



COURT OF APPEAL FOR ONTARIO

CITATION:
Bayford v.
    Boese, 2021 ONCA 533

DATE: 20210722

DOCKET: C67599

Doherty,
    Nordheimer and Harvison Young JJ.A.

BETWEEN

Brenda Bayford

Plaintiff (Respondent)

and

Brian Boese
, Kaitlyn Boese, Alexander Boese,

Erin McTeer and Michelle McTeer

Defendants (Appellant)

Earl A. Cherniak, Q.C., Ian M.
    Hull and Doreen Lok Yin So, for the appellant

Taayo Simmonds, for the
    respondent

Heard: in writing

On appeal
    from the judgment of Justice Sylvia Corthorn of the Superior Court of Justice,
    dated October 1, 2019.

COSTS ENDORSEMENT

[1]

On June 22, 2021, we released our decision in
    which we allowed the appeal in this matter and dismissed the respondents
    action. We invited written submissions regarding the costs of the appeal. The
    parties have agreed that the appellant should have his costs of the proceeding
    below and that those costs should be referred to the trial judge for assessment.

[2]

We have now received and reviewed the written
    submissions of the parties. The appellant seeks his costs of the appeal on a
    full indemnity basis in the amount of $113,500. He also seeks an order that, to
    the extent that the respondent is unable to satisfy the order for payment of
    costs of the trial and appeal, the appellant be entitled to recover the balance
    of the costs assessed from the Estate of Brian Boese.

[3]

The basis for the appellants request for costs
    on a full indemnity basis arises from the fact that the case put forward by the
    respondent at trial, and accepted by the trial judge, was that the Will in
    question, signed by the testator, was purportedly witnessed by two individuals.
    As found by this court, that was not the true state of affairs. In fact, the
    two individuals had signed as witnesses after the testator had passed away. The
    appellant says, in essence, that the respondent attempted to perpetrate a fraud
    upon the court.

[4]

We accept that a finding of fraud, or attempted
    fraud, may justify an award of costs on an elevated scale. Such a finding would
    be subsumed in the principle that costs on a substantial indemnity basis may be
    awarded "where there has been reprehensible, scandalous or outrageous
    conduct on the part of one of the parties":
Young v. Young
, [1993]
    4 S.C.R. 3, at p. 134;
Mars Canada Inc. v. Bemco Cash & Carry Inc.,
2018 ONCA 239, 140 O.R. (3d) 81, at para. 43.

[5]

On that point, however, we would reiterate the
    note of caution expressed in
Net Connect Installation Inc. v. Mobile Zone
    Inc.,
2017 ONCA 766, 140 O.R. (3d) 77, at para. 8, that there is a
    significant and important distinction between full indemnity costs and
    substantial indemnity costs. This court added:

Substantial indemnity costs is the elevated
    scale of costs normally resorted to when the court wishes to express its
    disapproval of the conduct of a party to the litigation. It follows that
    conduct worthy of sanction would have to be especially egregious to justify the
    highest scale of full indemnity costs.

[6]

This principle, though, will normally apply to
    the trial proceedings, not to the appeal proceedings. There was no conduct by
    either party on the appeal that would fall within the above principle. Any
    finding regarding the conduct of the respondent, and its proper effect on costs,
    is thus a matter for the trial judge to consider when she assesses the costs of
    the proceedings below.

[7]

That said, there is nonetheless an impact on the
    appeal proceedings from the nature of the evidence and the findings of the
    trial judge. Because the trial judge accepted the version of events advanced by
    the respondent, the appellants task on appeal was an onerous one. He was
    required to establish that the trial judge had made palpable and overriding
    errors of fact, including accepting the respondents, and the attesting
    witnesses, evidence. The significant task facing the appellant is a factor to
    consider in determining a reasonable amount for the costs of the appeal.

[8]

We also accept that, to the extent that the
    costs of the appeal, or of the trial, may not be satisfied by the respondent,
    the appellant ought to be able to recover those costs from the Estate. This
    litigation was, at least in part, caused by the testators failure to complete
    his intended new Will as directed by his lawyer. Assuming that the testator
    intended to proceed as outlined in the new Will, his failure to have that Will
    fully and properly executed led to this litigation. The blended costs award,
    in which a portion of costs is payable by the losing party and the balance is
    payable out of the estate, is applicable in this case:
Sawdon Estate v.
    Watch Tower Bible and Tract Society of Canada
, 2014 ONCA 101, 119 O.R. (3d)
    81, at para. 99. This is also a fair result since the actions of the appellant
    have benefitted the other beneficiaries of the Estate of Bruce Boese.

[9]

In the result, we award the appellant the costs
    of the appeal fixed at $50,000, inclusive of disbursements and HST. The
    appellant is also awarded his costs of the trial. Those costs are referred to
    the trial judge for assessment. To the extent that the costs of the appeal, or
    of the trial, are not satisfied by the respondent, the appellant may recover
    those costs from the Estate of Bruce Boese.

Doherty J.A.

I.V.B. Nordheimer J.A.

A. Harvison Young J.A.


