Nelson Estate (Re), 2014 ABQB 765

Court of Queen ’ s Bench of Alberta Citation: Nelson Estate (Re), 2014 ABQB 765 Date: 20141215 Docket: ES01 114155 Registry: Calgary Court File Number ES01 114155 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial District Calgary Estate Name Nelson Plaintiff/Respondent Sheldon Nelson Defendant/Applicant Nirosha Balachandran _______________________________________________________ Memorandum of Decision on Costs of the Honourable Mr. Justice W.P.

Sullivan _______________________________________________________ Introduction [ 1 ] This is an Application by Nirosha Balachandran for costs on a full indemnity basis arising from a decision in this matter issued by me on July 30, 2014 and cited at Nelson Estate (Re) , 2014 ABQB 413 . This matter arises out of the Estate of Christian William Nelson (the Deceased”). Christian Nelson died suddenly on April 19, 2013. He was 53 years old and I found that at the time of his death, Mr. Nelson was in an adult interdependent relationship with Nirosha Balachandran. The Deceased’s brother, Sheldon Nelson (“Mr.

Nelson”), disputed that relationship.

Facts [ 2 ] As the facts are detailed in the Decision, I will only deal with matters that are of particular interest to this costs application. [ 3 ] On August 9, 2013, Mr. Nelson filed in this Court an Application for Advice and Directions. On September 4, 2013, he filed an Amended Application and a Cross-Application and on March 4, 2014, he filed a further Amended Amended Application and Cross- Application. In this final Application for Advice and Directions he asked, among other things, for the following relief: . . . 2.

Whether Sheldon Nelson is the proper party to be appointed as Personal Representative in respect of this Estate under a Grant of Administration or otherwise? 3. Whether [Ms. Balachandran] the Respondent is a spouse, and adult interdependent partner, or dependent of the Deceased for the purposes of this Estate? 4.

Whether the Court ought to strongly sanction the Respondent’s activities in this matter with an award of solicitor-client (full indemnity) costs, in order to preserve the assets of this Estate for its true and proper beneficiaries, and to express this Honourable Court’s reprobation for such serious misconduct? [ 4 ] In his Grounds for Request, Sheldon Nelson said this: 5. Sheldon Nelson is the surviving brother of the Deceased in this Estate. He has right priority to apply for a Grant, pursuant to Rule 11(2)(

f) of the Surrogate Rules . 6. There has been an Application filed on June 27, 2013, by the Respondent for a Grant of Letters of Administration. The Respondent, Nirosha Balachandran, has no right of priority over this Applicant, Sheldon Nelson, because the Respondent is not a person enumerated under the Surrogate Rules. 7. The Respondent is not and was not a spouse, adult interdependent partner, or dependent of the Deceased. 8. … 9. The Respondent has committed serious misconduct in this matter. 10.

The Respondent is, and has remained, in contempt of Court since October 30, 2013, despite repeated and very clear demands to purge same. [ 5 ] Mr. Nelson then sought the following relief: ... 11.4 Declaring that the Respondent is not a spouse, adult interdependent partner, or a dependent of the Deceased. 11.5 Declaring that the Respondent is not a beneficiary of, nor a person entitled to share in, the Deceased or the Deceased’s Estate. … 11.7 Granting indemnity for the solicitor-client (full indemnity) costs of these applications to Sheldon Nelson. [ 6 ] In support of the Application, Mr.

Nelson filed: C2 Notice to Admit Facts, filed November 5, 2013 C2 Reply to Notice to Admit Facts, filed November 25, 2013 C2 Affidavit of Krystal Panday, filed August 9, 2013 C2 Affidavit of Sheldon Nelson, filed January 21, 2014 C2 Affidavit of Nicole Nelson, filed February 26, 2014 C2 Affidavit of William Rae Nelson, filed February 26, 2014 C2 Affidavit of Patricia Mary Evelyn Shaw, filed February 26, 2014 C2 Affidavit of Perry Sanche, filed February 26, 2014. C2 Affidavit of Dwight Ewanika and Susan Reid, filed February 26, 2014 C2 Affidavit of Tarra Poirier, filed February 26, 2014 The Brief(

s) of Argument of the Applicant filed herein, and any further or other material as may be received by this Honourable Court.

[ 7 ] Mr. Nelson in his Application then went on to cite the applicable rules: the Alberta Rules of Court , Rr 1.3, 7.1, and 7.2, the Surrogate Rules , Rr 4, 10, 11, 55, 58 and 64 and the applicable statutes, the Adult Interdependent Relationships Act , SA 2002, c A-4.5 and the Judicature Act , RSA 2000, c J-2, the Wills and Succession Act , SA 2010, c W-12.2,

Part 3 and proposed that this matter be heard in Special Chambers scheduled for a two day hearing commencing May 20, 2014. [ 8 ] Prior to the filing by Mr. Nelson of the Amended Amended Application for Advice and Directions and Cross-Application, on September 4, 2013, Ms. Balachandran served a C1 Notice of Motion, and a C2 Affidavit on the following persons: Rae Nelson, the father of the Deceased Chris Nelson; Patricia Shaw, the mother of the Deceased; and Benjamin J. Kormos, Counsel for Sheldon Nelson The Notice listed Ms.

Balachandran as the beneficiary of the Estate of Christian William Nelson. [ 9 ] In the C1 Notice, the Applicant Ms. Balachandran stated that she is the adult interdependent partner of the Deceased, Christian William Nelson, that they began their exclusive conjugal relationship in 2006 and have been cohabiting continuously since 2008. [ 10 ] In Ms. Balachandran’s C2 Affidavit para 3.4 she said as follows: As the Deceased’s adult interdependent partner, the Applicant is entitled to apply for a grant of administration in priority to others.

Furthermore, the Applicant is the sole beneficiary of the Estate on an intestacy. [ 11 ] In her Affidavit filed as C2, Ms. Balachandran goes on in detail and at length to identify her relationship with the Deceased and itemizes his Estate assets requiring preservation. She also identifies that he held an RRSP account with the TD Bank with an approximate value of $500,000. She stated that she believed that she was the beneficiary of that account (in fact her belief was correct). She also identifies the details and the extent of her relationship, its interdependency and business dealings with the Deceased.

This Affidavit was sworn on August 31, 2013 and filed on September 3, 2013. [ 12 ] On October 30, 2013, Ms. Balachandran filed a Caveat in this matter stating that: Sheldon Nelson is not entitled to apply for a Grant of Administration as he does not have priority pursuant to the Surrogate Rules. None of the people in priority to Sheldon Nelson have signed Renunciations of Administration. (Caveat para 3(d)) [ 13 ] Although this litigation was relatively short, it was hotly contested and the litigation was intense. [ 14 ] Ms.

Balachandran states in her materials filed in support of her Application for costs that her legal fees are in excess of $100,000. [ 15 ] Likewise, Mr. Nelson states in his materials that his legal fees are in excess of $100,000. Position of the Applicant Ms. Balachandran [ 16 ] It is Ms. Balachandran’s position that she is the successful party, that she should have costs, as costs follow the result, and she alleges that Mr. Nelson was responsible for this litigation. She therefore seeks costs on a “full indemnity basis” for the following reasons:

a) This litigation was unfounded, fruitless and lacked any reasonable legitimacy from the outset;

b) Mr. Nelson made serious allegations of misconduct, and in fact criminal conduct, on the part of Ms. Balachandran which allegations were unsupported and made without any reasonable grounds or lawful justification or excuse;

c) Mr. Nelson’s conduct and allegations set out in his material filed in support of his application and in the Brief field by his lawyer are vindictive, malicious, malevolent, hurtful and reprehensible;

d) Mr. Nelson’s application, as a whole, was frivolous and without merit nor with lawful justification or excuse;

e) The Court must sanction such conduct by Mr. Nelson and his lawyers for necessitating unnecessary and unreasonable litigation and asserting allegations that were not only not proven but in fact were completely unsupported, false and untrue. Position of the Respondent Mr. Nelson [ 17 ] In his letter to the Court, counsel for Mr. Nelson says: The purpose of this communication is to convey our client’s position that the appropriate award of legal costs in this case is on the basis that each party (Mr. Nelson and Ms. Balachandran) should receive their solicitor-and-client (indemnity) costs paid from the Estate or,

alternatively, that each party bear his and her own costs. We submit that the circumstances of this particular case require such an award in order to properly address the originally uncertain nature of this intestate Estate and the circumstances of the Estate that required the Court’s decision, including the apparent lack of a Will, and the question of Ms. Balachandran’s role/interest in the Estate that required consideration as a result of the lack of a testamentary documentation that otherwise may have confirmed same. [ 18 ] In his brief to the Court on this costs application, counsel for Mr.

Nelson enumerates facts that he states are relevant and that should be considered by this Court: 1. Reference to the Applications in this Court and in the Manitoba Courts by Mr. Nelson; 2. Discovery by Mr. Nelson that Ms. Balachandran had applied Ex-Parte in Alberta for Administration; 3. The competing Application of Mr. Nelson for Administration in Alberta; 4. Mr. Nelson’s extensive review of this Estate; 5. Identification by Mr. Nelson of numerous conflicting pieces of evidence in his view with respect to will or estate planning on the part of his Deceased brother; 6.

The bona fide attempts he alleges to settle the matter; 7. Disclosure he alleges by Ms. Balachandran regarding her relationship with the Deceased; 8. The extent of the actions in Manitoba, Alberta, Arizona and Texas; 9. The extent of Mr. Nelson’s relationship with his brother Chris, although noting that he had little or no contact with his brother for the last three or four years prior to his Deceased brother’s death... [ 19 ] He also goes on to make the following statement: The Deceased Chris Nelson did indeed unfortunately cause this litigation.

And it is a result of his submissions that he says: The circumstances of this particular case, Mr. Nelson’s legal costs ought to be fully reimbursed from Chris Nelson’s Estate. The questions that arose were as a result of the lack of Chris Nelson’s available estate plan or will. The Law [ 20 ] In his comprehensive and authoritative decision on costs, Mr. Justice Graesser of this Court in Schwartz Estate v Kwinter , 2013 ABQB 147 stated at paras 111-124 : [111] The minutia of the evidence is rarely the deciding factor in a claim for costs.

Courts will normally take a bigger picture view of costs, following the basic principles that: 1. Costs follow the event; 2. Usual costs are those provided for in

Schedule C of the Rules of Court ; 3. The court has a wide discretion (to be exercised judicially) as to the awarding of costs in any matter; 4. A successful party may be denied costs, or awarded costs on a lesser scale, because of his or her conduct during the course of the litigation, or because of the magnitude of the award in comparison with the costs calculated on the usual column; 5. Costs on an elevated scale (higher column of costs or multiples of ordinary

Schedule C costs) are the exception and not the rule; and 6. An award of elevated costs to the successful party requires either that the magnitude of the award is not reflected in the columns in

Schedule C (well more than $1.5 million) or some misconduct during the litigation on the part of the unsuccessful party. [112] These are, at least in Alberta, trite principles for which I need not cite authority. These principles may change, depending on contractual arrangements between the parties, or any specific statutory or regulatory provisions dealing with costs. [113] In estate litigation, I have no doubt that the so-called "modern rule" applies, such that costs in estate litigation are now [to] be treated in a similar fashion to costs in other civil litigation.

The old starting point that the estate should bear the costs of litigation has been replaced with the principle that the parties will normally bear costs as they would in other types of civil litigation, unless the challenge to the will or the estate was reasonable, even though eventually unsuccessful.

[114] I considered the "modern rule" in Re Foote Estate , 2010 ABQB 197 , and do not think the law in Alberta has changed since I reviewed it then. [115] Reasonable challenges have been held to include situations where the testator's conduct has invited the claim, whether by making an uncertain or ambiguous will, or by disinheriting family members who have arguable dependency claims, or by making a will in suspicious circumstances.

Not all uncertainties, irregularities, ambiguities, disinheritances and suspicions will entitle the parties to get costs out of the estate, or to avoid paying costs to the estate as a consequence of unsuccessful challenges, as the threshold is a determination of "reasonableness". [116] I fail to see that there is, any longer, a public policy reason for costs to be treated differently in estate litigation than in other civil litigation.

The public has an interest in seeing that only valid wills get probated and that remains a consideration in whether to award costs against the estate (as noted by Moen J. in Petrowski v. Petrowski Estate , 2009 ABQB 753 ). I agreed with that in Foote , but do not think that principle can be used to shield claimants who make unreasonable and unsubstantiated claims against the testator, the will, or the executor. [117] As evidenced by cases such as Re Sedahely Estate , 2005 ABQB 861 , affirmed as Popke v. Bolt , 2006 ABCA 338 “reasonableness” can change during the course of litigation.

A challenge which started out as being reasonable may become unreasonable as additional facts become known. [118] Public policy may be used to assist a claimant who brings a reasonable but eventually unsuccessful challenge, or a claimant who recognizes that a reasonable challenge has become unreasonable or untenable because of disclosure or other events during the litigation. [119] As noted above, the general rules on costs and the principles described above are subject to statutory or regulatory modification.

In estate litigation, those modifications are found in Surrogate Rule 90(h), which provides that the courts have a jurisdiction to "penalize" a person who has required formal proof of the will "if it becomes clear during the proceedings" that the application was frivolous or vexatious, the person delayed the proceedings, or the person had no substantial basis for requiring court scrutiny.

I equate "substantial" with "reasonable" as a minimum equivalency, although it is certainly arguable if not grammatically correct, that “substantial” is a higher onus than “reasonable” (as in “substantial fortune” versus a “reasonable” fortune). The decided cases talk about the reasonableness of the claim so I will restrict my comments to that standard and leave the semantic arguments for another day in another case. [120] Surrogate Rule 90(

h) is undoubtedly a codification of the modern rule in Alberta, lest there be any doubt whatsoever that the modern rule now prevails over the traditional "estate pays" concept. What Surrogate Rule 90(

h) does is to supplement the ordinary cost principles. There is nothing in the Surrogate Rules to shelter a losing party from ordinary

Schedule C costs or ordinary principles. Instead, Surrogate Rule 90(

h) makes it clear that an unsuccessful claimant may be liable for penalty costs if the conditions in the rule are found to apply. [121] I do not see that the provisions of Rule 90(

h) conflict in any material way with the general principles of costs in civil litigation, but they may well start the discussion in estate cases. Indeed, passing over the threshold of frivolous or vexatious, or unreasonableness, or having caused delay, gets directly to whether penalty costs should be imposed, and in what amount. Getting over that threshold then gets to the general cases on how the court's discretion should be exercised in quantifying the costs award. [122] Many civil cases talk about "misconduct" in the litigation as a requirement for solicitor and client costs.

It is very arguable that the bar is set lower for an elevated cost award or a "penalty" award in estate litigation, if the court finds that it was not reasonable for the party requiring the formal proof to have done so in the first place. In ordinary civil litigation, parties to the dispute are generally said to be entitled to their day in court subject to being liable to pay

Schedule C costs if they are unsuccessful. It is not normally a basis to seek elevated costs that the claim was unreasonable from the get-go, or became obviously unreasonable during the course of the litigation. [123] Because of Surrogate Rule 90(h), it is necessary for me to consider not only the Defendants' conduct in the estate litigation, but also the objective reasonableness of the Defendants' positions in that litigation.

[124] Losing makes them potentially liable for

Schedule C costs; if they are found to fall within Surrogate Rule 90(h), they arepotentially liable for penalty or elevated costs. Misconduct may take those costs beyond mere elevation to indemnification in the form ofsolicitor and client costs. [21] These then set out the basic principles which will govern my decision. [22] I also note what Mr. Justice Clark of this Court said in Anderson Estate, 2012 ABQB 517 at paras 3-7: [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) provides asfollows: 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 the action; (

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 unnecessarily separated 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 that costsare treated differently in estate litigation. The Executors referred to the "historical" and "modern" approaches to costs in estate litigation. [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 ABQB 723, 252 AR 187.Thus, the general approach now in estate litigation is that costs follow the event unless the challenge to the will was reasonable or anexception can be justified on public policy grounds. [23] It is important to note that Mr. Nelson is not an executor, nor did he have Administration of this Estate. He was applying tothe Court for Advice and Directions and in a short period of time created an intense piece of litigation. Mr.

Nelson also alleges that hisbrother “caused this litigation”. [24] Justice Clark in para 18 of Anderson Estate said this: 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. [25] Let me say at this point, in my view it is not prima facie reasonable to state that the Deceased “causes” litigation by dyingwithout a will. Death in this province without a will is anticipated.

The Surrogate Rules and the Wills and Succession Act provide for thisexpectation. [26] In this case there are requests for full indemnity costs by both the successful party and the unsuccessful party. [27] In Hamilton v Open Window Bakery Ltd, 2004 SCC 9 at para 26 Arbour J wrote:: 26 In Young v. Young, (SCC), [1993] 4 S.C.R. 3, at p. 134, McLachlin J. (as she then was) for a majority of this Courtheld that solicitor-and-client costs “are generally awarded only where there has been reprehensible, scandalous or outrageous conduct onthe part of one of the parties”.

An unsuccessful attempt to prove fraud or dishonesty on a balance of probabilities does not leadinexorably to the conclusion that the unsuccessful party should be held liable for solicitor-and-client costs, since not all such attemptswill be correctly considered to amount to “reprehensible, scandalous or outrageous conduct”. However, allegations of fraud anddishonesty are serious and potentially very damaging to those accused of deception.

When, as here, a party makes such allegationsunsuccessfully at trial and with access to information sufficient to conclude that the other party was merely negligent and neitherdishonest nor fraudulent (as Wilkins J. found), costs on a solicitor-and-client scale are appropriate: see, generally, M. M. Orkin, The Lawof Costs (2nd ed. (loose-leaf)), at para. 219. [28] Madam Justice Shelley of this Court stated in Dove Homes

(1999) Ltd. v Fountain Creek Estates Ltd., 2012 ABQB 497 atpara 32: [32] However, the courts have recognized that, even when it is difficult to find grounds for ordering solicitor-client costs, the groundsfor a discretionary increase in taxable costs are much broader: Louw v Hamelin-Chandler, 2012 ABQB 52 at para 18; WasteManagement of Canada Corporation v Thorhild (County), 2009 ABQB 157. I have come to the conclusion that, although the highthreshold was not met for solicitor-client costs in this case, the Plaintiffs are entitled to a costs award on an enhanced basis. [29] In Schwartz Estate, Mr.

Justice Graesser said at para 181: [181] I relied heavily on Babchuk v. Kutz, 2007 ABQB 81 and Petrowski v. Petrowski Estate, 2009 ABQB 753, and concluded at para.16 that payment of the unsuccessful party's costs out of the estate could be justified following an analysis of a number of factors (quotingfrom Babchuk at para. 8): A. Did the testator cause the litigation?

B Was the challenge reasonable? C. Was the conduct of the parties reasonable? D. Was there an allegation of undue influence? E. Were there different issues or periods of time in which costs should differ? F. Were there offers to settle? Analysis [ 30 ] On a review of all of the materials filed before me and oral argument, I am of the view that if there ever was a time when the position of Mr. Nelson was reasonable, that time terminated on September 3, 2013 when Ms. Balachandran filed her Affidavit setting out the extent and the detail of her relationship with the Deceased.

There can be no doubt about her relationship after reading her Affidavit filed on March 4, 2014 an Affidavit that Mr. Nelson elected not to cross-examine on. With respect to the questions asked by Mr. Justice Graesser above: Did the testator cause the litigation? [ 31 ] I am satisfied, as I have indicated above, that we cannot fault the Deceased for not preparing and executing a will. Dying intestate does not prima facie cause litigation. Furthermore, the facts of this case clearly established the adult interdependent relationship between the Deceased and Ms. Balachandran.

Was the challenge reasonable? [ 32 ] The preliminary but thorough searches for a will searches by Ms. Balachandran, Mr. Nelson and his friends failed to produce a copy or evidence of any contact with any solicitor regarding the preparation of a will or any other information leading to a conclusion that a will actually existed. The despairing references or indications that Ms. Balachandran hid or destroyed a will are completely unwarranted. [ 33 ] In fact all the searches carried out by both Ms. Balachandran and Mr.

Nelson and his friends demonstrated the extent and the depth of the relationship between the Deceased and Ms. Balachandran. This activity alone and the circumstances under which it was undertaken would alert anyone, including Mr. Nelson, that there was a significant relationship in existence and of some length. Was the conduct of Mr. Nelson reasonable? [ 34 ] Initially it would be fair to say that some proof from Ms. Balachandran that she was the Deceaseds’ adult interdependent partner was reasonable. Any notion of reasonableness on Mr. Nelson’s

part vanishes after Ms. Balachandran filed her Affidavit sworn in August, 2013.. [ 35 ] As I found in my Reasons for Judgment, all of the evidence from the very beginning pointed to, and supported, Ms. Balachandran’s position that she was the Deceased’s adult interdependent partner. The challenge by the Deceased’s brother was an invasive, unnecessary, unwarranted and nasty intrusion into the relationship between Ms. Balachandran and the Deceased. The entire nature of the attack, both in writing and orally in submissions, damaged the reputation and integrity of the Deceased and of Ms. Balachandran.

The tone and the quality of this attack was completely unnecessary and mean spirited. Were there offers to settle? [ 36 ] Mr. Nelson made two offers to settle, but in my view both were disingenuous. [ 37 ] Ms. Balachandran was put to the test to prove her relationship and in this regard, Rule 10.33(2)(

a) and (

b) provide:

(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 the action;

b) a party's denial of or refusal to admit anything that should have been admitted. [ 38 ]

Section 90(

h) of the Surrogate Rules is important: On an application under this Division, the Court may: (

h) direct the payment of costs, including penalizing any person who required formal proof of the will if it became clear during the proceedings that (

i) the application was frivolous or vexatious, (ii) the person caused undue delay, or (iii) the person had no substantial basis for requiring the scrutiny of the court; [ 39 ] In Schwartz Estate Mr.

Justice Graesser stated at para 208: [209] Therefore, I concluded at para. 33 that "misconduct during the litigation can surely be found if there is no reasonable basis to which to commence, or continue, litigation." I believe that to be a correct statement, and my analysis of the Defendants' positions throughout the will litigation supports my conclusion that this is certainly a case where solicitor and client costs may be appropriate. ... [226] Where the courts wish to give a cost award approaching solicitor and client costs, it is not uncommon for the courts to use a multiplier of 3.

That has frequently been done in cases where fraud has been alleged, but not proven, and an elevated award of costs is appropriate. [ 40 ] One party has been successful here, Ms. Balachandran, the adult interdependent partner of the Deceased. His brother, not a beneficiary to this Estate entered and commenced an action that caused significant legal expense and was conducted in such a way as to inflict financial harm and emotional pain to Ms. Balachandran. Examples of this are set out in the materials and at length in the brief filed by counsel for Ms.

Balachandran. [ 41 ] The attitude was also present in oral submissions by counsel. [ 42 ] Although substantial material was filed prior to the hearing by Ms. Balachandran detailing the extent of her relationship with the Deceased, all of the backup material filed in this action was well known to the parties and highlighted in her Affidavit sworn in August and filed on September 3, 2013 Conclusion [ 43 ] In the result Mr. Nelson’s Cross-Application for costs is denied. Ms. Balachandran, being the successful party, is entitled to costs.

However, I am not satisfied that this matter reaches the status of full indemnity costs, although it is close, as referred to by Chief Justice McLachlin above. I therefore award a portion of costs on an enhanced basis and I fix that amount at $50,000. This is a multiple of the appropriate column C amount (approximately 2.5 times). Heard on the 10 day of November, 2014. Dated at the City of Calgary, Alberta this 15 day of December, 2014.

W.P. Sullivan J.C.Q.B.A. Appearances: Predrag Tomic/J. Edward Crane for the Applicant Nirosha Balachandran Benjamin J. Kormos for the Respondent Sheldon Nelson