Anderson Estate, 2012 ABQB 517

Court of Queen ’ s Bench of Alberta Citation: Anderson Estate, 2012 ABQB 517 Date: 20120814 Docket: ES01 098508 Registry: Calgary Court File Number ES01 098508 Court Court of Queen ’ s Bench of Alberta (Surrogate Matter) Judicial District Calgary Estate Name Harold Jackson Anderson Applicants (Executors) Sally Chabros, John Chabros and Valerie Wilson Respondent (Residuary Beneficiary) Norman Anderson Respondent (Residuary Beneficiary) Robert Van Haaren _______________________________________________________ Memorandum of Decision on Costs of the Honourable Mr. Justice P.M.

Clark _______________________________________________________ I. Introduction [ 1 ] On December 19, 2011, I released my decision in the matter of the estate of the late Harold Jackson Anderson. That decision (the “Compensation Decision”) pertained to the appropriate compensation for the deceased’s executors and to the ownership of a bank account held jointly in the names of the deceased and the executors.

The parties to that matter were the deceased’s executors, Sally Chabros, John Chabros and Valerie Wilson (collectively, the “Executors”) and the beneficiaries of the estate of the deceased, Norman Anderson and Robert Van Haaren. Mr. Van Haaren took only a limited

part in the proceedings. The parties now seek a decision in respect of the costs incurred in this matter. The facts of this matter were thoroughly canvassed in the Compensation Decision and I will not restate them here. Terms that I defined in the Compensation Decision will be used in this decision as well. II. Law

II. Law [2] It is trite law that costs are in the discretion of the Court. That discretion, however, must be exercised judicially. Therefore, itwill be useful to set out some of the guiding principles to which I must have regard in determining the appropriate costs disposition. [3] The first principle is that well-known to all litigators, which is that costs ordinarily follow the event. That is to say, thesuccessful party usually gets its costs on a party-party basis. An award of costs on an indemnity basis is more unusual.

Where such anaward is sought, reference is usually had to the decision of Hutchinson J. in Jackson v. Trimac Industries Ltd. (1993) (AB KB), 8 Alta LR (3d) 403 (QB), varied on other grounds (1994) 1994 ABCA 199 , 20 Alta LR (3d) 117 (CA).

At para. 28of that decision, Hutchinson J. stated that “In order for costs to be awarded on an indemnity basis or even on a solicitor-client basis, asopposed to a party-party basis, the court must conclude that the case fits within the parameters of a rare and exceptional or unusual case.”He then laid out various factors to be considered in determining what constitutes such an exceptional case. [4] Similarly, factors for the Court to consider in making a costs award are set out in the Rules of Court.

Rule 10.33(1) providesas follows: 10.33(1) In making a costs award, the Court may consider all or any of the following: (

a) the result of the action and the degree of success of each party; (

b) the amount claimed and the amount recovered; (

c) the importance of the issues; (

d) the complexity of the action; (

e) the apportionment of liability; (

f) the conduct of a party that tended to shorten the action; (

g) any other matter related to the question of reasonable and proper costs that the Court considers appropriate. [5] Additional factors are found in Rule 10.33(2): 10.33(2) In deciding whether to impose, deny or vary an amount in a costs award, the Court may consider all or any of the following: (

a) the conduct of a party that was unnecessary or that unnecessarily lengthened or delayed the action or any stage or step of theaction; (

b) a party’s denial of or refusal to admit anything that should have been admitted; (

c) whether a party started separate actions for claims that should have been filed in one action or whether a party unnecessarilyseparated that party’s defence from that of another party; (

d) whether any application, proceeding or step in an action was unnecessary, improper or a mistake; (

e) an irregularity in a commencement document, pleading, affidavit, notice, prescribed form or document; (

f) a contravention of or non-compliance with these rules or an order; (

g) whether a party has engaged in misconduct. [6] These are the rules which govern in, for lack of better term, “ordinary” civil litigation. However, both parties pointed out thatcosts are treated differently in estate litigation. The Executors referred to the “historical” and “modern” approaches to costs in estatelitigation.

[7] Historically, it was common practice in estate matters for courts to award costs of all parties out of the estate. This approach,however, has been out of favour for several years. As noted by Graesser J. of this Court in Re Foote Estate, 2010 ABQB 197 at para. 16,the “modern” approach to costs in estate litigation “requires careful scrutiny of the litigation to restrict unwarranted litigation and protectestates from being depleted by such litigation.” In more recent years, the courts have recognized that awards of costs operate to thedetriment of estate beneficiaries. See, inter alia, Babchuk v.

Kutz, 2007 ABQB 88 and my own reasons in Johnson v. Beers, 1999 ABQB723, 252 AR 187. Thus, the general approach now in estate litigation is that costs follow the event unless the challenge to the will wasreasonable or an exception can be justified on public policy grounds. [8] Of course, this case did not concern a challenge to the validity of the Will or proceedings to determine its properconstruction.

Rather, the points at issue are the proper compensation payable to the Executors for their administration of the Estate and,as a related matter, the Executors’ right to be indemnified for expenses reasonably and properly incurred in the course of administration.The Executors rely upon this statement from Jennifer J. Jenkins, Compensation & Duties of Estate Trustees, Guardians & Attorneys(Toronto: Canada Law Book, 2011) at para. 22:20.20: It should be appreciated that any discussion contrasting the traditional approach to costs with the developing mindset is too simple ananalysis.

The issue of costs has its own particular slant, depending on the type of litigation, which hinges primarily on the role of theestate trustee. For example, a contested passing of accounts is considered to be a significant part of the administration of an estate.

Thusan estate trustee is entitled to take an adversarial position in defence of his or her administration and claim for compensation and,generally speaking, the starting point is that the estate trustee and the beneficiaries are awarded costs as a legitimate expense of theestate. [9] The Executors also referred to the following comments from Donald J. (as he then was) in Re Kanee Estate (1991) 41 ETR263 (BCSC) at paras. 17, 23, 24 and 26: There is much force in the argument advanced by Mr.

Wilson that when remuneration is the only issue, the executors are acting in theirown self-interest and not for the benefit of the estate and, therefore, they and any contending parties should be treated as ordinarylitigants as far as costs are concerned. He endeavours to support this proposition by a decision of the Saskatchewan Surrogate Court inRe Preboy Estate (1989), (SK SU), 72 Sask. R. 33 (Surr. Ct.), aff’d (1989), (SK CA), 74 Sask. R.223 (C.A.), where at p. 43 [72 Sask.

R.] McLellan J. said: There can be no justification for the solicitors charging the beneficiaries a fee to research the law to find out what they and the executorsare entitled to charge the estate. ... The litigation model does not, in my opinion, fit the circumstances of this case. Executors do not step outside the estate to deal with thequestion of remuneration; the subject is customarily dealt with as part of the passing-of-accounts process. This is so because of theintimate connection it has with the estate. I cannot agree with Re Preboy, supra, if it purports to lay down a statement of generalprinciple.

The Court in that case did not elaborate any reasons for the statement quoted above. It is inapplicable to the case at Barbecause, as the Master rightly held, it is inappropriate to set up an adversity in interest between the estate and the executors in thesettlement of remuneration. Subject to considerations of reasonableness and honesty, the question of costs should be dealt with in the same way for remuneration asfor the other aspects in the passing of accounts. Executors are entitled to be paid for their work. ...

The questioning of remuneration should not be considered in any way analogous to such truly litigious matters as claims of fraud orbreach of fiduciary duty. In most cases, it will be reasonable for executors to take legal advice on remuneration and retain counsel for thepassing of accounts.

Since the estate owes it to the executors that they be properly remunerated, the executors, subject to just exceptions,should be fully indemnified for their costs incidental to realizing that right. [10] The Executors point out that the reasoning in Kanee was accepted by the Court in Re Wattersworth Estate 1995 CarswellOnt2528 (Ont Ct J (Gen Div) at para. 38:

Notwithstanding the authority of Widdifield on Executor ’s Accounts , I cannot accept as truly reflective of the law that the time spent by an estate solicitor responding to executor’s questions concerning compensation allowed by law to them is not an allowable estate expense. [p.115-5th Edition (1967)] It is clearly in the estate’s best interests that legitimate compensation be paid (certainly no more than what would be allowed in normal circumstances).

I also happen to agree with the rationale followed by the presiding judge in [ Kanee ]... [ 11 ] It is not clear to me, however, that the approach in Kanee has been universally accepted. Both Kanee and Preboy have been cited in subsequent years, though largely without much analysis. [ 12 ] Moreover, as Mr.

Anderson points out, Donald J. also stated in Kanee at para. 27 that “There will be cases where the executor’s claim is outrageous or tainted by serious misconduct, and the discretion as to costs should be exercised differently.” Further, while the disagreement between Kanee and Preboy is noted, the following statement nevertheless appears in Carmen S.

Theriault, ed., Widdifield on Executors and Trustees, 6 th ed. , loose-leaf (consulted on 3 July 2012) (Toronto: Thomson Canada Limited) ch. 4 at 4-21: Advice to an executor as to his right to compensation is for the personal benefit of the executor, and fees incurred to obtain the advice should not be charged against the estate. [ 13 ] Therefore, I do not think it can be said with certainty that executors are entitled to payment from the estate of legal fees incurred in respect of the determination of their appropriate compensation.

Rather, I think the matter falls to be determined in accordance with the general rule that executors are entitled to be indemnified from the estate for expenses, including legal fees, reasonably and properly incurred by them in the course of their administration of that estate. I stress the words “reasonably and properly” because of the unique nature of the relationship between estate solicitors, executors and beneficiaries. In this respect, this comment from Preboy is apt: The solicitor is the solicitor for the executor, not the estate.

Fees that he may charge the executor are only recoverable by the executor from the estate if it is shown that they are necessary and proper charges against the estate. [ 14 ] Similarly, the following statement appears in Widdifield at p. 4-8.3: Absent prior court approval or consent of all the beneficiaries, paying litigation accounts incurred in defending an action brought by one of the beneficiaries is not permitted. The law firm took the position that the estate was the client. The estate is not able to hire a lawyer.

Until legal accounts are approved by either the court or the beneficiaries, the legal accounts are the sole responsibility of the estate trustee. The estate trustee had to reimburse the estate for the accounts that were paid, plus interest: Coppel v. Coppel Estate

(2001) CarswellOnt 4660 (Ont.S.C.J.) [ 15 ] It is clear, then, that executors are not entitled to assume that their legal fees will be reimbursed by the estate, regardless of circumstances or quantum. If an executor wishes to seek out “gold-plated” legal representation and/or to retain counsel to do work not necessarily required by the estate, he may do so, but he may expect to be indemnified only for the portion of that cost reasonably required for the administration of the estate. [ 16 ] The costs sought by the parties to this litigation must be assessed against these principles. III.

Analysis [ 17 ] The Executors, on the one side, and Mr. Anderson, on the other, each seek costs either from the estate or from the other party. I will begin by considering the Executors’ costs. A. The Executors ’ Costs

[ 18 ] Context is critical here. In civil litigation, as noted above, the starting point is that costs follow the event and the successful party receives party-party costs from the unsuccessful party. In estate litigation, there must be a determination of the extent to which the litigation was necessary in the sense of having been “caused” by some default of the testator and having been brought and conducted reasonably by the parties.

This matter, however, is an assessment of executors’ expenses and the starting point is that executors are entitled to be indemnified for expenses reasonably and properly incurred in the administration of the estate. The extent of success of either party and the factors enumerated in the Rules of Court are not, strictly speaking, the correct focus of this inquiry. Nevertheless, as the parties, particularly the Executors, structured their arguments according to some of the factors in the Rules of Court , I will address those arguments in arriving at my decision.

(1) Degree of Success [ 19 ] Both parties claim to have been successful in this matter; neither is entirely correct. The Executors claim to have been “substantially successful” in that they were awarded $810,000 in compensation while Mr. Anderson’s position was that they should have been awarded no compensation. [ 20 ] I am satisfied, however, that the Executors’ characterization of Mr. Anderson’s position is overstated. The Executors base this argument on two comments made by Mr. Anderson during examination for discovery. However, as his counsel rightly pointed out, Mr.

Anderson did not pursue that position in his Notice of Objection or briefs. Rather, Mr. Anderson’s position in the proceedings before me was limited to his objection to the $2.9 million compensation claimed by the Executors. [ 21 ] Viewed realistically, the possibility that the Executors would be refused any compensation was non-existent. Therefore, to assert that the Executors were “substantially successful” on the grounds that they were awarded something other than zero offers a distorted view of the proceedings. [ 22 ] The Executors further argue on this point that the only offer of settlement made by Mr.

Anderson was for $350,000 and came late in the proceedings. There are two responses to this argument. The first is that the burden is on the Executors to justify the compensation they seek, either to the beneficiaries or to the Court. The second is that the only offer of settlement made by the Executors was for $2 million, an amount still greatly in excess of what they were awarded. What would have happened had the Executors made a reasonable offer with respect to their compensation cannot be known.

What is known is that the Executors sought an amount of compensation that was out of all proportion and were not successful in obtaining it. [ 23 ] The Executors point out that there have been cases in which executors were awarded significantly less compensation than they had sought, but were still awarded costs on an indemnity basis. While that is certainly so, it does not derogate from the fact that executors are entitled to be fully indemnified only for costs reasonably and properly incurred in the course of estate administration.

While there may well be cases where executors receive substantially less compensation than they seek but are nevertheless justified in incurring legal fees in the pursuit, it is not clear to me that this is such a case. [ 24 ] In addition, the Executors assert that Mr. Anderson sought damages against them and no such damages were awarded. This is true, but it is also true that some of the matters alleged by Mr.

Anderson, including delays in making payments from the trust and failure to provide timely and complete information, were demonstrated by the evidence and were taken into account in my determination of the appropriate compensation amount. Therefore, this does not demonstrate substantial success by the Executors.

(2) The Importance of the Issues [ 25 ] The Executors make reference in their brief to the importance to an estate of the passing of accounts and the determination and settlement of an executor’s compensation. Certainly, these are matters of importance in any estate. But it does not follow that executors are entitled to full indemnity for the costs incurred, regardless of the circumstances. Once again, I return to the guiding principle that such costs are to be reimbursed only if they are reasonably and properly incurred.

In my view, the disproportionate compensation sought by the Executors and the polarized position they adopted resulted in protracted litigation that should not have been necessary.

(3) Mr. Anderson ’s Conduct

[ 26 ] The Executors assert that Mr. Anderson’s conduct lengthened the proceedings, resulting in increased costs for which they should be indemnified. Specifically, they argue that Mr. Anderson refused to admit that the Executors obtained fair market value in selling the Farm for $23 million, necessitating expert evidence and additional argument. They also argue that Mr. Anderson made “scurrilous allegations of misconduct and imprudence” and that responding to these allegations required considerable time both before and at trial. [ 27 ] I agree with counsel for Mr.

Anderson that the focus on the selling price of the Farm was not for the purpose of asserting that fair value was not obtained. Rather, the focus was on whether the substantial value obtained was directly attributable to the efforts of the Executors such that the compensation they sought was justified. Further, as I noted in the Compensation Decision, Mr. Anderson used the $23 million figure in arriving at his suggested compensation for the Executors. [ 28 ] With respect to the alleged scurrilous accusations, I would echo my comments above as to the matters alleged by Mr. Anderson.

Given their failures to provide information and to make timely payments from the trust, the Executors can be said to be the authors of their own misfortune in this regard. I am not satisfied that indemnification for their legal costs is reasonably and properly justified on this basis.

(4) The ATB Account [ 29 ] The Executors acknowledge that they were not successful in respect of their claim to the ATB Account. However, they take the position that the ATB Account was “a discrete, uncomplicated issue which required little trial or preparation time and which overall had little effect on the course of the trial”. They also assert that the Court “did not accept [Mr.

Anderson’s] allegations that the Executors were guilty of any undue influence of fraud, but rather simply found that there was not enough evidence to rebut the presumption of resulting trust.” [ 30 ] I find the Executors’ position on this point disingenuous. They make much of their “success” in obtaining compensation, but ask that this Court simply disregard an issue upon which they were wholly unsuccessful. In the same vein, they ask this Court to rely upon unfounded allegations by Mr.

Anderson as a basis for awarding them costs, but argue that their own unfounded claim should be treated as irrelevant for costs purposes. Moreover, it should have been clear to the Executors that they would be unsuccessful on this issue as the Supreme Court of Canada’s judgments in Pecore v. Pecore , 2007 SCC 17 , 1 SCR 795 and Madsen Estate v. Saylor , 2007 SCC 18 , 1 SCR 838 make clear that the presumption of resulting trust applies and the Executors offered very little evidence to rebut it. Nevertheless, they pursued the matter.

While it is true that I did not address undue influence or fraud in the Compensation Decision, it was not necessary to do so as the presumption of resulting trust was sufficient to resolve the issue. The Executors ought to have known that their claim to the ATB Account was tenuous and that the evidence they presented was insufficient to support it. Thus, it certainly cannot be said that the Executors’ legal fees for unjustifiably pursuing this issue were reasonably and properly incurred in their administration of the Estate.

(5) What Justice Requires [ 31 ] The Executors, relying on Jackson v. Trimac , argue that “justice can only be done in this case if the Executors are awarded costs on an indemnity basis”. [ 32 ] In my view, allowing the Executors to be fully indemnified for the legal fees they incurred in this matter would be manifestly unjust. It was neither reasonable nor proper for the Executors to claim an exorbitant amount of compensation with little justification and virtually no explanation.

In my view, this is the kind of situation contemplated in the passage quoted by Donald J. in Kanee at para. 27 where “...the Court may, in my opinion, visit the executor with costs, or deprive him of his costs, where the claim is of a monstrous character, that is, one which no reasonable man could say ought to have been put forward .” [Emphasis added.] [ 33 ] To make matters worse, it appears that the legal fees incurred by the Executors in respect of the trial in this matter were in excess of $605,000.

This is in addition to the amounts paid to counsel who acted for the Executors in respect of the administration of the Estate and to counsel who acted in respect of the passing of accounts. In fairness, counsel for the Executors acknowledged in the argument on costs that his firm’s account would have to be taxed. That, however, is not a complete answer.

[ 34 ] As I noted above, when executors engage counsel, the retainer is between the executors and the lawyers, not between the estate and the lawyers. Therefore, there are two considerations in respect of the accounts of lawyers engaged by executors. The first is whether the lawyers may claim the whole of their account against the executors. That question falls to be determined by taxation. The second is whether the executors may claim the full amount of the taxed account of the solicitors against the estate as an expense reasonably and properly incurred in the administration thereof. That is the question before me.

(6) Conclusion [ 35 ] It will be clear from the foregoing that I do not think the Executors should be fully indemnified for their legal costs, even following taxation of those accounts. Despite the Executors’ view of Mr. Anderson’s position on their compensation (a view I have found to be overstated), I do not think this matter should have had to come to Court at all had the Executors sought a more moderate amount of compensation and been more responsive to concerns raised by Mr. Anderson’s counsel.

I do not think it can be said that in pursuing protracted litigation in an unsuccessful attempt to secure an unrealistic amount of compensation, the Executors can be said to have incurred these fees reasonably and properly in the course of their administration of the Estate. Therefore, I will not permit them to be fully reimbursed from the Estate. [ 36 ] In fact, I gave serious consideration to refusing to allow the Executors any reimbursement for these fees.

I have grave concern that in pursuing this litigation, they acted not in the best interests of the Estate, but out of self-interest and, possibly, out of vindictiveness toward Mr. Anderson. Clearly, this cannot be countenanced. [ 37 ] However, on further reflection, I have decided that so harsh a stance would not be justified since, as I stated above, it cannot be known what would have been the outcome had the Executors made a more reasonable offer. It may be that proceedings in this Court still would have been required, though I would hope that they would have been far more circumscribed.

For that reason, I am prepared to allow the Executors some reimbursement from the Estate for their legal costs of this litigation. I consider the sum of $50,000 to be reasonable in the circumstances. For the avoidance of doubt, that sum is to be the total amount recoverable by the Executors from the Estate in respect of this litigation with no further allowance for GST or disbursements. B. Mr. Anderson ’s Costs [ 38 ] I now come to consider the question of Mr. Anderson’s costs in this matter. His counsel indicated that he expected his account to be something less than $200,000. Mr.

Anderson seeks to have those costs paid by the Executors personally. [ 39 ] The Executors argue that no costs should be awarded to Mr. Anderson. They assert that he was not the successful party and made no meaningful offer of settlement. They also assert that this litigation was “caused” by Mr. Anderson and that there was no misconduct on the part of the Executors. I have dealt with some of these arguments above in respect of the Executors’ claim for costs. [ 40 ] I am not prepared to award Mr. Anderson costs against the Executors personally.

While, as I noted above and in the Compensation Decision, I have some concerns about the Executors’ handling of this Estate, I do not believe that such an award is warranted in these circumstances. [ 41 ] I do, however, believe that Mr. Anderson was justified in objecting to the extravagant compensation claimed by the Executors and I think he acted properly in bringing his objection to this Court. The Executors argued that an award of costs in favour of Mr. Anderson out of the Estate would operate to the detriment of the other residuary beneficiary, Mr. Van Haaren. However, I think it relevant that, absent Mr.

Anderson’s objection, the Executors would have taken $2.9 million in compensation, an amount I have found to be grossly disproportionate to their efforts. The Executors displayed no scruples about reducing Mr. Van Haaren’s share of the Estate by half of that amount. Instead, the Executors were awarded $810,000 and were required to reimburse the Estate $162,407.74, the amount in the ATB Account. The result is a net “savings” to the Estate of $2,252,407.74, half of which benefits Mr. Van Haaren. [ 42 ] Accordingly, I am satisfied that an award of solicitor-client costs in favour of Mr.

Anderson out of the Estate is appropriate and I so order.

C. Prejudgment Interest [43] Mr. Anderson’s counsel also asked that I address the question of prejudgment interest. [44] The Judgment Interest Act, RSA 2000, c. J-1, provides as follows: 2(1) Where a person obtains a judgment for the payment of money or a judgment that money is owing, the court shall award interest inaccordance with this Part from the date the cause of action arose to the date of the judgment. ... 2(3) If it considers it just to do so having regard to changes in market interest rates, the circumstances of the case or the conduct of theaction, the court may (

a) refuse to award interest under this Part, (

b) award interest under this Part at a rate higher or lower than the rate set out in this Part, or (

c) award interest under this Part for a period other than the period provided for in this Part. [45] Interestingly, however, Rule 13.6(2)(c)(iii) seems to impose an additional requirement: 13.6(2) A pleading must state any of the following matters that are relevant: ... (

c) the remedy claimed, including ... (iii) a statement of any interest claimed, including the basis for the interest, and the method of calculating the interest... [46] There is caselaw that indicates that failure to plead prejudgment interest may disentitle a party from claiming it; see, interalia, Nathu v. Imbrook Properties Ltd., 1992 ABCA 106 , [1992] 125 AR 34 (CA) and Stoner v. Canadian Natural ResourcesLtd., (1987) (AB KB), 55 Alta LR (2d) 238 (QB). In this case, the Notice of Objection filed by Mr.

Anderson makesno mention of prejudgment interest. [47] However, I do not think prejudgment interest is appropriate in this case in any event. The purpose of prejudgment interest is tocompensate a party who has been deprived pending litigation of the use of moneys owing. As noted above, executors’ compensation isnot payable until approved by the beneficiaries or the Court.

Therefore, prejudgment interest cannot attach to such an amount becausethere is no money owing until judgment is rendered. [48] The only amount in this case to which prejudgment interest could attach is the amount that was required to be repaid to theEstate in respect of the ATB Account. However, I am not satisfied that prejudgment interest is appropriate in respect of this amount. TheExecutors took the position, presumably on the advice of their lawyer at the time, that the funds in the ATB Account were theirs.

While Ihave found otherwise, the issue was not so much moneys owing to the Estate as the proper characterization of the entitlement to thefunds. It does not appear to me that this is the type of situation prejudgment interest is intended to address. Therefore, pursuant to s.2(3)(

a) of the Judgment Interest Act, I refuse to award interest on this amount. IV. Conclusion [49] In the result, Mr. Anderson shall have his solicitor-client costs out of the Estate and the Executors are permitted to reimburse

themselves from the Estate for their legal costs only to the extent of $50,000. [ 50 ] I feel obliged in this case to make some general comments. I am concerned that a large estate file is perceived by both executors and estate lawyers as a “dripping roast”. To be sure, in any estate, there is work that must be done. But a large estate value does not justify abandoning all restraint. Both executors and estate lawyers must be judicious with respect to costs they purport to incur against an estate.

In this case, both the compensation claimed and the legal costs amassed in pursuing that compensation were out of all proportion to what should have been required and I find the absence of good judgment disquieting. It is to be hoped that the result in this case will remind those involved in future estates of the importance of prudence. Heard on the 1 st day of May, 2012. Dated at the City of Calgary, Alberta this 14 th day of August, 2012. P.M. Clark J.C.Q.B.A. Appearances: A. Webster Macdonald Jr., Q.C.*, David Tupper and Carla A.

Hunt Blake, Cassels & Graydon LLP for the Executors, Sally Chabros, John Chabros and Valerie Wilson Brian E. Devlin, Q.C. O’Brien Devlin MacLeod for the Residuary Beneficiary, Norman Anderson No-one appearing for the Residuary Beneficiary, Robert Van Haaren * Original counsel for the Executors did not take

part in the argument with respect to costs.