Bizon Estate, 2012 ABQB 605

Court of Queen ’ s Bench of Alberta Citation: Bizon Estate, 2012 ABQB 605 Date: 20121009 Docket: ES03 133355, 1203 04153 Registry: Edmonton Court File Number ES03 133355 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial District Edmonton Estate Name Julian Aloisius Bizon, also known as Julian Bizon, also known as Julian A. Bizon, also known as Julian Alosius Bizon Applicant Emil Bizon Respondents Victoria Bizon and Teresa O’Donnell _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice D.C.

Read _______________________________________________________ [ 1 ] Julian Bizon died November 25, 2010 leaving a will in which he named his brother Emil Bizon and his sister Victoria Bizon as joint executors. The will was probated by grant of probate dated March 3, 2011. [ 2 ] Julian Bizon ’ s will made certain specific bequests and directed that the residue of the estate be divided among Julian Bizon ’ s sisters, surviving brothers and two sisters-in-law, the wives of two of Julian Bizon ’ s brothers who had predeceased him.

A complicating factor was that one of his sisters died on the same day as did Julian Bizon. The will contained a provision that a beneficiary had to survive for 20 days after the death of Julian Bizon in order to benefit from the estate and, therefore, by the terms of the will, the

deceased sister ’ s interest was to be divided among her 9 surviving children. In all, there were 21 beneficiaries named in the application for probate. [ 3 ] Even before probate issued and certainly since, the co-executors have had difficulties cooperating with one another. Emil Bizon insists that his sister Victoria has done nothing to forward the administration of the estate and has, instead, actively obstructed this process. Victoria Bizon insists that her brother Emil has excluded her from the estate administration and attempted to remove her as an executor.

The remaining members of the family are divided, perhaps as a consequence of the difficulties between the executors and perhaps also for other reasons. The majority of the beneficiaries have firmly supported Emil Bizon in the actions he has taken. A minority have supported Victoria Bizon in her requests for information and her resistance to actions taken by Emil Bizon. [ 4 ] Various lawyers have acted for the estate but the estate had not had counsel for a number of months. Since the estate ceased having legal representation, Emil Bizon has acted personally on behalf of the estate.

Victoria Bizon has been represented since early in the administration process by lawyer, Robert Speidel. [ 5 ] Emil Bizon has made five court applications on behalf of the estate. The first, made on December 6, 2011 before Ross, J was to remove Victoria Bizon as co-executor. A similar application was made before Ouellette, J on February 6, 2012. Both were dismissed. On April 2, 2012, Emil Bizon applied before Crighton, J to have Victoria Bizon found in breach of trust. This application was also dismissed.

On June 18, 2012, Emil Bizon brought a further application before Ross, J to require the estate to pay interest on several accounts submitted for reimbursement by the estate. This application was dismissed as well. In addition, Emil Bizon appeared before the taxing officer on May 31, 2012 to tax the accounts of Victoria Bizon ’ s counsel. [ 6 ] This costs decision arises in the context of an application for advice and directions and for formal passing of the estate ’ s accounts brought by Emil Bizon. Victoria Bizon, represented by Mr.

Speidel, brought a cross application for an interim distribution of the estate and to obtain certain information before the accounts were passed. Teresa O ’ Donnell, one of the beneficiaries, also appeared, represented by counsel. Many of the remaining beneficiaries were present at the hearing as well, but took no

part in it and were not separately represented. In oral reasons given on the date of the hearing, I required Emil Bizon to provide certain information before the accounts could be passed and ordered an interim distribution. I also made an order respecting costs of that hearing. Ross, J ’ s decision in December of 2011 included an order for payment of legal fees then payable. [ 7 ] I reserved my decision on costs payable in respect to Victoria Bizon ’ s representation by Mr.

Speidel since the December 2011 application and until the application before me. [ 8 ] I permitted Emil Bizon and counsel for both Victoria Bizon and Teresa O ’ Donnell to make written representations respecting costs and both Emil Bizon and counsel for Victoria Bizon did so. In addition, I received written submissions from Roman Bizon, Mitchell Bizon, Anthony Kanarek, Bernice Chamzuk, and Barbara Lupul, all of whom are beneficiaries under the terms of the will. Issues: [ 9 ] The parties raise two issues respecting these costs: Should Victoria Bizon be entitled to payment of her legal costs?

If so, should they be paid by the estate or by Emil Bizon personally? Positions of the Parties: [ 10 ] It is Victoria Bizon ’ s position that her solicitor-client costs in the total amount of $23,514.93 should be paid personally by Emil Bizon. Ms. O ’ Donnell supported this position at the hearing. It is Emil Bizon ’ s position that Victoria Bizon should be responsible for her own costs and that neither he personally nor the estate should be responsible for these costs. His position was supported by each of the five beneficiaries who provided written argument.

Discussion and Decision: [ 11 ] Costs are almost entirely at the discretion of the court, but that discretion must be exercised judicially: Babchuk v. Kutz , 2007 ABQB 88 , at para 5 . [ 12 ] The general rule in estate litigation is that the unsuccessful party should pay the costs of the successful party unless the testator or the residuary beneficiaries were the cause of the litigation: Mark Orkin, The Law of Costs, 2 nd ed, looseleaf (Aurora: Canada Law Book, 2009) vol 1 at § 219.3. Estate litigation is no longer treated as an exception to the basic rule that costs follow the event: Petrowski v.

Petrowski Estate , 2009 ABQB 753 , at paras 76-78 . [ 13 ] Here, neither of the exceptions applies. It could not be said that the litigation was caused by the testator. Nothing in his will was unclear or difficult to put into effect. The testator was a farmer. He left a farm with grain and hay to be prepared for sale and sold and machinery, implements and personal effects, which had to be sorted and sold. In addition, some of the machinery had to be repaired before it was saleable. All of this work was completed, most by Emil Bizon and other family members.

However, the numerous court applications had little or nothing to do with this necessary work except peripherally in that the two executors fought over who was to control having this work done and how and to whom payment was to be made for the work. Nor does the second exception apply. This litigation did not result from any act by any of the residuary beneficiaries. [ 14 ] One of the applications before me was brought by Emil Bizon ostensibly as an application for advice and directions.

However, I concluded that in substance it was a further attempt to have Victoria Bizon removed as an executor and otherwise to complain that she had actively obstructed the proper administration of the estate. Emil Bizon had made similar complaints before, Ross, J, Ouellette, J, Crighton, J and before the taxing officer. [ 15 ] From my review of the court file and the various applications and orders made, Victoria Bizon has been almost entirely successful and Emil Bizon has been almost entirely unsuccessful in these various applications.

Furthermore, in the case before me, Emil Bizon again raised claims of bad faith, deviousness and lying by Victoria Bizon and of professional misconduct, including false statements to the court by her counsel. There was little evidence to substantiate these claims and, as I noted in my reasons, all of these allegations had been before this court in previous applications made by Emil Bizon.

All of these previous applications were dismissed. [ 16 ] The law traditionally imposes stricter costs where allegations of misconduct are made and fail, particularly when little evidence of weight is adduced to support them: McCullough Estate v. Ayer , 1998 ABCA 38 , at para 29 . [ 17 ] In my view, none of the applications made by Emil Bizon, with the exception of the December 2011 application before Ross, J and the application for probate was necessary or helpful in the administration of the estate. Indeed, they were duplicative and were found to be without merit by each of the judges who heard them.

They seem have been attempts of various sorts by Emil Bizon, ostensibly acting on behalf of the estate, to have his co-executor removed or censured. They were brought against Victoria Bizon as co- executor and not in her personal capacity. She had no choice but to respond to these applications and did so. She was entitled to be and was represented by counsel throughout. [ 18 ] Solicitor-client costs should only be resorted to where the facts so warrant: Petrowski at para 14 . [ 19 ] In my view, this is a clear case for an award of solicitor-client costs.

Emil Bizon says he found Victoria Bizon to be difficult and obstructive. It was his view that he and two of his brothers had done all of the work and he was incensed that Victoria Bizon questioned what had been done and how much had been realized. It is clear that these men did do the lion ’ s share of the work of repairing and selling the machinery and preparing the crops for sale and selling them. Clearly, as well, they did the work of readying the personal assets for auction and selling them as well as preparing the farm land for sale and selling it.

Nonetheless, as a co-executor, Victoria Bizon could not simply blindly follow with what her brothers decided and did. She asked for information. She questioned decisions that Emil Bizon made unilaterally. As one of the executors named by the testator, it was her right and her obligation to ask for information and to question decisions. Even if Emil Bizon considered her requests unreasonable and her point of view wrong-headed, he was one of two co-executors, not the sole executor. He had an obligation to try to resolve these issues by explanation and discussion.

However, instead of providing the information Victoria Bizon requested and considering her input, judging by the contents of his many affidavits, Emil Bizon chose instead to criticize, denigrate and try to bully his sister. He actively sought to remove her as co-executor.

[ 20 ] This fight between the executors seems to have been personal and did nothing to forward the administration of the estate. Instead, Emil Bizon ’ s actions exacerbated the tensions between the co-executors and prolonged the administration of the estate. It may be, as Emil Bizon suggested, that Victoria Bizon did second guess decisions that were reasonable and some of her questions may have been answered before. Nonetheless, as co-executor, Victoria Bizon had to be satisfied that the decisions taken were in the best interests of the estate. She was not.

Faced with Emil Bizon ’ s aggressive opposition to her requests for information and explanations, and his active attempts to have her removed as co-executor, in my view, Victoria Bizon had little choice but to seek legal counsel. She would not have been put to this expense but for the fact she was named co-executor along with her brother and but for the fact that her brother would not provide her with what she required in order to be satisfied she had fulfilled her obligation to the estate. [ 21 ] Victoria Bizon should not be required personally to pay these costs.

They were incurred in her capacity as co-executor and not in her personal capacity and they did not result from applications initiated by her but, instead, from applications initiated against her. She was almost entirely successful. Unfounded allegations of misconduct, deceit and bad faith were made against her.

In the circumstances, payment of her costs on a solicitor-client basis is appropriate. [ 22 ] By Surrogate Rule 64(1)(h), the court has the authority to order that costs be paid from the estate or by any person who is a party to the application. [ 23 ] In my view, the costs should be paid by Emil Bizon personally and not by the estate. Most of the applications made by Emil Bizon did not benefit the estate or move along its administration. Some were, in substance, duplicates of earlier applications, already dismissed and relied upon the same allegations.

I note, for example, that the application before Ouellette, J in February, 2012 was essentially the same application made before Ross, J in December, 2011. While Ross, J did permit Emil Bizon to renew this application, it was only if Victoria Bizon “ does not respond to future expenses of the estate ” . The application ultimately heard by Ouellette, J in February, 2012, was filed only two weeks after the hearing before Ross, J and there was no evidence of any failure by Victoria Bizon to respond to “ future expenses of the estate ” .

Indeed, it appears that the same evidence that was before Ross, J was put before Ouellette, J. Another application seemed, frankly, bizarre and an abuse of process. The application before Crighton, J heard in April, 2012, was filed only three weeks after Ouellette, J had dismissed the application before him. In it, Emil Bizon alleged that Victoria Bizon was in breach of trust because she had been instrumental in ensuring that the testator ’ s body had been buried rather than cremated. The testator ’ s will, itself, specified that he wished to be buried.

However, Emil Bizon believed that his brother had given other oral instructions before his death. Before Crighton, J, Emil Bizon sought an order that his brother ’ s body be exhumed so that it could be cremated. Not surprisingly, Crighton, J dismissed this application. [ 24 ] These applications made by Emil Bizon did not benefit the estate and simply delayed distribution.

They seem to have been either an attempt to settle personal scores with his sister, the co-executor or an effort to obtain the removal of his sister as co-executor so that he could administer the estate himself, contrary to the express intention of the testator. There is no reason that the beneficiaries should have to pay the costs incurred as a result. [ 25 ] Emil Bizon is liable to pay these personally and I direct that they be deducted from his portion of the estate. Heard on the 31 st day of August, 2012. Dated at the City of Edmonton, Alberta this 9 th day of October, 2012.

D.C. Read J.C.Q.B.A. Appearances: Emil Bizon - Unrepresented Applicant R.A. Speidel Robert A. Speidel Professional Corporation for the Respondent Victoria Bizon J.J. Kowalchuk Field LLP for the Respondent Teresa O ’ Donnell