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Smith Estate v. Rotstein revisited: After Court of Appeal Ruling, Superior Court Upholds Earlier Costs Decision

Re Estate of Ruth Smith; Smith v. Rotstein, 2012 ONSC 4200 (CanLII)

We earlier blogged about the Court of Appeal decision in Smith Estate v. Rotstein, in which the Court ordered the Superior Court judge to re-assess the responding party’s costs.

This case began when the daughter of the Deceased (the “objector”) filed a Notice of Objection to the issuance of a Certificate of Appointment of Estate Trustee for her brother, Lawrence Smith in respect of their mother’s Will and four codicils. In the Notice of Objection, the objector alleged that the Deceased had lacked testamentary capacity, knowledge or approval of the contents of her Will and codicils, that the Deceased had been subjected to undue influence, and that there were suspicious circumstances in the preparation of the Deceased’s Will and codicils.

Mr. Smith brought a motion for summary judgment in respect of the Will and two of the four codicils. That motion was heard by Justice Brown who granted the motion and ordered that partial probate issue to Mr. Smith in respect of the Deceased’s Will and two codicils. Ruling on the issue of costs on July 5, 2010, Justice Brown ordered the objector to pay Mr. Smith’s costs in the amount of $707,173.00 for fees and $30,407.29 for disbursements. In his decision, Justice Brown noted that the objector had not provided her own bill of costs, such that he could assume that she had incurred similar costs to Mr. Smith’s in the proceedings.

The objector appealed Justice Brown’s decision. The Court of Appeal dismissed the appeal on the summary judgment but allowed the appeal on costs. Armstrong J.A. upheld the awarding of costs on a full indemnity scale, but ordered that the quantum be re-assessed by Justice Brown.

The objector sought leave to appeal the decision of the Court of Appeal to the Supreme Court. Leave was denied on February 23, 2012.

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The decision of Justice Brown on the re-assessment of costs, pursuant to the Court of Appeal’s ruling was issued on July 18, 2012.

In making his decision Justice Brown referred to the initial costs submissions made by the objector as well as further costs submissions both of which set out the objector’s objections to Mr. Smith’s bill of costs. Mr. Smith’s counsel replied to the objector’s complaints, and Justice Brown undertook a detailed analysis of both the objections and responses. Addressing the objector’s general allegation that there had been “over-lawyering” in respect of the motion for summary judgment, Justice Brown noted that without a bill of costs from the objector, he could only fairly conclude that her counsel had spent a comparable amount of time on the lengthy and complicated motion.

After addressing all of the objector’s concerns, Justice Brown concluded “without reservation” that the fees claimed by counsel for Mr. Smith were “fair, reasonable and proportionate in the circumstances.” In the end, Justice Brown upheld the earlier award of full indemnity costs in the amount of $707,173.00 in Mr. Smith’s favour. Justice Brown then awarded Mr. Smith partial indemnity costs on the re-assessment.

And so, after an appeal to the Court of Appeal, an unsuccessful application for leave to appeal to the Supreme Court, and a re-assessment at the Superior Court of Justice, the objector finds herself obliged to pay the same costs she had been ordered to pay more than two years earlier.

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