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

Case Summary

This was a Costs Decision following an Application for Summary Dismissal in a disputed estate matter. The substantive Application was dealt with by consent of the parties, but the ability to speak to Costs was reserved.

The Applicant, who was the Executor of the deceased’s estate, sought solicitor-client Costs of $20,041.91.

The Court began with the presumption, set out under Rule 10.29, that the successful party is entitled to Costs from the unsuccessful party. The Court also noted the factors listed under Rule 10.33 which may be considered in making a Costs Award.

In the result, Justice Hollins granted the Application for solicitor-client Costs based on the following: (a) The Respondent had made unfounded allegations of undue influence, which in estate matters are treated akin to allegations of fraud; (b) Given that the estate was distributed evenly amongst the deceased’s children, the proceedings initiated by the Respondent could have had no practical impact and were seemingly motivated by personal distrust; (c) There was undue delay on the Respondent’s part, including litigation conduct which unnecessarily prolonged resolution of the dispute and which caused a waste of judicial resources; (d) Per Rule 10.33(1)(a), the Applicant was wholly successful; and (e) Per Rule 10.33(1)(b), the amount at issue was minimal and disproportionate to the years of litigation that followed.

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