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Like most disputes that wind up before the courts, estate litigation can come with a hefty price tag. It’s one of the reasons Derfel Litigation Lawyers works with our clients to resolve matters as quickly as possible while keeping their desired outcomes and needs in mind. Often times in cases, one party can request costs from the other party. We usually see this when the successful party to an issue asks for costs from the party that was not successful. But it’s important to keep in mind that even if you are successful in court, you aren’t necessarily going to be able to collect all of the money spent, especially if the other party is also successful in some parts of the decision. This lesson is explained well in a recent decision from the Ontario Superior Court of Justice.

Determining costs two years later

The issue was originally heard in 2018 with a decision issued towards the end of that year. The applicant and respondent were both trustees of the account. The respondent had brought an application to pass her accounts, but the applicant alleged that she breached her fiduciary obligations. The court ultimately found the respondent to have acted honestly and “with humanity.” The matter was settled, with neither party being entirely successful. The matter of costs had not been settled, though.

Both parties seek full indemnity

When the parties appeared back before the court, they each sought full indemnity (that is, they asked the court to award them all of the money they spent on trial). The original applicant asked for $89,683.60. He claimed that he brought his actions as part of his role as an estate trustee, and that he had an obligation to review the accounting of the estate done by the respondent. The respondent asked for $64,276.98.

Despite there being no clear winner, and courts have a history of not awarding costs for full indemnity in most cases, both parties sought to be paid back in full. They both asked that if the other party was not made responsible for the payments that the money come out of the estate, which was only valued at $339,000 (a large sum, but quite a bit smaller when costs are taken out).

Concern about a lack of self-awareness

In beginning its analysis, the court wrote,

“My overriding concern with the submissions by both parties is the continued and persistent lack of self-awareness of the respective weaknesses in their conduct and approach to the case. That, combined with a revisionist view of this litigation creates a misleading impression of what occurred and neglects the fact that at the end of the day, the gross value of (the) estate came to only $339,000 or so. If both parties were to be awarded the costs they seek, the only real beneficiaries of (the) estate would be the lawyers who represented each side, with nothing left for the beneficiaries.”

The court referred to Section 131 of the Courts of Justice Act which outlines the factors in discretion courts can make when awarding costs. Some of these factors include the amount claimed, the apportionment of liability, the complexity of the proceeding, and whether the parties acted improperly, vexatious, or unnecessarily.

In this case, the court tried to pick apart the requests for costs and identified the areas where it was actually warranted. They awarded the original applicant $18,000 and the original respondent $48,000. The court noted that this money was not to come out of the estate.

At Derfel Estate Law our Toronto estates lawyers work tirelessly to achieve the best possible resolution to your will, estate, or trust matter. Call us at 1-844-2-DERFEL or contact us online to schedule a consultation.

For professional service and knowledgeable advice on Estate Law matters contact Derfel Estates Law

Contact Derfel Estates Law today to speak with a Toronto estate lawyer who will work tirelessly to achieve the best possible resolution to your will, estate, power of attorney, or trusts dispute.

Call us at 1-844-2-DERFEL or contact us using the form.

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