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The Ontario Court of Appeal dismissed an estate appeal challenging donative intent, witness corroboration, executor fees, and substantial indemnity costs.
The Tax Court of Canada denied substantial indemnity costs after a settlement offer was improperly copied to the Court, but awarded enhanced costs and reduced disbursements.
Article 6.3 of the lease requires the landlord to apply a single consistent method to calculate the tenant’s realty tax liability (including first determining parking garage taxes), and the landlord’s mixing of methods was an unreasonable exercise of contractual discretion; the appeal of the motion decision is dismissed. However, the motion judge erred in awarding substantial indemnity costs based on findings of reprehensible litigation conduct; the costs award was excessive and is varied to a substituted cumulative award (legal fees $300,000 plus disbursements $125,706.30, total $425,706.30).
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The Court of Appeal dismissed the appeal, upholding the motion judge's finding that the appellant was properly categorized as a PEP, that the World-Check entries were supported by public sources and therefore not defamatory or a privacy breach, that the release barred claims arising from the MoneyGram matter including against Sitel, and that the substantial indemnity costs awards and the appellate costs awards were reasonable and not to be interfered with.
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The court held that the respondent is entitled only to partial indemnity costs; the settlement offer did not change the costs disposition and did not justify an award of substantial indemnity, and therefore the appellant was ordered to pay $7,601.21.
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The motion judge's determinations that the appellant engaged in a long history of vexatious proceedings and that the respondents were properly authorized to bring the s.140 application were supported by the record; there was no error in law or principle and no basis for appellate interference, therefore the appeal is dismissed.
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The appellants' appeal was devoid of merit and founded on unsubstantiated allegations of misconduct; enhanced costs are warranted and, because the appellants stood to benefit personally from a favourable outcome, costs must be paid personally by them. Having regard to authorities on calculating substantial indemnity, the court fixed substantial indemnity costs at 80% of full indemnity and awarded the respondent a single all-inclusive amount of $80,000 to be paid by the appellants.
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The Court accepted the trial judge's factual findings that the father authorized the 1997 transfer, there was no evidence of fraud or conspiracy, and the 15-year limitation period had expired; given the appellant acted unreasonably, pursued unsubstantiated allegations primarily for personal benefit, and failed to reasonably administer the estate, the trial judge did not err in ordering personal substantial indemnity costs against her.
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The appeal was dismissed because the evidence supported the motion judge's findings that the appellants entered into the mortgage, the respondents advanced the claimed amounts and the appellants defaulted; the defence and counterclaim were so unparticularized they could be struck without leave where no proposed amendments were offered; there was no prejudice or risk of inconsistent findings from granting judgment before unrelated proceedings; and the respondents were entitled to substantial indemnity costs under the mortgage.
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The appeal was traversed to the Divisional Court by consent and the respondent was awarded costs on a substantial indemnity basis because the appellants acted unreasonably (including improperly seeking costs against counsel without basis and delaying settlement), thereby causing unnecessary expense.
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