCA 777, reaffirmed the court’s approach to the “loser pays” principle consistent with other civil matters.  The parties to this appeal had endured a 21-day trial in 2016, following which the defendant McCron was held to be entirely successful. However, contrary to the “loser pays” principle, Justice Bloom, in his decision on costs released in 2017, decided instead that the parties would each bear their own costs.

Justice Bloom’s reasons were based on two findings in particular:

  1. Notwithstanding that the plaintiffs were entirely unsuccessful at trial, they had “reasonable grounds” on which to commence the action; and
  2. That McCron had lacked credibility with respect to one issue resolved at trial.

McCron successfully appealed the decision, and the Court of Appeal for Ontario awarded her costs of the trial on a partial indemnity basis, consistent in part with the “loser pays” principle.

At the outset, the Court of Appeal noted that costs awards are discretionary.  Rarely will litigants be granted leave to appeal except in cases where the lower court is found to have made a “legal error” or, more generally, where the costs award is “plainly wrong.”

The Court of Appeal acknowledged, in respect of the second criteria above, that a litigant’s conduct at trial and her credibility are relevant factors with respect to the issue of costs.  However, unless that litigant’s conduct bears on the length or the substance of the trial, it is not appropriate for a court to punish that litigant by denying them their costs.  The issue of McCron’s credibility was, in effect, moot given that she was successful “on all fronts” and, in any event, it did not impact the judge’s findings.

The Court held that McCron’s costs “should have followed the result”, but they did not.  The costs decision of the trial judge was held to be “plainly wrong” and accordingly overturned.

Thanks for reading.

Garrett Horrocks

18 Jul

Peering behind the Curtain: Costs against Non-Parties

Hull & Hull LLP Uncategorized Tags: , , 0 Comments

In March of last year, I blogged on the decision in Hunt v Worrod which dealt with predatory marriages and an individual’s capacity to marry.  There have been several developments in that case since then, most recently in a Court of Appeal decision released in June, concerning the issue of costs.

The facts of the case are set out in greater detail in my earlier blog, but a quick refresher may nonetheless be helpful.  The application was commenced by the applicant, by his two litigation guardians, largely for the purposes of challenging the validity of his marriage to the respondent and its effect on her property rights as a spouse of the applicant.  The respondent had been granted a legal aid certificate by Legal Aid Ontario (“LAO”), which funded her legal fees through trial.  Importantly, LAO was not retained as counsel by the respondent.  Rather, the respondent retained private counsel whose fees were funded by LAO.

The applicant was ultimately successful at trial and sought an order for costs against the respondent personally, the respondent’s counsel personally, and LAO.  In his decision on costs, Justice Koke ordered the respondent was to pay the applicant’s costs on a full indemnity basis.  However, he equally noted that, as a result of her limited means and tenuous financial position, it was unlikely that the respondent would be able to pay any amount of that costs award.

The trial judge then turned his mind to the request for costs payable by LAO.  In reviewing the circumstances of LAO’s involvement in the case, the trial judge held that it had failed to carry out its mandate by continuing to fund the respondent’s fees notwithstanding the lack of merit.  The trial judge ordered LAO to pay one-half of the amount of the costs award made against the respondent.

LAO appealed the costs award and was successful.  In its reasons, the Court of Appeal plainly stated that the decision to award costs against LAO could not stand, as it had been made on a misapprehension of LAO’s role in the matter.  While the trial judge had held that LAO purportedly failed to monitor the litigation that it had continued to fund, resulting in an abuse of process, the Court of Appeal took a markedly different view.

Notably, the Court of Appeal identified that LAO’s role was strictly limited to providing funding for the respondent to retain separate counsel in accordance with its statutory mandate.  LAO itself did not act for the respondent, nor was it a party to the initial application.

Had LAO been a party to the litigation, the Court of Appeal held that they would properly have been exposed to a potential costs award, subject to the discretion of the trial judge.  However, in the absence of  evidence of any bad faith on the part of LAO in continuing to fund the litigation, the Court of Appeal held that a costs award against LAO was not appropriate in the circumstances.

Thanks for reading.

Garrett Horrocks


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