Schwartz Estate v. Kwinter, 2011 ABQB 587

Court of Queen ’ s Bench of Alberta Citation: Schwartz Estate v. Kwinter, 2011 ABQB 587 Date: 20110926 Docket: 0501 17525 Registry: Calgary Between: Elaine Gayle Myron, Executrix of the Estate of William Schwartz Plaintiff - and - Shelley Rae Kwinter, Alyse Schwartz, and Justice Kwinter Defendants _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice C. A. Kent _______________________________________________________ [ 1 ] This is a memorandum to deal with the application by the plaintiff on the issue of costs of the action.

The defendants advised some time ago that they were no longer challenging the validity of the will and codicil of Mr. Schwartz. I issued an order that the will and codicil were valid. The plaintiff seeks costs pursuant to Rule 90 (

h) of the Alberta Surrogate Rules , arguing that costs may be ordered where the challenge to the will was frivolous or vexatious, caused undue delay or there was no substantial basis for the challenge. [ 2 ] I established a process for that application by a memorandum dated October 8, 2008. At that time, it was contemplated that the hearing would take five days and that there may be viva voce evidence, at the discretion of the trial judge. I directed that a Notice of Motion be filed by October 16, 2008 which listed the affidavit evidence, if any, that the plaintiff was relying on. Subsequent to that

decision, there were applications and appeals that were not before me. This matter came back to me on June 28, 2011 as case management judge. I originally changed my previous direction to say that there would be no viva voce evidence and that the hearing would be set for 3 days, one for the Myron side, one for the Kwinter side and a third for Myron’s rebuttal. Counsel for Ms. Myron pointed out that he had decided not to file an affidavit of Ms. Myron but intended on calling her. He was relying on my previous direction. As a result of that information, I amended my direction to permit Ms.

Myron to give viva voce evidence. [ 3 ] On August 30, 2011, the plaintiff filed two further affidavits from Ms. Spicer and Ms. Quigley. Both affidavits deal with conversations that they had with Ms. Kwinter which are intended to show that Ms. Kwinter knew that her father would leave her nothing. Ms. Spicer described conversations in 1996 and the late 1990s. Ms. Quigley described conversations in 1996. Mr. Schwartz died in 2003. [ 4 ] Counsel for the Defendants applies to strike the affidavits and counsel for the Plaintiff seeks an order that the affidavits may be tendered. The Defendants’application is granted.

This is a costs hearing. Costs hearings, even when dealing with issues like Rule 90(h), should proceed expeditiously and efficiently. The relevance of the evidence of these two people is marginal at best. They both testify to conversations that occurred well before Mr. Schwartz died. A judge could make little use of them. I balance that consideration against the further delay that will occur if I allow the affidavits to be used, since that in turn will require cross-examination on the affidavits by the Defendants. [ 5 ] The Defendants will have one set of costs of the applications.

Heard on the 8 th day of September, 2011. Dated at the City of Calgary, Alberta this 26 th day of September, 2011. C.A. Kent J.C.Q.B.A. Appearances: Ariel Z. Breitman McCarthy Tetrault LLP for the Plaintiff Steven H. Leitl and Karl R. Seidenz Macleod Dixon LLP for the Defendants