Tag: settlement

22 Oct

Breaching Confidentiality of a Settlement

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

Often, matters are settled with a term requiring that the terms of the settlement be kept strictly confidential. What happens if such a term is breached?

The decision of an arbitrator in Acadia University v. Acadia University Faculty Association, 2019 CanLII 47957 (ON LA) provides an answer. There, Dr. Rick Mehta, a tenured professor, was terminated for alleged cause. The matter was settled at a voluntary mediation. Faculty counsel were present, along with Dr. Mehta’s personal counsel.

A term of the settlement provided that the settlement was “without any admission of liability or culpability by any of the parties”. Further, the parties agreed “to keep the terms of these Minutes strictly confidential except as required by law or to receive legal or financial advice.” “If asked, the parties will indicate that the matters in dispute proceeded to mediation and were resolved, and they will confine their remarks to this statement. Stated somewhat differently, it is an absolute condition of these Minutes that no term of these Minutes will be publicly disclosed.”

Under the settlement, Dr. Mehta was to receive a specific payment, said by the arbitrator to be a “relatively modest amount”.

Unfortunately for Dr. Mehta, he tweeted that he had been “vindicated”. In response to a comment from a follower stating that the follower hoped that Dr. Mehta received a “nice sum monz”, Dr. Mehta replied saying “all I will say is that I left with a big grin on my face.” He later tweeted that “I got the vindication that I was seeking. … I have left the university on my term, as opposed to the administration’s or union’s terms.”

Dr. Mehta was ordered by the arbitrator to remove the tweets. Dr. Metha responded with more tweets referring to his “severance pay”. He threatened to release the Minutes to the media unless certain conditions were met.

The arbitrator found that there was a clear breach of the Minutes. The arbitrator went on to find that by reason of the breach, the University was not required to honour the payment provision under the Minutes.

A similar result was reached in the decision of Jan Wong v. The Globe and Mail Inc., 2014 ONSC 6372. There, reporter Jan Wong reached a settlement after the termination of her employment by The Globe and Mail. The settlement contained a term that Ms. Wong would not, until August 1, 2009, “disparage The Globe and Mail or any of its current or former employees relating to any issues surrounding her employment and termination… .” The settlement further provided that the terms of the settlement were not to be disclosed. The settlement also contained a provision that if there was a breach, Ms. Wong would have an obligation to pay back the settlement funds.

Subsequently, Ms. Wong wrote a book about her relationship with The Globe and Mail. It was to be published by Doubleday. The Globe and Mail objected to the publication of the book, and Doubleday terminated its publication contract with Ms. Wong. Ms. Wong then self-published her book.

In her book, Ms. Wong did not say what she was paid as severance. However, she made various references to the payment, including:

  • “I’d just been paid a pile of money to go away …”;
  • “Two weeks later a big fat check landed in my account”; and
  • “Even with a vastly swollen bank account …”.

The Globe and Mail argued that these references were in breach of the Minutes of Settlement. The arbitrator agreed. Ms. Wong’s application for judicial review was dismissed. Ms. Wong was ordered to repay the $209,912 in severance that was paid to her.

Bottom line: If your Minutes of Settlement contain a confidentiality clause, keep the settlement confidential!

Thank you for reading.

Paul Trudelle

03 Sep

Motions to approve a settlement – Are they brought in writing or in person?

Stuart Clark Estate Litigation Tags: , , , , , , , , , , , 0 Comments

I have previously blogged about the need to have any settlement which affects the interests of a party under a “legal disability”, whether on account of them being a minor or otherwise, to be approved by the court in accordance with rule 7.08 of the Rules of Civil Procedure before the settlement is binding upon the party under a disability. Although rule 7.08 is clear what materials need to be included in any Motion to approve a settlement, with affidavits being required both from the incapable person’s litigation guardian as well as the litigation guardian’s lawyer outlining why they believe the settlement should be approved, what is less clear is the actual procedure by which such a Motion is brought before the court.

There has been some debate recently about whether in Toronto a Motion to approve a settlement should be brought in writing or if they should be brought before a Judge in person. The apparent confusion appears to be caused by what appear to be competing instructions that are contained in the practice direction for the Toronto Region as well as the practice direction for the Estates List, with one appearing to tell you to bring the Motion in writing and the other appearing to tell you to do the opposite.

The general practice direction for the Toronto Region provides the following regarding an approval Motion under rule 7.08:

A motion under Rule 7.08 must be brought in accordance with the Best Practice’s Guidelines and Checklist for rule 7.08 matters.”

The Best Practice’s Guidelines and Checklist in turn provides:

Rule 7.08 requires the approval of a judge for any proposed settlement on behalf of a party under a disability. This is done by way of a motion made in writing or if no action has been commenced, then the approval of a judge is obtained by way of an application. In Toronto, Rule 7 motions and applications are to be filed as in-writing motions through the civil intake office, in the motions department.” [emphasis added]

The checklist appears clear that if you are bringing a motion to approve a settlement in Toronto that it is to be done in writing. As a result, if your matter is subject to the general Toronto practice direction, it would appear fairly clear that your approval Motion must be brought in writing.

Although the general Toronto practice direction appears clear that approval Motions are to be brought in writing, many, if not most, estates matters in Toronto are adjudicated on the specialized Estates List. The general Toronto practice direction notes that it does not apply to matters on the Estates List unless it is specifically mentioned, stating:

This Practice Direction does not apply to motions or applications heard on the Commercial and Bankruptcy Lists, Estates List, or under the Class Proceedings Act, 1992, unless specifically mentioned.” [emphasis added]

There appears to be no reference in the general Toronto practice direction that the “in writing” rule for approval Motions is to apply to matters on the Estates List. As a result, it would appear that such a rule does not apply to matters on the Estates List, and that we are to revert to any direction provided in the Estates List practice direction regarding approval Motions.

The Estates List practice direction provides the following regarding how approval motions are to be brought before the court:

Where the settlement of a proceeding on the Estates List requires court approval, the motion for approval of the settlement and the application for the appointment of a guardian of property should be brought before a judge on the Estates List.” [emphasis added]

There is no reference in the Estates List practice direction to the approval motion having to be brought in writing, with the practice direction simply stating that it has to be brought “before a judge”. Although a technical reading of such a direction may suggest that a matter could be brought “before a judge” in writing, in the absence of any specific bar to bringing the approval Motion before a Judge in person, and as Judges often have questions about a settlement before granting their approval, it would appear that absent any additional direction from the court that approval motions on the Estates List can (and probably should) still be brought before a Judge in person.

The result of all of this appears to suggest that if you are seeking the approval of a settlement in Toronto and your matter is on the general civil list that you have to bring the approval motion in writing. If you matter is on the Estates List however it would appear likely that you can continue to bring your approval Motions in person before a Judge. Matters in jurisdictions outside of Toronto should consult with your local practice direction for any direction regarding how they may want you to bring any approval Motions.

Thank you for reading.

Stuart Clark

06 Jun

When does a Settlement become Binding and Enforceable?

Rebecca Rauws Estate & Trust Tags: , , , , , , , , , , , 0 Comments

At what point does a settlement become final? Is it when the parties agree on all of the terms of the settlement and sign a written agreement, such as minutes of settlement? Or at an earlier time?

In the recent decision of Cox v Baker, 2019 ONSC 2859, the court was asked to make a determination as to whether a binding settlement had been reached. The litigation involved an inter vivos trust (the “Trust”) settled by a mother for the benefit of her two daughters and subsequent generations. After the death of Donna (the second to die of the two daughters), the three living beneficiaries were Donna’s sons, Brett and Brent, and her niece, Marnie. Brett was the sole trustee after Donna’s death.

Prior to her death, Donna was living at a house that was owned by the Trust (the “Property”), with her husband, John. About a year after Donna’s death, in March 2018, John brought an application against Brett, as trustee of the Trust, and against all three of the beneficiaries, personally, seeking, among other things, an interest in the Property by way of resulting and/or constructive trust.

In May 2018, John and Brett ran into each other at Donna’s gravesite. They discussed John’s application, John advised Brett that he would call his lawyer and withdraw his application, and the two shook hands. Thereafter, a number of emails were exchanged between counsel for John, and counsel for Brett, Brent, and Marnie. It appeared that the parties had reached an agreement that John would withdraw his application, without costs, provided that all parties sign a mutual release. However, John subsequently took the position that there was never a binding settlement agreement, as the parties had not agreed on the specific terms of the mutual release. Brett, Brent, and Marnie brought an application to enforce the settlement.

Ultimately, the court concluded that a binding settlement had been reached. Some of the key factors were, in the court’s finding, that there had been a mutual intention between the parties to create a legally binding contract, and that all essential/material terms had been agreed upon. The court also noted that the agreement had been reduced to writing by way of the email exchanges between counsel.

The court specifically considered whether the fact that the parties had not yet agreed on the specific wording of the mutual release was necessary to create a binding settlement. After reviewing the case law, the court concluded that, unless there is some indication that the settlement was conditional on the parties also agreeing on the language for a release, it is not required that the parties agree on the specific terms of such a release before there will be said to be a binding settlement agreement.

The court also commented on the importance of the principle of finality, which demands that settlements entered into with the assistance of legal counsel be upheld, as it is a matter of good public policy to encourage settlement. Settlements of this kind should be upheld other than in exceptional cases, which the present case was not.

This decision is an important reminder that, if the parties have reached an agreement on all essential terms, even if the more minor details have not been agreed upon, and the minutes of settlement and/or release have not been finalized and executed, a binding settlement may still exist. Parties should be aware that once a binding settlement has been reached (which could happen prior to signing minutes of settlement), they cannot simply change their minds. It is important to keep this in mind at all stages of a negotiation, and to be alert as to when it could be said that all essential terms have been agreed upon.

Thanks for reading,

Rebecca Rauws

 

Other blog posts that may be of interest:

07 May

Hull on Estates #571 – Can you bind non-signatories to a settlement?

76admin Hull on Estate and Succession Planning, Hull on Estates, Podcasts, Show Notes Tags: , , , , , 0 Comments

Today on Hull on Estates, Stuart Clark and Charlotte McGee discuss settlement agreements and non-signatories – specifically, if a settlement agreement affects the interests of a non-signatory to the settlement, can such a settlement bind the interests of the non-signatory?

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Stuart Clark.

Click here for more information on Charlotte McGee

09 Apr

Can you bind non-signatories to a settlement?

Stuart Clark Estate Litigation Tags: , , , , , , , , , , , , , , , , , , 0 Comments

Estate litigation can be costly both financially and emotionally. As a result, there is often a strong incentive for parties to try to reach a negotiated settlement. Although entering into a settlement which resolves the estate litigation may appear straightforward from the outside, it may become more complicated if all potential financially interested parties are not signatories to the settlement. It is not uncommon in estate litigation for all beneficiaries of the estate to not actively participate in the litigation, leaving it to people such as the Estate Trustee or the other beneficiaries to defend a claim. As a settlement is in effect a contract between parties, if a settlement is reached which affects the interests of a non-signatory to the settlement can such a settlement bind the interests of the non-signatory?

I have previously blogged about section 48(2) of the Trustee Act, and an Estate Trustee’s ability to settle claims on behalf of the estate which can bind the interests of the beneficiaries. While section 48(2) would allow the Estate Trustee to bind the interests of all beneficiaries to the settlement, the Estate Trustee does so at their own potential liability, as it is possible that one or more of the beneficiaries may later challenge the decision of the Estate Trustee to enter into the settlement, potentially seeking damages against the Estate Trustee if they are of the position that the settlement was not reasonable or in the best interest of the estate. As a result of such a risk, it is not uncommon for an Estate Trustee to be hesitant to enter into a settlement on behalf of the estate in contentious situations, not wanting to potentially expose themselves to personal liability if one or more of the beneficiaries should later object to the terms of the settlement. If an Estate Trustee is hesitant to enter into a settlement on behalf of all beneficiaries, but all actively participating parties are otherwise in agreement with the settlement, is there a way to bind the interests of non-participating parties to the settlement?

The Rules of Civil Procedure provide the court with the ability to “approve” a settlement on behalf of parties who are not signatories under certain limited circumstances. This is done in accordance with rule 7.08 of the Rules of Civil Procedure, which allows the court to approve a settlement on behalf of a party who themselves cannot consent to the settlement on account of being under a legal disability (i.e. a minor). Perhaps importantly however, the court only has the authority under rule 7.08 to “approve” a settlement on behalf of a party under a legal disability, and rule 7.08 is not available in circumstances where the non-signatory is fully capable.

The Rules of Civil Procedure do not otherwise appear to provide any mechanism by which a settlement can be approved on behalf of a party who is not under a legal disability. As a result, if the non-signatory who you are you attempting to bind to the settlement is not under a legal disability, the court likely does not have the authority to “approve” the settlement on their behalf under the Rules of Civil Procedure.

Although the court likely does not have the ability to “approve” a settlement on behalf of an individual who is not under a legal disability in accordance with the Rules of Civil Procedure, this does not necessarily mean that there are no other ways to potentially bind the individual to a settlement. One potential solution may be to seek an Order “in accordance” with the terms of the settlement on notice to all interested parties. Should the court issue such an Order, which in effect repeats the terms of the settlement but as an Order of the court, the non-signatories would arguably then be bound to the terms of the settlement as it would now be in the form of an Order of the court.

Thank you for reading.

Stuart Clark

26 Mar

Case Conferences Can Be a Valuable Tool in Estate Litigation

Christina Canestraro Estate Litigation Tags: , , , , , 0 Comments

I recently attended a panel discussion with judges of Toronto’s Commercial and Estate Lists, the purpose of which was to explore tips for effective practice and advocacy. A key takeaway from this discussion was that case conferences are a valuable tool in a litigator’s toolbox, particularly when litigation becomes contentious.

Case conferences are governed by Rule 50 of the Rules of Civil Procedure. The purpose of Rule 50 is to promote settlement of some or all of the issues in dispute without a hearing, and to obtain orders or directions to ensure that any necessary hearing is expeditious, orderly, and efficient.

Case Conferences in Estate Litigation
Case conferences are a valuable tool for parties who are looking to narrow the issues before the court, establish a timetable, or potentially reach a full and final settlement.

Rule 50.13 dictates that a judge may direct a case conference before a judge or case management master, in either an action or application, on his or her own initiative or at a party’s request. A judge can direct a case conferences at any stage of the litigation. Pursuant to Rule 50.13(5), at a case conference, the judge or case management master may:

  • identify the issues, noting those that are contested and those that are not;
  • explore methods to resolve the contested issues;
  • if possible, secure the parties’ agreement on a specific schedule of events in the proceeding;
  • establish a timetable for the proceeding; and
  • review and, if necessary, amend an existing timetable.

As discussed by my colleague, Kira Domratchev, in her blog on Rule 49 offers to settle, Ontario is a jurisdiction where parties are encouraged to settle their legal disputes prior to reaching the ultimate hearing of a matter. Case conferences are a valuable tool for parties who are looking to narrow the issues before the court, establish a timetable, or potentially reach a full and final settlement.

Thank you for reading.

Christina Canestraro

23 Nov

Settling Everything But Costs, Again

Paul Emile Trudelle Estate & Trust, Estate Planning, Trustees, Uncategorized, Wills Tags: , , , 0 Comments

On March 27, 2014, I blogged on the issue of settling litigation, but leaving the issue of costs to the court. I noted the decision of Dhillon v. Dhillon Estate, 2009 CanLII 58607 (ON SC), where the matter was settled on the eve of trial, but the parties left the issue of costs to the court. The court declined to make any award of costs, as the factors to be considered in awarding costs had not been determined by the court.

In the decision of Koster v. Koster, 2018 ONSC 6896 (CanLII) released November 19, 2018, the issue arose again.  A motion was brought for summary judgment, but as the court determined that it could not decide the question without a trial, the motion was dismissed. The parties then went to mediation, where the matter was settled, except for the issue of costs. Pursuant to the settlement, the entitlement and quantum of costs was to be determined by the court.

There, the court declined to make any costs award. The court referred to the Dhillon decision.

In refusing to award costs, the court stated:

By definition, a settlement is a compromise between the litigants’ positions. Also by definition, it is agreeable to all the parties. It is impossible to say with accuracy why any particular settlement was acceptable to one or other of the parties. Put another way, an award of costs is typically grounded in findings by the court as to the parties’ respective success and the impact of their actions during litigation, which are findings not made in the event of a settlement.

The court also cited from the decision in Waterloo North Condominium Corporation No. 161 v. Redmond, 2017 ONSC 1304 (CanLII). There too, the court declined to determine liability for costs following a settlement. There, the court stated:

Moreover to embark upon a full examination and adjudication of the merits of the parties’ respective substantive claims and defences for the sole purpose of determining the question of costs, when those substantive issues have been settled by the parties, would run counter to the principle in McLellan that costs are incident to a determination of the rights of the parties and are not to be made themselves the subject matter of the litigation.

As I concluded in my March 2014 blog, settling but leaving the issue of costs to the court should be avoided. Courts will be reluctant to relitigate the entire matter in order to make a determination as to who was right and who was wrong and therefore entitled to or liable for costs.

 

 

Have a great weekend.

Paul Trudelle

05 Nov

When Will a Rule 49 Settlement Be Enforced?

Kira Domratchev Litigation Tags: , , , , , 0 Comments

According to Rule 49.09 of the Rules of Civil Procedure, a party may bring a motion for judgment in accordance with the terms of an accepted offer and the judge may grant judgment with respect to same or continue the proceeding as if there had been no accepted offer to settle.

In a recent Court of Appeal decision (Hashemi-Sabet Estate v Oak Ridges Pharmasave Inc. 2018 ONCA 839) the Court had to determine whether the motion judge erred in giving judgment in accordance with a Rule 49 offer to settle because said offer was revoked before it was accepted.

Background

The Respondent (the Estate), sued the Appellant for damages for breach of contract, oppression and various other causes of action relating to the opening and operation of a pharmacy.

On June 8, 2015, the Appellant served the Respondent with a written Rule 49 offer to settle the action. In accordance with Rule 49, the offer provided that it would be open until the trial of the action.

In April, 2016, the Appellant retained new counsel, and a Notice of Change of Lawyer was served in accordance with the Rules of Civil Procedure.

On September 20, 2016, the parties attended a pre-trial conference. The Appellant maintains that the June 8, 2015 offer to settle was rescinded orally at the pre-trial conference and that the offer to settle served on September 19, 2016 revoked the June 8, 2015 offer, in any event.

The Respondent on the other hand, maintained that when counsel returned to their office following the pre-trial conference, a written acceptance of the June 8, 2015 offer to settle was sent by fax at 1:27 p.m. on the same day. According to further evidence tendered by the Respondent, opposing counsel’s office called and requested a copy of the June 8, 2015 offer to settle following the pre-trial conference on September 20, 2016 and that a copy was sent to opposing counsel via email at 2:34 p.m. that day (arguably after acceptance of same was sent via fax).

The Respondent acknowledged receipt of the second offer to settle but maintained that it was not served until 5:23 p.m. on September 20, 2016 (hours after the June 8, 2015 offer was accepted).

The Respondent brought a motion for judgment in accordance with the June 8, 2015 offer to settle and the motion judge granted same. The Appellant appealed the decision to the Court of Appeal.

Court of Appeal Decision

The Court agreed with the motion judge. The Court found that the revocation of the June 8, 2015 offer to settle did not comply with Rule 49.02(1) which requires that the revocation be made in writing. As such, the timing of service of the second offer to settle would be determinative of the motion.

The Court held that in determining whether to enforce a Rule 49 offer to settle, a two-step approach is to be undertaken, similar to the pre-Hryniak v Mauldin 2014 Supreme Court of Canada decision Rule 20 summary judgment analysis.

As such, the Court agreed with the motion judge’s analysis in accordance with the above-noted framework was appropriate as follows:

  1. Whether an agreement to settle had been reached;
  2. Whether, on all the evidence, the agreement should be enforced.

The Court agreed that the motion judge had to make credibility findings and held that the Respondent’s position was more credible such that the June 8, 2015 was accepted and that judgment in accordance with the said offer should be enforced. In particular, the Court had trouble with the fact that the Appellant had known for over a year that the Respondent took the position that their counsel was not served with the second offer to settle until 5:23 p.m. on September 20, 2016, but did not submit an Affidavit of Service from the process server.

In light of this decision, it is particularly important to be mindful of the particular rules related to Rule 49 offers to settle, both in making an offer to settle and considering to revoke same. Particularly in relation to service of an offer to settle, it may a good idea to serve it in such a manner as to be able to confirm receipt of same by the other side, such as via facsimile. It is important to remember that service via email will not qualify as proper service, particularly if the opposing side maintains the email was never received.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

What is a Rule 49 Offer to Settle?

Revoking a Rule 49 Offer to Settle

Cost Awards and Offers to Settle

27 Jul

Legal Fees as a Settlement Consideration

Nick Esterbauer In the News, Litigation Tags: , , , , , , , , , , , 0 Comments

This weekend marks the end of the 105th Tour de France.  This year’s race has been full of controversies, first as a result of allegations of doping by pre-race favourite and four-time winner Chris Froome (and a related threatened cyclist strike) and subsequently ranging from disqualification of one cyclist for punching another to the inadvertent tear-gassing of cyclists by French police.

This spring, news surfaced regarding a settlement negotiated in respect of the claims against controversial cycling figure Lance Armstrong.  Armstrong’s former teammate, Floyd Landis, had commenced proceedings against him in 2010 under the False Claims Act.  The United States government became involved in the fraud proceedings in 2013 after Armstrong admitted to using performance-enhancing drugs after years of public denial.

The litigation commenced by Landis was settled earlier this year.  Terms of settlement were reported to involve a payment by Armstrong of $5 million (of the $100 million claimed against him), as well as a payment to Landis of $1.65 million in legal fees.  Accordingly, Landis’ one-quarter share in the settlement payment is less than what he will receive in legal fees.

It is not unusual in our work to see settlement terms involving the payment of one or more party’s legal fees as part of or in addition to a settlement payment.  Especially where litigation spans the better part of a decade, the legal fees incurred can rival or exceed the quantum of the settlement payment itself and may form an important part of negotiations.

Have a great weekend,

Nick Esterbauer

18 Jul

Substantial Indemnity Costs Ordered Against Estate Trustees Personally

Ian Hull Beneficiary Designations, Estate & Trust, Estate Planning, Trustees, Uncategorized, Wills Tags: , , 0 Comments

Newlands Estate was a dispute between three siblings over a $30,000.00 painting.   The three siblings were beneficiaries and estate trustees of their late father’s estate.  Two of the siblings commenced an application in their capacity as Estate Trustee as against their brother and sought advice from the Court regarding the painting which they alleged was an asset of the Estate.  They also alleged breach of fiduciary duty and sought costs of the application on a substantial indemnity basis.

The respondent argued that the painting was gifted to him by his late father on the condition that he pay the value of same to the Estate.

In an earlier decision, released in November of 2017, Justice Spies dismissed the application finding that the painting was not an asset of the Estate and that the applicants were obliged to convey ownership of the painting to the respondent personally upon receipt of the full and final payment of $30,000.00.  The Court also found that the respondent had not breached his fiduciary duty as Estate Trustee.

In this follow up decision Justice Spies dealt with the Costs of the application.  The respondent sought substantial indemnity costs against the applicants personally in the amount of $214,832.00 or alternatively, partial indemnity of $148,218.00.

The Court found that the application was unnecessary and having considered their conduct throughout, ordered them to personally pay substantial indemnity costs to the respondent.

This case is an example of not only the risk of liability that estate trustees must keep in mind when acting in the fiduciary role of estate trustee, but also the risks of not accepting reasonable settlement offers.

Background of Settlement Offers Exchanged

Before the application was commenced the respondent offered to pay the agreed upon value of the subject painting ($30,000.00) to the Estate.  He also offered to resolve some other issues regarding the administration of the Estate. The applicants did not provide a formal response to this offer.

After the commencement of the proceeding, the respondent made five offers to settle on various dates.  These offers addressed the painting and other administration issues.

In February of 2017, the applicants presented a counter-offer consenting to the release of the painting to the respondent and provided that the application be withdrawn without costs and that the parties bear their own costs.  They declined to deal with any of the other terms.

During the course of the litigation, the action became the subject of three Orders setting out deadlines for mediation, cross-examination and scheduling a hearing.  The applicants were non-compliant with the Orders for cross-examination and caused the rescheduling of the hearing, all of which led to additional costs incurred by the respondent.

Analysis

The applicants argued that the respondent’s original offer was not an offer to settle within the meaning of Rule 49 of the Rules of Civil Procedure as it was made before the application began.  They acknowledged, however, that the Court has broad discretion to consider pre-litigation offers with respect to costs.

The respondent submitted that his original offer was an offer to settle that the applicants rejected and that this Court has broad discretion to consider any offer in deciding to award substantial indemnity costs.

The Court cited, with agreement, the view expressed in Brough and Whicher Ltd. v. Lebeznick, 2017 ONSC 1392, at para. 20, that a pre-litigation offer is relevant to the consideration of costs, as it can demonstrate whether a party was prepared to be reasonable from the outset and noted that “clearly” the respondent’s original offer indicates that he was prepared to be reasonable.

In the circumstances, Rule 49.10 would only entitle the respondent to partial indemnity costs.  The respondent, relying on the decision of the Ontario Court of Appeal in S & A Strasser Ltd. v. Richmond Hill (Town), [1990] O.J. No. 2321 (Ont. C.A.), argued that the Court has broad discretion to consider any offer in deciding to award substantial indemnity costs.

After reviewing the competing authorities, Justice Spies noted:

I do not understand the law to limit my discretion to award solicitor-client costs to only cases where unsubstantiated allegations of fraud, deceit and dishonesty have been made. It has been repeated in a number of cases that the trial judge in Strasser said: “I think this case, in these circumstances, screams for solicitor-and-client costs.”  Furthermore, Rule 57.01 (4) gives me authority to award all or part of the respondent’s costs on a solicitor-client basis and Rule 57.01 (1) permits me to consider any offer to settle and Rule 57.01(1) (f) (i) provides that I may consider whether any step in the proceeding was improper, vexatious or unnecessary.

The Court noted that the applicants misused their authority, brought an application that was improper, vexatious and unnecessary to punish the respondent, who was a sibling with whom they did not get along.  They used their position as Estate Trustees to shield themselves from personal liability and ran up costs of a quarter million dollars ostensibly to recover a $30,000 painting:

In my view, not ordering them to fully reimburse John for his legal costs would bring the administration of justice into disrepute.

The applicants’ argument that the respondent should only be entitled to costs up to the date of their counter-offer was not accepted in light of their refusal to deal with other issues pertaining to the administration of the Estate and the fact that by the time that offer was served the respondent had incurred substantial legal fees.

Costs were fixed at $180,167 plus HST for a total of $203,589 payable by the applicants personally.  Given the applicants’ conduct, this was not a case where costs ought to be paid from the Estate.

The applicants were also ordered to pay the respondent’s full disbursements minus what had been paid out of the Estate.

Takeaways

Substantial litigation costs to be paid personally by an estate trustee is not common, but well within the discretion of the presiding Judge.  Parties to estate litigation should assess their personal exposure to costs before launching a lawsuit or motion, similar to those involved in civil litigation cases.

 

 

Thanks for reading,
Ian Hull

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