On November 23, 2023, Justice Myers presided over a high-conflict estate case, Rai v. Rai 2023 ONSC 7182, where the applicant identified 23 heads of relief, against five parties, including the Public Trustee, and sought orders for the revocation of a power of attorney; an order for the appointment of a guardian for an elderly parent; an accounting of funds allegedly taken from the estate of the elderly parents; orders for a constructive and resulting trust; and a declaration that the family matriarch’s will was not valid.
As the case unfolded, many of the orders sought were abandoned, with the parties attempting to turn a one-day chambers hearing into a full-blown trial, despite the absence of examinations for discovery, no affidavits filed, no pre-trial conference, no trial management conference, no order for viva voce evidence despite counsel’s overtures, no trial had been ordered, and no defined causes of action or issues entitled the parties to the relief identified. The parties had previously obtained orders for the delivery of their respective affidavits, written argument to be exchanged, and pre-hearing cross-examinations to take place, but had failed to abide by pre-hearing orders, or had filed submissions on the eve of the hearing.
The court found that:
“What seems to have happened is that the applicant recognized that he needs more evidence.
He wants a trial and discovery. But there is no statement of claim. There is no live cause of action on which to build a case. One cannot just come to court to have a trial with no issues as a form of discovery to support later claims…. In my view, with no pleading setting out recognizable causes of action, there is nothing left to hear in this application. None of the relief sought by the applicant remains available to him as matters of law. The application is therefore dismissed.”
With that said, the court invited costs submissions on a tight schedule, restricting the submissions to no longer than three pages, double-spaced, with a minimum of a 12-point font. The court also requested a Costs Outline and copies of any offers to settle they wished to rely on.
On the appointed date, each of the two main respondents, the applicant’s sister, and mother, sent three pages of submissions to the court together with a Costs Outline and a bill of costs. Also on the scheduled date, the applicant submitted 10 pages of submissions, a new two- page affidavit, with 30 additional pages of certified transcriptions of audio recordings, and a 65-page Costs Outline. A third respondent provided a “svelte” Costs Outline of 32 pages, causing JusticeMyers to make a “tongue-in-cheek” award, “Oxymoron of the Year”, to applicant’s counsel and a runner-up “Honourable Mention” to counsel who submitted the 32-page Outline.
Each of the parties sought costs in a similar amount, approximately $147,000. Justice Myers noted that he was inclined to send the applicant’s material back to him, unread, in view of him ignoring the format directed, however, because each party identified nearly identical costs, he chose to make his decision, given that there were no surprises that might negatively affect access to justice. The only remaining issue was whether costs ought to follow the cause, whether anyone was entitled to costs on an enhanced basis, and whether any of the costs claimed were inadmissible or unreasonable.
The applicant’s sister asserted that her brother’s applications were abusive, that he was obsessed with his cause, and that he changed his position the evening before the hearing.
The applicant insisted that he was altruistically driven to protect his elderly parents from his sister and that he was forced to defend against his siblings’ claims that he had misappropriated a large sum of money. In his affidavit the applicant swore that he was “astounded” by the exorbitant costs bill of the opposing parties, while the court noted that his “surprise” was unfounded, as the parties all engaged in the same litigation and the applicant’s costs matched theirs.
While the applicant fought tooth and nail, the court found that the respondents also “gave as good as they got”, taking aggressive positions and pushing the applicant’s buttons. The applicant was ordered to pay the costs of his mother and sister, on a partial indemnity basis, each in the amount of $100,000.
**This article was first published in LAW360, a publication of LexisNexis Canada.