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Objectors Beware: Summary Judgment and the ‘Loser Pays’ Principle

In the recent costs ruling on Columbos v. Columbos,1 the self-represented litigants who were on the receiving end of a motion for summary judgment were ordered to pay the applicant’s and moving party’s costs.

The estate matter2 had started as an application brought by Eugenia Columbus’s attorney for property during Mrs. Columbus’s lifetime.  The attorney for property, one of Mrs. Columbus’s many children, sought possession of a property owned by Mrs. Columbos.  The property was occupied by Mrs. Columbus’s daughter-in-law and two grandchildren who were the respondents in the application.  The daughter in-law was the widow of Peter Columbos and the grandchildren were his children.  Peter was Mrs. Columbos’s son who had died in 2011.  The respondents’ claim was based on the fact that they resided at the property and that Peter had made significant contributions of labour and money into the property.

Following the death of Mrs. Columbus, the grandson and one of the respondents filed a notice of objection in respect of the appointment of the applicant as estate trustee.  The applicant then brought a motion for summary judgment in respect of the notice of objection and seeking an order upholding the 2010 will of the deceased.

The grandson (objector) filed a cross-motion for summary judgment seeking an order that the 2010 will of the deceased was invalid, that a 2008 revocation was also invalid and that the respondent grandchildren have title to the property transferred to them.

The respondents were not represented by counsel.

Justice Healey ruled on the motion for summary judgment on February 28, 2014.  In the decision, Healey J. referred extensively to the Supreme Court decision in Hryniak,3 and found that there was sufficient evidence before the court to allow a decision short of a trial.  Justice Healey also noted that the fact that the estate had remained unadministered for a year militated in favour of a timely decision.  On the evidence before the court, Justice Healey ordered that the notice of objection was vacated, and declared that the 2010 will was the valid will of the deceased and that all previous wills were revoked, and dismissed the objector’s cross-motion.

On the issue of the property, Justice Healey ordered that the respondents vacate the property, and that a judgment for possession was to issue for the estate trustee.  Justice Healey did make allowance for claims by the respondents that Peter Columbus had improved the property and provided an opportunity for the respondents to separately deliver evidence of Peter’s contributions and a determination of unjust enrichment in respect of the property.

In April 2014, Justice Healey ruled on the issue of costs.  In reviewing the factors in Rule 57.01(1) and the relevant case law, Justice Healey noted that the applicant had total success on the motion for summary judgment and that there had been insufficient evidence to support the respondents’ positions.  Justice Healey concluded that this was an appropriate case for full indemnity costs.  Justice Healey allowed for the costs to be offset against the respondents’ entitlement under the estate but this was a strong message nevertheless.

The risk of proceeding with litigation that could be unsuccessful applies equally to self-represented litigants.  While as counsel, we can warn our clients of the risks of costs consequences, it is difficult for self-represented litigants to understand and assess the risk of proceeding with litigation.  This case drives home the point, however, that all parties, represented or otherwise, should carefully assess the likelihood of success on all proceedings, or they may find themselves facing a significant costs decision.

1. 2014 CarswellOnt 4872, 2014 ONSC 2263
2. 2014 CarswellOnt 2708, 2014 ONSC 1342
3. Combined Air Mechanical Services Inc. v. Flesch, 2014 S.C.C. 7 (S.C.C.)

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