jones j

10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
10.33: Court considerations in making costs award

Case Summary

The testator’s wife (“Mrs. Aldred”), a beneficiary under the will, sought various forms of relief from the Court, including an Order for maintenance and support (the “Omnibus Application”). Prior to the hearing of the Omnibus Application, Mrs. Aldred brought an Application before the Case Management Judge seeking the production of certain records in the custody of Bennett Jones LLP (the “Records Application”), which the personal representatives resisted based on privilege. Following the Records Application, Mrs. Aldred sought solicitor-client Costs from the estate, and the personal representatives sought an Order that no Costs be awarded to Mrs. Aldred.

Mrs. Aldred relied on Rules 10.29 and 10.31, arguing that she was successful in the Records Application and was therefore entitled to Costs. Justice Jones stated that the Records Application Decision ordered limited and controlled production, not wholesale release of the requested records, and, based on this limited success, declined to grant Costs to Mrs. Aldred at this time. Jones J. noted that Rule 10.33(1)(g) takes on added significance in estate litigation because such cases often involve consideration of other matters, including public policy arguments and whether the applicant is exercising a statutory right, not listed in Rule 10.33(1).

Finally, Justice Jones held that the personal representatives had a duty to assert solicitor-client privilege and ordered that they were entitled to full reimbursement from the estate for their reasonable legal Costs in the Records Application, subject to taxation. Jones J. also held that Bennett Jones LLP was entitled to be reimbursed by the estate for reasonable costs associated with record production arising from the Decision in the Records Application.

View CanLII Details