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Bayford v Boese Encore

Last year I wrote two blogs on this case. The first was on the decision of the Ontario Court of Appeal,[1] which reversed the decision of S. Corthorn J at trial.[2] The second was on the Court of Appeal’s cost endorsement.[3]

In summary, the testator, Bruce Boese, had his lawyer prepare a draft will naming his long-time friend, Brenda Bayford, as his executor and sole beneficiary. She had helped him operate his farm for the last two decades of his life. Brenda could not locate the executed and witnessed will but brought an action to prove the will in solemn form. She produced two Versions of the draft will, both photocopies. Version 1 contained only Bruce’s signature and no signatures of witnesses. Version 2 contained Bruce’s signature and the signatures of two witnesses. Bruce’s brother, Brian, who stood to inherit half of Bruce’s estate if he died intestate opposed Brenda’s claim that Version 2 was Bruce’s will and should be admitted to probate. He claimed that the witnesses’ signatures had been added to Version 2 after Bruce died. Brenda never produced the original of Version 1, and a handwriting expert testified that Versions 1 and 2 contained copies of the same signature that was said to be Bruce’s, which is impossible. Corthorn J accepted Brenda’s evidence and held that Version 2 had been validly executed.

The Court of Appeal allowed the appeal on the ground that Corthorn J had fallen into palpable and overriding error, because she misunderstood Brian’s position and the importance of the expert evidence and made a number of other errors. In the costs decision the Court of Appeal held that Brian was not entitled to full indemnity costs on the appeal because, although a court can award such costs when a party has engaged in reprehensible, scandalous, or outrageous conduct, this principle normally applies only to trial proceedings and there was no such conduct on the appeal. However, the court awarded Brian costs on a substantial indemnity basis because he had the heavy burden of establishing that the trial judge made a palpable and overriding error. The court endorsed the parties’ agreement that Brian was entitled to his costs at trial and that the assessment of those costs should be referred to the trial judge. That assessment is the focus of this blog.

In the assessment proceedings,[4] Brian sought costs on a full indemnity basis, because in presenting her case as she did, Brenda in essence attempted to perpetrate a fraud on the court by knowingly misleading the court at trial about the documents she submitted.

In the 2019 costs endorsement, Corthorn J had been critical of Brenda’s lack of diligence in carrying out the oral and documentary discovery process, and that she failed to manage the relevant documents responsibly. Accordingly, she held that the costs to which Brenda was entitled from the estate should be reduced by 50%. Her Honour concluded that, on its own, this type of conduct did not rise to the level of conduct that would make an award of costs on a full indemnity basis appropriate. However, she went on to state:

27      Taking into consideration the plaintiff’s evidence at trial and the decision of the Court of Appeal for Ontario, I find that the plaintiff attempted to perpetrate a fraud on the Estate, on the beneficiaries under the existing valid will and on the court. The plaintiff did so in two capacities — as the putative estate trustee and as a litigant. She involved two other individuals in that attempt — the two individuals whose names and signatures appear on Version 2 as witnesses to the Testator’s signature and who gave evidence at trial.

28      I find that the litigation was caused entirely by the plaintiff’s conduct. Taking into consideration that finding and the findings previously made about the plaintiff’s litigation conduct, I conclude that the plaintiff engaged in the type of egregious and reprehensible conduct that warrants sanction in the form of an award of costs on a full indemnity basis. Consequences of this kind, for the type of behaviour in which the plaintiff engaged, serve as a deterrent to prevent others from engaging in similar conduct.

Accordingly, she held that Brian was entitled to his trial costs on a full indemnity basis. She then assessed the costs claimed by Brian by reference to the factors listed in r. 57.01(1) of the Rules of Civil Procedure and found them to be reasonable. Further, she applied the Court of Appeal’s order in its costs endorsement that, to the extent Brian cannot recover his trial costs from Brenda, he can recover them from the estate.

The assessments of the costs on the appeal and at trial will be welcomed by the bar, I’m sure, because they clarify when full indemnity costs may be awarded.

[1]    2021 ONCA 442. See https://welpartners.com/blog/2021/08/o-what-a-tangled-web-we-weave-bayford-v-boese/.

[2]    2019 ONSC 5663, 50 ETR 4th 204, followed by a costs endorsement at 2019 ONSC 6919.

[3]    2021 ONCA 533, 69 ETR 4th 216. See https://welpartners.com/blog/2021/12/costs-in-estate-litigation-on-a-finding-of-fraud/.

[4]    2021 ONSC 8392.


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