Ontario Civil

Civil Practice and Procedure


Particular orders as to costs

Moving party should expect enhanced costs if allegations of unethical conduct not made out

Full indemnity costs. When issues arose over respondent mother’s capacity to function as trustee for deceased father’s estate, her counsel J sought opinion from lawyer H about powers and authority of Public Guardian and Trustee on “no names” basis, but never retained him. Applicant daughter retained lawyer who worked at H’s law firm, and commenced litigation, alleging that mother and respondent siblings improperly administered father’s estate. Motion judge dismissed respondents’ motion for order prohibiting applicant’s lawyers from acting for her. Parties made submissions on costs. Respondents were jointly and severally liable to pay to applicant costs on full indemnity basis of $25,500. Motion to remove counsel was not borne of any legitimate concern for misuse of confidential information. If allegations of unethical conduct by opposing counsel were not made out, moving party ought to expect cost consequences at enhanced level. Respondents brought motion for illegitimate tactical reasons. Lack of bona fides was obvious because respondents had voluntarily disclosed H’s opinion prior to bringing this motion. Applicant was entitled to full indemnity costs. Hourly rates and time spent were reasonable, but small adjustment was made for costs relating to motion for sealing order than had not yet been heard.

Rubin Estate v. Rubin Estate (2017), 2017 CarswellOnt 3784, 2017 ONSC 1704, F.L. Myers J. (Ont. S.C.J.[Estates List]); additional reasons (2017), 2017 CarswellOnt 2926, 2017 ONSC 1404, F.L. Myers J. (Ont. S.C.J.[Estates List]).


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