2023 ONSC 835, 2023 ONSC 835

CITATION : Yang v.

Yang, 2023 ONSC 835 COURT FILE NO.: 01-2197/16 DATE: 20230202 SUPERIOR COURT OF JUSTICE – ONTARIO The estate of Shirley Chen Zing Fong Yang RE: CHARLES YANG, in his personal capacity, and as powers of attorney for property and care for BARBARA YANG, and as estate trustee for the estate of Shirley Chen Zing Fong Yang, Applicants AND: ALICE YANG, in her personal capacity and as estate trustee for the estate of Shirley Chen Zing Fong Yang, DANIEL YANG, in his personal capacity and as estate trustee for the estate of Shirley Chen Zing Fong Yang, ELEANOR YANG also known as Ellie Yang, FRED YANG, MELISSA YANG, JONATHAN YANG, DARRYN YANG, NEIL YANG, SEAN MCQUADE, TARA MCQUADE, CHRISTINE YU, VICTORIA YU, MICHAEL YU, SAMANTHA YANG, and VTY HOLDINGS LTD.

Respondents BEFORE: Justice Cavanagh COUNSEL: Michael S. Deverett , for the Applicant Charles Yang R.

Douglas Elliott , for the Respondent Alice Yang HEARD: In Writing COSTS ENDORSEMENT [ 1 ] In my endorsement released on November 30, 2022, I disposed of two motions. [ 2 ] I dismissed a motion by the Charles Yang (the “Applicant”) for an order requiring Cambridge LLP, the law firm retained by the Alice Yang (the “Respondent”), to return funds in the amount of $143,245.64 that the Applicant contended had been improperly removed by the firm from its trust account (representing proceeds of sale of a property). [ 3 ] I dismissed a cross-motion by the Respondent for an order varying or amending a consent Order made by Dietrich J. dated February 5, 2019, without precluding the Respondent from bringing another motion to vary or amend this consent Order on proper evidence. [ 4 ] The consent Order provides that the proceeds of sale of the property shall continue to be held in trust by Cambridge LLP until further order or agreement in writing by the Applicant and the Respondent. [ 5 ] The Applicant submits that he achieved significant success on his motion.

He seeks an order that a portion of his costs of his motion in the amount of $10,000 be paid by the Respondent and Cambridge LLP on a partial indemnity scale. The Applicant seeks an order reserving the balance of these costs ($5,205.21) pending the passing of accounts by the Respondent.

The Applicant contends that the Respondent is not entitled to costs of her motion. [ 6 ] The Respondent submits that she was the successful party on the Applicant’s motion and is entitled to costs of this motion on a substantial indemnity scale in the amount of $74,940.75 against the Applicant or, alternatively, the estate of Shirley Chen Fong Yang (the “Estate”). [ 7 ] The Respondent submits that the disposition of her cross-motion was akin to an adjournment, so the Applicant should not be considered to be the successful party and no costs should be ordered. [ 8 ] When the Applicant’s motion was brought, the amount that he claimed should be ordered to be returned to the Estate included the amount of $68,544.90 that was paid out of the firm’s trust account after the date of the consent Order.

In the Respondent’s initial factum filed in opposition to this motion (dated April 1, 2021), the Respondent took the position that none of the funds paid out of the trust account, including amounts paid after the consent Order, should be ordered to be repaid.

The Respondent asked that the Applicant’s motion in its entirety be dismissed. [ 9 ] In the Respondent’s supplementary factum (dated August 26, 2021), the Respondent stated that “[o]ut of an abundance of caution, Cambridge LLP has repaid $68,544.90 into its trust account, representing the fees charged to the Trust and Estate funds after the Dietrich Order was issued”. [ 10 ] In my endorsement, at para. 27, I noted the Applicant’s submission that this amount was paid out of trust in contravention of the consent Order.

At para. 29 of my endorsement, I held that given the undertaking and agreement of the firm to return the amount of $68,544.90 to the Estate, no order is needed for repayment of this amount. [ 11 ] It was necessary for the Applicant to bring the motion. As a result of bringing it, the Applicant obtained an outcome whereby (

i) the firm returned to its trust account the amount that had been paid out of trust after the consent Order, and (ii) an undertaking was

given by the firm to repay this money to the ETDL. The Applicant achieved success on his motion through the repayment to the firm’s trust account and the undertaking, which happened after his motion was brought. [ 12 ] Given this success, if the Applicant had accepted this outcome and discontinued the balance of his motion, he would have been able to seek costs of his motion to the date he was notified that the amount of $68,544.90 had been repaid to the firm’s trust account. However, the Applicant continued with his motion even after the firm confirmed this repayment.

In respect of the balance of his motion, the Applicant was unsuccessful. [ 13 ] I conclude that there was mixed success on the Applicant’s motion. Neither the Applicant nor the Respondent should be treated as having been the successful party. I make no order as to costs of this motion. [ 14 ] I do not agree that the disposition of the Respondent’s motion is akin to an adjournment.

There was relatively little time spent on the cross-motion and the Applicant, in his costs submissions, submits that the Respondent is not entitled to costs of the cross-motion. [ 15 ] I make no order as to costs of the cross-motion. [ 16 ] The Applicant’s motion was dismissed and I decline to reserve any of the Applicant’s costs pending the passing of accounts. Cavanagh J. Date: February 2, 2023