Tofin v Galbraith, 2019 SKCA 35

Court of Appeal for Saskatchewan Docket: CACV3141 Citation: Tofin v Galbraith , 2019 SKCA 35 Date: 2019-04-12 Between: Estate of Michael Tofin and Dennis Tofin as the Executor of the Estate of Michael Tofin and as Owner of the Condominium Unit at Issue Appellants And Doris Galbraith Respondent Before: Jackson, Caldwell and Leurer JJ.A. Disposition: Appeal allowed in part Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Leurer On Appeal From: FLD 355 of 2013, Saskatoon Appeal Heard: October 2, 2018 Counsel: Dennis Tofin for the Appellant and on his own behalf Adam Hnatyshyn for the Respondent Jackson J.A. I. Introduction [ 1 ] This is an unfortunate case costing both parties financial and emotional capital and, in the case of the respondent, significant legal costs.

Those costs have been incurred in part because of applications brought by the appellants’ attempts to relitigate matters that had already been decided, or were in some other way off the mark, and still have not resolved the parties’ legal dispute. [ 2 ] There are two main issues on this appeal. The first is whether the Chambers judge erred by holding that he could not entertain an application for an interim distribution of family property on the basis of the material before him. The second is whether he erred by awarding the respondent solicitor–client costs and requiring that Mr. Tofin pay the costs personally.

In order to resolve these issues, it is necessary to canvass, at some length, the background facts. This Court must also decide whether to award the respondent solicitor–client costs of this appeal. II. Background [ 3 ] Michael Tofin and Ms. Galbraith were married for 22 years. This was a second marriage for Michael Tofin. He had six children, including Dennis Tofin [Mr. Tofin]. On December 22, 2004, Michael Tofin executed a will denying the existence of a valid marriage and leaving the entirety of his estate to his children. [ 4 ] Michael Tofin died on February 1, 2013. On September 23, 2013, Ms.

Galbraith, the respondent on this appeal, filed a petition in the Family Law Division of the Court of Queen’s Bench claiming spousal support and an equal division of all family property under the Divorce Act , RSC 1985, c 3 (2d Supp), and The Family Property Act , SS 1997, c F-6.3 , and relief under The Dependants’ Relief Act, 1996 , SS 1996, c D-25.01 . This action became FLD No. 355 of 2013 [the Family Law File]. [ 5 ] Mr. Tofin, as the executor of the estate of Michael Tofin, applied in the Court of Queen’s Bench to probate the estate and a file was opened: QB 447 of 2016 [the Estate File].

On this, and earlier applications, Mr. Tofin personally represented his father’s estate. He has named himself as an individual party as the “Owner of Condominium [#]” [the Condominium]. [ 6 ] In 1996, Michael Tofin and Ms. Galbraith commenced residing in the Condominium, which is owned by Mr. Tofin, who also resides in the same condominium complex. According to assertions made in the Family Law File, the Condominium was bought with money from the sale of the matrimonial home and put in Mr. Tofin’s name – a fact Ms. Galbraith states she did not know until after Michael Tofin’s death. Ms.

Galbraith has continued to reside in the Condominium since Michael Tofin’s death. [ 7 ] On February 4, 2015, in the Family Law File, Ms. Galbraith and Mr. Tofin executed a document entitled “Minutes of Settlement”. Those Minutes of Settlement required the execution of another document entitled “Occupancy Agreement” with respect to the Condominium. [ 8 ] In the Occupancy Agreement, Mr. Tofin is described as the owner and Ms. Galbraith is described as the occupier . This document describes the parties’ obligations and understanding, regarding the nature of the occupancy, as follows:

3. Occupier’s Obligations: The Occupier covenants to … (

g) not change the locks without the consent of the Owner; … (

n) allow the Owner to have the Premises inspected by an arm’s length property inspector annually upon 7 days’ written notice to the Occupier. The Owner may apply to court for additional inspections should sufficient evidence exist that merits further inspection. 4. Owner Obligations … (

c) The Owner agrees to allow the Occupier to register a miscellaneous interest under this agreement [this was in exchange for Ms. Galbraith discharging her certificate of pending litigation from the certificate of title for the Condominium]; … 12. General Provisions (

a) The Occupier and Owner agree that the within agreement is not a tenancy and that the provisions of The Residential Tenancies Act do not apply. [ 9 ] The Minutes of Settlement also required that the Family Law File be discontinued: “Both parties will instruct their counsel to execute the notice of discontinuance of the within action without costs …” (Minutes of Settlement at para 6). [ 10 ] Notwithstanding the filing of the notice of discontinuance, the Minutes of Settlement recognized that the distribution of personal property still had to be decided: 7.

The parties agree that the issue with respect to the ownership and distribution of Michael Tofin’s assets that are currently in Doris Galbraith’s possession remains at issue and that they will agree to work toward a resolution of this issue. If there is no resolution then either party has the right to bring this issue back before the Court for adjudication. [ 11 ] Up until the execution of the Minutes of Settlement and the Occupancy Agreement, the appellants were represented by counsel. Since that time, Mr. Tofin has been appearing on his own behalf and on behalf of the estate.

He has initiated several applications, which I will now describe in

summary form. [ 12 ] Sometime in June of 2015 – four months after the Occupancy Agreement specifically declared that the relationship was not governed by The Residential Tenancies Act, 2006 , SS 2006, c R-22.0001 – Mr. Tofin applied for an order for access to the Condominium pursuant to s. 45(

d) and s. 70 of that Act because he alleged “the Tenant will not allow him to access the rental unit”. In a decision dated July 10, 2015, a hearing officer determined that the relationship between Mr. Tofin and Ms. Galbraith is not a tenancy for several reasons. In part, the hearing officer relied on the terms of the Occupancy Agreement, which expressly declare that “the provisions of The Residential Tenancies Act do not apply”. [ 13 ] Then, in October of 2015, again notwithstanding the terms of the Occupancy Agreement, which expressly allowed Ms.

Galbraith to file a miscellaneous interest on the title to the Condominium, Mr. Tofin applied to remove the miscellaneous interest that Ms. Galbraith had filed. This necessitated Ms. Galbraith instructing her solicitor to take steps to ensure her registered interest would remain in place. [ 14 ] Next, Mr. Tofin applied to the Court of Queen’s Bench, in his capacity as executor of the estate of Michael Tofin, by means of an application dated March 22, 2016. This application was placed on the Estate File. He requested this relief: 1.

An Order pursuant to this court’s inherent jurisdiction granting access to [the Condominium] to Dennis Tofin, Darcy Tofin and Coralie Voth to allow them to photograph and take an inventory of items in [the Condominium] that either the Estate of Michael Tofin or the children of Michael Tofin (“Deceased”) may make a claim to. 2. An Order granting Dennis Tofin and the Executor of the Estate of Michael Tofin, and his assistants, to secure and remove any personal belongings contained in the inventory listing belonging to the Estate or personal property of the beneficiaries of the Estate. 3.

An Order granting Dennis Tofin, the owner of [the Condominium], access to inspect the property subject to owner access provisions as are outlined and made available to owners in The Residential Tenancies Act. [ 15 ] This application came before the first Chambers judge on April 7, 2016. The first Chambers judge permitted Mr. Tofin to have limited access to the Condominium except with respect to certain restricted areas and also directed Ms. Galbraith to swear an affidavit stating no estate properties were contained in those areas: This matter is adjourned to May 19, 2016.

In the meantime, the executor of the estate, along with one assistant, who cannot be a sibling, shall be able to go into the subject property between 1:30 pm and 5:30 pm for the purposes of making an estate inventory and taking such photographs as are required for that purpose. Ms. Galbraith’s privacy is to be respected at all times. She and a nominee of her choosing can be present. The inspection for these purposes of the property shall not consist of entrance into her bedroom, her bathroom and closets, and Ms.

Galbraith shall, within ten days of today’s date, provide an Affidavit swearing that there are no estate properties contained within those restricted areas.

[ 16 ] Still in the context of the Estate File, the matter returned to the Court of Queen’s Bench on May 19, 2016. On this occasion, the second Chambers judge ordered the following: With the agreement of Mr. Tofin, Mr. Hnatyshyn has undertaken to file with the Court and a copy to Mr. Tofin of an inventory, that is a listing of property claimed by Ms. Galbraith to be her property and entitlement as family property and that property in her possession and which she acknowledges is Estate property, the same to be provided to the Court and Mr. Tofin within 3 weeks.

Adjourned for one month to Tuesday June 21, 2016 at 10:00 a.m. Both counsel are to provide the court with their positions once the list has been filed. [ 17 ] Following a further adjournment, the matter came before a third Chambers judge on August 30, 2016. The material part of the resulting fiat reads as follows (September 8, 2016): [2] Tofin has eight grounds of relief in his application. The first ground, that of photographing and taking an inventory of property in the condominium unit occupied by Galbraith, was granted by the order of [the second Chambers judge] on April 7, 2016.

The other matters were heard on August 30, 2016. [3] Tofin seeks an order for removal of personal belongings of Michael Tofin from the condominium unit. No order shall be made. The Minutes of Settlement in FLD 355 of 2013 [the Family Law File] at paragraph 7 state that issues of ownership of Michael Tofin’s assets, if not resolved, would be brought back for adjudication in that application. Ownership involves questions of family property and that is the proper forum . [4] Tofin seeks an order to inspect the condominium unit. That matter is addressed in paragraph 3(

n) of the Occupancy Agreement. Because that was the agreement of the parties, there is no need for the Court to change the terms. [5] Tofin seeks an order directing Galbraith to return the locks on the condominium unit to their original status. Galbraith agreed in the Occupancy Agreement at paragraph 3(

g) to not change the locks without Tofin’s consent. Her counsel states that the locks have not been changed, but an additional lock has been installed because Galbraith fears Tofin will enter the premises unannounced. [6] An owner must have access to the unit for unforeseen emergency purposes. It is hereby ordered that Galbraith remove the additional lock within fourteen days of the date of this fiat. Galbraith is permitted to replace that additional lock with a privacy chain (such as the ones used in hotel rooms). That way she is assured Tofin will not enter unannounced when she is inside the unit.

If counsel for Galbraith has been provided incorrect information, and the original locks have been changed, Galbraith is ordered to change them back within 14 days of this fiat. [7] Tofin seeks an order directing Galbraith to cease using the surname “Tofin”. I decline to make such an order. Galbraith is referred to by her late husband in his will as “Doris Tofin”. She is entitled to use that surname if she wishes. [8] Tofin seeks an order directing Galbraith to remove her miscellaneous interest from the title to the unit. That matter was already addressed in paragraph 4(

c) of the Occupancy Agreement, stating that he agreed to Galbraith’s registration of her miscellaneous interest to protect her rights under the Occupancy Agreement. Tofin is not now entitled to an order removing the miscellaneous interest. [9] Tofin seeks an order directing Galbraith and her son, Tony Fong, from making false complaints against Tofin to the police. No order shall be made. That is a matter for the police and prosecutors to deal with. [10] Finally, Tofin seeks costs. He is unrepresented in the proceedings and has incurred no legal costs.

His claim for costs is dismissed. [11] Galbraith also seeks costs. Because Tofin was required to seek an order to obtain further information on potential estate assets, and to have the locks changed, success has been divided. Furthermore, Galbraith has not filed the affidavit as required by paragraph 5 of the order of [the second Chambers judge]. Therefore, I make no order of costs in Galbraith’s favour. [12] If the issue of the locks on the unit is not resolved within the time frame provided, Tofin may bring the matter back to me for further order, with seven days prior notice to Galbraith.

The date for any continuation of this matter may be arranged with the Local Registrar and counsel for Galbraith. (Emphasis added) [ 18 ] In light of the third Chambers judge’s decision, it should have been clear to Mr. Tofin that he was making his application in relation to the wrong file. This Chambers judge expressly stated that the question of the ownership of the assets would have to be adjudicated within the Family Law File and not the Estate File. [ 19 ] Nonetheless, Mr. Tofin brought another application styled yet again in the Estate File on November 10, 2016.

It came before the fourth Chambers judge, who described the requested relief in his December 5, 2016, fiat: [1] Dennis Tofin (“Mr. Tofin”) applies, on behalf of the estate of Michael Tofin and in his own right as owner of the subject condominium unit, for an order: (

a) granting access to the condominium unit to Mr. Tofin, Darcy Tofin and Coralie Voth for the purpose of entering and removing items that are claimed by the estate or by the children of Michael Tofin; (

b) granting Mr. Tofin reasonable access to monitor the historical hoarding issue in the condominium unit; and

(

c) requiring Doris Galbraith to comply with para. 5 of the April 7, 2016, order of [the second Chambers judge], by providing an affidavit swearing that there are no estate properties contained within the restricted areas. [ 20 ] In the result, the fourth Chambers judge dismissed the first request because it had to be addressed in the Family Law File and not in the Estate File.

The second request for relief was also denied because it is the same as asking to monitor the Condominium, which had also been dealt with by the second Chambers judge who concluded that the Occupancy Agreement had addressed the issue of monitoring. The third request for relief was moot because Ms. Galbraith had in fact produced the required affidavit. Ms. Galbraith was awarded $500 in costs. III. Application Under Appeal [ 21 ] On August 3, 2017, Mr. Tofin brought an application in the Family Law File, returnable September 13, 2017. This is the relief that he requested: 1.

An Order pursuant to this court’s inherent jurisdiction granting access to [the Condominium] … to Dennis Tofin, Darcy Tofin and Coralie Voth to allow them to enter and remove items in [the Condominium] that either the Estate of Michael Tofin (“Estate”) or the children of Michael Tofin (“Deceased’’) may make a claim to. 2. An Order granting Dennis Tofin, the owner of [the Condominium], reasonable access to monitor the historical hoarding issue within the unit. 3.

An Order requiring that Doris Galbraith immediately respond to item #5 within the Order of [the second Chambers judge] as issued on the 7th day of April, 2016. The Order states, “Ms. Galbraith shall, within ten days of April 7th, provide an Affidavit swearing that there are no estate properties contained within the restricted areas”. This response should include a description of the contents of the two suitcases which were not disclosed, yet admitted by the Respondent to be “estate property within the restricted areas”. [ 22 ] In opposition to Mr. Tofin’s application, Ms. Galbraith filed an affidavit.

Her affidavit outlines the above history, describes the toll that the multiple applications have had on her and claims costs of $5,000. The salient paragraphs of her affidavit state the following: 28. Upon receipt of the Application dated November 10, 2016, I instructed my lawyer to communicate with Dennis that the matters being sought in his application were matters which the Court had already decided as outlined in [the third Chambers judge’s] fiat dated September 8, 2016.

Attached to this my Affidavit and marked as Exhibit “K” is a copy of the correspondence sent by my solicitor to Dennis on November 18, 2016. 29. Despite our correspondence, Dennis carried on with the Application scheduled for December 1, 2016. As a result of the Application, [the fourth Chambers judge] issued a fiat dated December 5, 2016. Attached to this my Affidavit and marked as Exhibit “L” is a copy of [the fourth Chambers judge’s] fiat dated December 5, 2016. 30.

On or about August 3, 2017, I received a Notice of Application from Dennis which is materially the identical application as was heard on December 1, 2016. 31. I instructed my solicitor to communicate with Dennis that these matters had already been decided and that, prior to proceeding with the removal of property from [the Condominium], a determination was required regarding the division of matrimonial property as between the Estate and myself. Attached to this my Affidavit and marked as Exhibit “M” is a copy of the correspondence between my solicitor and Dennis in relation to these points. …. 33.

In addition to the harassment of Dennis that I have received, I have been put to considerable expense in terms of defending multiple applications on matters which have already been decided. … 35. I make this Affidavit in opposition to the Application of Dennis Tofin dated August 3, 2017, and seek an order dismissing his application and awarding costs against him in the amount of $5,000.00. [ 23 ] It is apparent from Ms.

Galbraith’s affidavit that on November 10, 2016, prior to the December 2016, Chambers hearing, and on August 21, 2017, prior to the hearing that resulted in the decision under appeal, her counsel wrote to Mr. Tofin advising him he was raising matters already decided. Importantly for the purposes of this appeal, on August 21, 2017, counsel for Ms. Galbraith wrote to Mr. Tofin, advising him that his application was flawed as it did not raise the question of the division of family property: Further to your application scheduled for September 13, 2017, I have now had the opportunity to review enclosed materials.

It was my understanding that the application in September was to bring a resolution as to the matrimonial property. When I review your Notice of Application I note that you do not have the issue of division of property as a remedy being sought . The only remedy which is related in the sense is the first item which is seeking an order from the court to allow you and your sisters to enter [the Condominium] and remove items that the estate or the children of Michael Tofin may make a claim too.

As this matter has continued to drag on I do not see the constructive purpose in removing all property that the estate may make a claim to (on the basis of previous proposals my understanding is a claim is being [made] to significantly all matrimonial property which would result in the entire furniture and contents of [the Condominium] being removed). It would be more prudent to have the issue of ascertaining who is the proper owner of which property prior [to] seeking orders to remove items from [the Condominium]. Your Notice of Application does not put that specific issue before the court.

Furthermore, while we understand the necessity of resolving the issue of

dividing the matrimonial property between Ms. Galbraith and the Estate, we take issue with the suggestion that the children of MichaelTofin are entitled to make claims to the matrimonial property as well. On this basis, we would suggest adjourning the application scheduled for September 13, 2017, in order to allow you to file a Notice ofApplication to determine the division of matrimonial property. Please advise at the earliest convenience as to how you wish to proceed with the application.

In the event you are proceeding with theapplication we were served we will be filing an affidavit in opposition and seeking costs. (Italic emphasis in original, underline emphasis added) [24] Mr. Tofin responded on August 23, 2017, as follows: As executor of my father’s estate, I have previously, and in this current Notice of Application, clearly stated my position as it relates toboth estate and personal property of myself and my siblings within [the Condominium].

My position clearly provides reasonable resolution to the matter, AND CONTRARY TO YOUR COMMENTS, WOULD NOTRESULT IN THE ENTIRE FURNITURE AND CONTENTS OF [the Condominium] BEING REMOVED. Further, contrary to your statement that you take issue with the entitlement of the children of Michael Tofin making claim againstmatrimonial property, this is false and misleading. The children of my father seek possession of any and all items they have gifted orotherwise provided to my father for his personal use and also includes any items given to our father from his late wife and his parents.

I have made it very clear in my proposal as to ESTATE PROPERTY that the Executor is prepared to remain in the possession of DorisGalbraith. This includes the majority of property within the condo. It is these items which I am prepared to cede as matrimonial property. … The Application will stand as is. I have taken the time to review and document the items of the estate within [the Condominium] with theexception of items within the hoarding area and other “off limits” areas within the condo. The contents within these areas remainundocumented and this must be addressed.

The Court has been provided with an inventory and my proposal of resolution. They will havean opportunity to judge the legal ownership status of these items. (Uppercase emphasis in original) IV. Decision Under Appeal [25] The matter came before a fifth Chambers judge. He dismissed the request for further access as that matter had already beendealt with by the fiats of the previous Chambers judges. He dismissed the request for an order that Ms. Galbraith provide an affidavitoutlining the contents of the restricted areas because Ms.

Galbraith had, in fact, complied with that request within the time allotted: i.e.,by April 17, 2016, and Mr. Tofin had been previously advised of this. [26] Addressing the only remaining issue, the fifth Chambers judge wrote as follows on September 14, 2017 [Chambers Decision]: With that, I turn to the only remaining remedy that Dennis seeks, being: 1.

An Order pursuant to this court’s inherent jurisdiction granting access to [the Condominium] to Dennis Tofin, Darcy Tofin and CoralieVoth to allow them to enter and remove items in [the Condominium] that either the Estate of Michael Tofin or the children of MichaelTofin (“Deceased”) may make a claim to. First, I will dismiss that part of the request that Darcy Tofin and Coralie Voth be permitted to enter [the Condominium] and removeitems to which they may make a claim. They are non-parties. They have no standing in this action. Neither does Dennis personally havestanding in this action.

That leaves Dennis in his capacity as executor. He wants to go into [the Condominium] and take anything that he, in his absolutediscretion, considers to be family property. I will not make any such order. Until this matter is finally resolved, both parties have a rightto possession of family property. The court will seldom order that one party provide the other with family property unless there is anapplication for an interim distribution for property and the factors warrant such (see Conley v. Conley (1985) (SKKB), 44 Sask. R. 76). I would not have ordered an interim distribution on the facts before me.

Nor would I for a moment considerallowing Dennis to root through Doris’ belongings and take what he thinks he should have. Conclusion Two of the remedies that Dennis seeks were determined by [the third Chambers judge]. [The fourth Chambers judge] made it abundantlyclear that those matters had been adjudicated and could not be relitigated. Still, Dennis persists. The only live issue was in respect offamily property, which was doomed from the onset. There is no basis at law for his application in that respect.

I dismiss Dennis’ application in its entirety. (Emphasis added) [ 27 ] He then turned to the question of costs. The Chambers judge wrote on that point: That brings us to costs. This application is complexly devoid of merit. It is an abuse of process. In Seimans v.

Bawolin 2002 SKCA 84 [2002], the Court of Appeal held that the following principles govern considerations as to whether solicitor and client costs ought to be awarded (at para. 118): l. solicitor and client costs are awarded in rare and exceptional cases only; 2. solicitor and client costs are awarded in cases where the conduct of the party against whom they are sought is described variously as scandalous, outrageous or reprehensible; 3. solicitor and client costs are not generally awarded as a reaction to the conduct giving rise to the litigation, but are intended to censure behaviour related to the litigation alone; 4. notwithstanding point 3, solicitor and client costs may be awarded in exceptional cases to provide the other party complete indemnification for costs reasonably incurred.

In Microsoft Corp. v. 9038-3746 Quebec Inc ., 2007 FC 659 , Justice Harrington defined “reprehensible”, “scandalous” and “outrageous” conduct as follows at para. 16: [16] “Reprehensible” behaviour is that deserving of censure or rebuke; blameworthy. “Scandalous” comes from scandal which may describe a person, thing, event or circumstance causing general public outrage or indignation. Among other things, “outrageous” behaviour is deeply shocking, unacceptable, immoral and offensive (see Oxford Canadian Dictionary ).

This application, when viewed in the context of his previous applications, is a part of a continuing abuse of process. It is reasonable to infer that Dennis’ unrelenting, inappropriate and unreasonable approach is meant more to harass Doris than it is to seek lawful redress. His attempt in his previous application to obtain an order “directing [Doris] to cease using the surname Tofin” is a badge of dishonor that reveals much about that which drives him. Dennis’ actions throughout smack of cruel gamesmanship.

I find that Dennis’ conduct is worthy of censure and order that he personally, not later than September 28, 2017, pay $5,000 to Doris Galbraith in costs. The Canadian justice system is intended to provide citizens with a venue to have legitimate disagreements settled according to law. It is not intended to give bullies free reign to make the lives of others intolerable. Doris is 87 years old. She deserves to live free from the spectre of more groundless, vengeful applications. There was no application to prevent Dennis from bringing applications without leave of the court, so I will not go down that road.

I suggest that Dennis consider his next move in this litigation carefully. It has not gone well for him thus far. It could get worse. V. Relief Sought by the Parties [ 28 ] In their written argument on appeal, the appellants seek the following disposition in this Court: 1. Reverse the decision of [the fifth Chambers judge] including his punitive assessment upon the Appellant in the amount of $5,000. 2. Acknowledge legal costs borne by the Estate and assess the Respondent with a fair and reasonable portion of these costs. 3.

Require the Respondent to reply and cooperate with the Appellant’s proposition to settle the property issue as per the Appellant’s email message to the Respondent dated August 23rd, 2017. 4. Require a further application to the Court to resolve the property issue, should the parties not agree to a proposal as provided in the August 23, 2017, email message from the Applicant to the Respondent. 5. Provide further and other relief as this Honourable Court may deem. [ 29 ] In addition, the appellants have applied to adduce fresh evidence on this appeal. The fresh evidence consists of the email exchange between Mr.

Tofin and counsel for Ms. Galbraith on August 23, 2017, which I have referred to above and which is already part of the record as an exhibit to Ms. Galbraith’s affidavit [First Email Exchange]. [ 30 ] A second email exchange, which took place on July 13, 2018, was also submitted as fresh evidence [Second Email Exchange]. On July 13, 2018, counsel for Ms. Galbraith wrote to Mr. Tofin: We may be misunderstanding each other. Could you please clarify your offer from August 23, 2017, and what property you are prepared to cede as matrimonial property?

Secondly, I note [in] your state[ment] that you are prepared to allow this matrimonial property to remain in the possession of Doris Galbraith, could you clarify if you are simply prepared to cede possession or are you willing to cede ownership/any claim to such property on behalf of the estate. My understanding from your correspondence was that you were simply

prepared to cede possession and not ownership. [31] Mr. Tofin responded on the same day, saying the following: Apparently, there has been a serious misunderstanding of my position as Executor in this matter, particularly as it relates to my email ofAugust 23rd, 2017. In that email, I made the following statement: “I have made it very clear in my proposal as to ESTATE PROPERTY that the Executor is prepared to remain in the possession of DorisGalbraith. This includes the majority of property within the condo. It is these items which I am prepared to cede as matrimonialproperty”.

My statement as above, makes it clear that I as Executor, have no intent to seek removal of any property that Ms. Galbraith has madeclaim to under The Family Property Act with the exception of family gifts to our father as noted in my proposed resolution of November2, 2016. My statement as above, clearly states that I as Executor, am prepared to CEDE to her, the property Ms. Galbraith has made claim tounder The Family Property Act (see RESPONDENTS CLAIM TO ESTATE June 2, 2016). To CEDE means to transfer or assignownership, not simply possession.

Again, given her claim that these items are matrimonial property, I of course have not sought divisionof this property but have offered to her sole ownership of the items she has made formal claim to as matrimonial property. This includesthe vast majority of property within the condo. A final determination of any personal items that family members would like returned to them, can easily be placed in a small area on theliving room floor. Should there be any disagreement as to ownership of those items on the part of Ms.

Galbraith, a photo can be takenand presented to the court for a final determination of ownership. The above has been our position for several years now. The matter could have and should have been resolved long ago. It can beresolved very quickly with the cooperation of your client. (All emphasis in original) [32] For her part, Ms. Galbraith asks that the application to adduce fresh evidence and the appeal be dismissed and this Court orderthat the appellants pay the cost of the appeal on a solicitor–client basis. VI. Analysis A.

The fresh evidence application [33] The well-known test from R v Palmer, (SCC), [1980] 1 SCR 759 at 775, requires a court considering anapplication to adduce fresh evidence to consider due diligence, relevance, credibility and the impact on the result in order to determinewhether the fresh evidence should be admitted. [34] The First Email Exchange is already part of the record so there need not have been an application to adduce that evidence.

TheFirst Email Exchange, however, is relevant to understanding the whole of this appeal and also determining whether the balance of thefresh evidence, i.e., the Second Email Exchange, should be admitted. [35] Mr. Tofin tendered the Second Email Exchange in an effort to cast light on what he meant when he wrote the August 23,2017, email. Mr. Tofin submits that the Second Email Exchange shows he was prepared to “cede … the vast majority of the property” inthe Condominium to Ms. Galbraith in 2017. At that time, he was interested in personal items only.

In my view, however, all the SecondEmail Exchange shows is that email messages were exchanged and that, as of July of 2018, Mr. Tofin may have moderated his demands,but it is not determinative of his position as of August of 2017. [36] The First Email Exchange shows that Ms. Galbraith’s counsel had advised Mr. Tofin that (

a) he was raising matters that hadalready been decided, (

b) he should withdraw his pending application and “file a Notice of Application to determine the division ofmatrimonial property”, and (

c) if he proceeded with his present application, Ms. Galbraith would “be filing an affidavit in opposition andseeking costs”. In his response, Mr. Tofin wrote (and I repeat): The Application will stand as is. I have taken the time to review and document the items of the estate within [the Condominium] with theexception of items within the hoarding area and other “off limits” areas within the condo. The contents within these areas remainundocumented and this must be addressed. The Court has been provided with an inventory and my proposal of resolution.

They will havean opportunity to judge the legal ownership status of these items. [37] In support of his application to allow the evidence of the Second Email Exchange, Mr. Tofin filed three affidavits. The first15-paragraph affidavit makes no reference to dividing property and ends as follows: 15. I make this Affidavit in support of an Application for access to the property [at issue] with Coralie Voth and Darcy Tofin to view thepossessions of our late father, remove, secure and distribute these possessions to family members. [38] In the second affidavit, Mr.

Tofin refers to dividing the property but does not concede that Ms. Galbraith is entitled to a

portion: 12. There is very minimal monetary value to the contents of [the Condominium]. However, to myself and my siblings, there istremendous sentimental value to many of the items. There are many items that were gifted to our father by his children, his siblings, hisparents, and our late mother going back more than 75 years. The Proposed Resolution (exhibit “B”), clearly provides Ms. Galbraith witha most reasonable list of Estate items to remain in her possession.

It is apparent that she simply feels entitled to be the sole owner ofEstate and other personal property which simply does not belong to her. (Emphasis added) [39] Exhibit B, mentioned in the above paragraph, does describe a “Proposed Resolution” but it provides that all items claimed byMs. Galbraith “are in fact property of the Estate of Michael Tofin”, with the exception of a handful of valueless items. A principal aspectof the Proposed Resolution is a claim for “[a]ppropriate owner access”, followed by further demands in that regard. [40] In Mr.

Tofin’s third affidavit filed in the Court of Queen’s Bench, he makes further reference to exhibit B but, again, there isno indication that he was prepared to accept Ms. Galbraith’s proposed distribution. [41] In this case, the fresh evidence was created after the hearing and undercuts the reasoning in the Chambers judge’s decisioncompletely, and is clearly relevant to the solicitor–client issue, but the Court can be justifiably sceptical of this evidence in light of theFirst Email Exchange and the affidavits Mr. Tofin filed in support of the application. If Mr.

Tofin had truly intended to leave all thefamily property in the Condominium, except for certain personal items, he need not have made the application in the first place and nocosts award would have been made against him. [42] Thus, I would refuse the admission of this evidence on the basis that it is not credible as to the essential fact – namely, thatMr. Tofin was prepared all along to agree to a disposition of the property in accordance with Ms. Galbraith’s wishes – and that this wasthe only matter he wished the Court of Queen’s Bench to resolve. B.

The appeal proper [43] The core issue decided by the Chambers Decision is that this was not an appropriate case to order an interim distribution offamily property. [44] In dismissing the appellants’ application, the Chambers judge referred to Conley v Conley (1985), (SKKB), 44 Sask R 76 (QB) [Conley], a decision of Hrabinsky J., which has been followed in over 30 Court of Queen’s Bench decisions assetting the factors to consider when deciding whether to make an interim distribution: see, for example, Gray v Breeze, 2011 SKQB 193[Gray]; Geransky v Geransky, 2012 SKQB 218; Savoy v Savoy, 2014 SKQB 293, 456 Sask R 16; or Mills v Radons, 2018 SKQB 237. [45] In Gray, Popescul J., as he then was, summarized the Conley factors as follows: [13] In Conley, at paragraph [11], Hrabinsky J. identified eight factors to be examined.

Those factors included whether or not: (

a) the assets were acquired during the marriage; (

b) the net assets far exceeded the amount of the interim distribution; (

c) there would be considerable delay prior to trial; (

d) the other spouse has virtually exclusive control of all liquid assets; (

e) there is an ability to acquire the cash or otherwise finance an interim distribution; (

f) there would be prejudicial tax consequences; (

g) there would be serious prejudicial effects on the matrimonial assets; and (

h) the applicant is in need of funds to meet capital demand. [46] As Popescul J. reiterated in Gray, in a division of family property between divorcing or separating spouses, each has apersonal claim to the use and sustenance of the assets acquired during the marriage. Transferring assets can engage tax consequences anda failure to distribute may cause the spouse who is not in possession significant financial loss.

In an estate context, however, when thebeneficiaries oppose a family law claim by the surviving spouse who is in possession of the personal property, these factors will not bepresent, and their absence, as the Chambers judge indicated, does not point to distributing the property on an interim basis when there isno agreement to do so. [47] In this case, the assets have little resale value and have been identified as necessary for Ms.

Galbraith to continue living in herresidence, which fact lends further force to the conclusion of the Chambers judge that an interim distribution without an agreementwould not be possible.

[48] Thus, I conclude the Chambers judge did not err as a matter of law by refusing an interim distribution of the family propertyon this Chambers application. Further, the Chambers judge cannot be found to have erred by interpreting the application and theaffidavits as demanding something more than the distribution of personal property in any event, i.e., access and control, which werematters that had been previously denied Mr. Tofin. C.

The solicitor–client award of costs [49] Citing this Court’s decisions in Wilhelm v Hickson, 2000 SKCA 68 at para 7, [2000] 9 WWR 196, which referred to Benson vBenson (1994), (SK CA), 120 Sask R 17 (CA), the Supreme Court in British Columbia (Minister of Forests) vOkanagan Indian Band, 2003 SCC 71, [2003] 3 SCR 371 [Okanagan], commented on the essential, discretionary nature of a costsaward: [42] The discretion of a trial court to decide whether or not to award costs has been described as unfettered and untrammelled, subjectonly to any applicable rules of court and to the need to act judicially on the facts of the case (Earl v.

Wilhelm (2000), 199 Sask. R. 21,2000 SKCA 68, at para. 7, citing Benson v. Benson (1994), (SK CA), 120 Sask. R. 17 (C.A.)). Sigurdson J.’s decisionin the present case was based on his judicial experience, his view of what justice required, and his assessment of the evidence; it is not tobe interfered with lightly. (Emphasis added) [50] As this Court said in Siemens v Bawolin, 2002 SKCA 84 at para 98, [2002] 11 WWR 246 [Siemens], this discretionarystandard of review applies equally to solicitor–client awards with one caveat.

Since solicitor–client costs are to be granted rarely,appellate intervention on the basis of an error in principle is not uncommon. For example, the Supreme Court has overturned costsawards or sustained appellate court’s decisions overturning solicitor–client awards in such cases as Mackin v New Brunswick (Minister ofFinance); Rice v New Brunswick, 2002 SCC 13 at para 86, [2002] 1 SCR 405, and Young v Young, (SCC), [1993] 4SCR 3 (QL) [Young]. [51] In Young, the majority of the Supreme Court sustained the British Columbia Court of Appeal’s decision varying a solicitor–client costs award.

At trial in that case, the award had been made “on the basis that the custody claim had ‘little merit’, that therespondent attempted to mislead the court, that the respondent was recalcitrant on matters of custody and maintenance and, finally, onthe basis that unnecessary proceedings had resulted” (at para 249). [52] The Court of Appeal in Young had reduced the award to party-and-party costs, except for “four days of the trial and for fourdays of the interlocutory proceedings … on the basis of the husband’s non-disclosure of financial information” (at para 250).

Insustaining the Court of Appeal’s decision, McLachlin J., as she then was, wrote the following: [251] The Court of Appeal’s order was based on the following principles, with which I agree. Solicitor–client costs are generallyawarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties. Accordingly, thefact that an application has little merit is no basis for awarding solicitor–client costs; nor is the fact that part of the cost of the litigationmay have been paid for by others.

The Court of Appeal meticulously considered all the proceedings in the light of these principles toarrive at its conclusion that only partial solicitor–client costs were justified. (Emphasis added) [53] The principles espoused in Young have been repeated by the Supreme Court in numerous cases: Baker v Canada (Minister ofCitizenship and Immigration), (SCC), [1999] 2 SCR 817 at para 77; Hamilton v Open Window Bakery Ltd., 2004 SCC9 at para 26, [2004] 1 SCR 303 [Hamilton]; or Quebec (Attorney General) v Lacombe, 2010 SCC 38 at para 67, [2010] 2 SCR 453(“Such awards are very rarely granted …” (at para 67)).

In Okanagan, Major J. in dissent, but not on this point, wrote the following: [60] The standard rule on party-and-party costs is that they are generally awarded to the successful litigant at the end of litigation. Thesecosts are a contribution to the successful party’s actual expense. Full indemnification by way of solicitor–client costs is infrequentlyordered in Canada. Such costs require unusual and egregious conduct by the losing party.

On rare occasions the court may awardsolicitor–client costs where equity is met by doing so. (Emphasis added) [54] Notwithstanding the rarity of such orders, the awarding of solicitor–client costs remains a discretionary exercise and appellatecourts must act with restraint: Hamilton at para 27.

Further, the Supreme Court has sustained or imposed solicitor–client costs awards indecisions where, arguably, the behaviour did not fall squarely within the category of scandalous, outrageous or reprehensible behaviour.See, for example, accused awarded “reasonable legal costs of the proceedings to date” and “in the new trial for which they cannot in anyway be held responsible” (R v Curragh Inc., (SCC), [1997] 1 SCR 537 at para 13); and solicitor–client costs awardedbased on “litigation strategy” with reference to bad faith (Cinar Corporation v Robinson, 2013 SCC 73 at para 165, [2013] 3 SCR 1168).I do not take these decisions, however, as undercutting the essential point, which is that solicitor–client costs are rarely granted. [55] It also should be noted that the Supreme Court has also recognized a category of public interest cases where solicitor–clientawards appear more common: Friends of the Oldman River Society v Canada (Minister of Transport), (SCC), [1992] 1SCR 3 at 80; M. v H., (SCC), [1999] 2 SCR 3 at para 152; Doucet-Boudreau v Nova Scotia (Minister of Education),2003 SCC 62 at para 90, [2003] 3 SCR 3; and Provincial Court Judges’ Assn. of New Brunswick v New Brunswick (Minister of Justice),2005 SCC 44 at para 132, [2005] 2 SCR 286.

Expropriation cases also appear more likely to attract a solicitor–client award of costs:Smith v Alliance Pipeline Ltd., 2011 SCC 7 at paras 74–77, [2011] 1 SCR 160.

[ 56 ] In this jurisdiction, the principles guiding the exercise of judicial discretion in civil litigation are set out in Siemens : [118] These are the principles, relevant to this appeal, which I take from my review of the above authorities: 1. solicitor and client costs are awarded in rare and exceptional cases only; 2. solicitor and client costs are awarded in cases where the conduct of the party against whom they are sought is described variously as scandalous, outrageous or reprehensible; 3. solicitor and client costs are not generally awarded as a reaction to the conduct giving rise to the litigation, but are intended to censure behaviour related to the litigation alone; 4. notwithstanding point 3, solicitor and client costs may be awarded in exceptional cases to provide the other party complete indemnification for costs reasonably incurred. [ 57 ] In Lynch v Hashemian , 2006 SKCA 126 , [2007] 2 WWR 52 [ Lynch ], the Court confirmed that point 3 in paragraph 118 of Siemens reflects a general conclusion that solicitor–client costs should be confined to condemnation in relation to the litigation itself while point 4 opens the door to broader indemnification in exceptional cases ( Lynch at paras 32 and 33 ).

Some of the Supreme Court cases surveyed above can be said to fall into this latter category of indemnity.

In Goodtrack v Waverley (Rural Municipality) , 2013 SKCA 137 , 371 DLR (4th) 357 [ Goodtrack ], the Court awarded solicitor–client costs in this indemnity category in the expropriation context. [ 58 ] In addition to Goodtrack , this Court has sustained solicitor–client costs awards in Wilson v Saskatchewan Government Insurance , 2012 SKCA 106 at para 63 , [2013] 5 WWR 286; Santiago v Trottier , 2016 SKCA 113 at para 48 , 485 Sask R 81; Phillips Legal Professional Corporation v Vo , 2017 SKCA 58 at paras 153 and 157 , [2017] 12 WWR 779; and Hrycyna v Hood , 2019 SKCA 30 at para 72 . [ 59 ] In addition to Lynch and Hope v Gourlay , 2015 SKCA 27 , [2015] 6 WWR 317 [ Hope ], this Court has set aside solicitor–client costs awards in Gilewich v Gilewich , 2007 SKCA 34 at para 14 , 293 Sask R 48; ICR Commercial Real Estate (Regina) Ltd. v Bricore Land Group Ltd ., 2007 SKCA 72 at paras 80–81 , [2007] 9 WWR 79; Pinder Bueckert & Associates Inc v Quibell , 2012 SKCA 125 at paras 8 and 11 , 405 Sask R 158 [ Quibell ]; Hope v Pylypow , 2015 SKCA 26 , 384 DLR (4th) 255 [ Pylypow ]; Hope at paras 47 to 50 ; Smysniuk v Stecyk , 2015 SKCA 54 at para 13 , [2015] 8 WWR 717 [ Stecyk ]; JICO Holdings Inc. v Lynco Construction Ltd ., 2016 SKCA 126 at para 33 , 485 Sask R 237 [ JICO ]; and Olson v Skarsgard Estate , 2018 SKCA 64 at paras 41–42 , 426 DLR (4th) 151.

It should be noted that with respect to JICO the factual underpinnings of the award no longer existed by the time the matter was heard by the Court of Appeal. [ 60 ] A recurring theme in the jurisprudence from this Court when solicitor–client costs awards are set aside is the lack of reasons given to support the award: see Quibell at para 11 , or Stecyk at para 94 . In Pylypow , the Chambers judge had awarded solicitor–client costs without explanation (at para 45).

In setting aside the award, the Court referred to the well-known “exceptional nature of solicitor– client costs” (at para 47) from Siemens , adding that they “must not be awarded casually” and “never without reasons as to why they are being awarded and an identification of the conduct which is said to warrant them” ( Pylypow at para 48 ). The Court made the same comments in Hope (at para 48 ). [ 61 ] In this case, the Chambers judge did give reasons, but I must conclude that he erred by awarding $5,000 as solicitor–client costs for three reasons. [ 62 ] First, solicitor–client costs were not claimed. Since Ms.

Galbraith had not claimed solicitor–client costs, the Chambers judge had no information before him upon which to base an award of solicitor–client costs. Further, in this Court, and to his credit, Ms. Galbraith’s counsel candidly admitted that an award of solicitor–client costs in the amount of $5,000 would exceed what he would have charged this client.

Awarding solicitor–client costs, when they have not been claimed, and without any basis to determine the appropriate amount for such costs, is an error in principle. [ 63 ] Second, the Minutes of Settlement in the Family Law File are ambiguous as they make these two contradictory statements: “Both parties will instruct their counsel to execute the Notice of Discontinuance of the within action without costs …” (at para 6) and “The parties agree that the issue with respect to the ownership and distribution of Michael Tofin’s assets that are currently in Doris Galbraith’s possession remains an issue ….

If there is no resolution then either party has the right to bring this issue back before the Court for adjudication” (at para 7). The first statement could reasonably lead a self-represented litigant to the conclusion that no further application could be considered in the Family Law File. [ 64 ] In fact, as outlined above, two of the Chambers judges who heard applications in relation to this file thought that the issues could be resolved in the Estate File (whereas, the next two concluded that any application dealing with the distribution of property must be decided in the Family Law File).

Further, at least up until 2016, Ms. Galbraith’s counsel was preparing documents directed to the Estate File – although this too may be understandable since he was responding to Mr. Tofin’s applications. [ 65 ] Third, the fourth Chambers judge appears to have condoned Mr. Tofin’s previous conduct. Mr. Tofin submits that he took the fourth Chambers judge’s fiat as saying he could apply in the Family Law File for the relief he was seeking and, on that occasion, the Chambers judge awarded $500 in costs only.

On that point, the fourth Chambers judge wrote the following: [3] Before the estate or Michael Tofin’s children may remove any items of personal property that had been Michael Tofin’s property, one of two things must happen. Either Ms. Galbraith must consent to the removal, or the claim must be resolved in the other court action,

being FLD 355 of 2013 [the Family Law File]. Any such court resolution must be pursued in FLD 355 of 2013 – not in this action – because that is what the parties agreed to in the Minutes of Settlement. [4] It was because of this agreement that [the third Chambers judge] declined to make an order in this court action. If the applicants and Ms. Galbraith cannot agree on items to be removed for the estate or for Michael Tofin’s children, then the matter must be determined by the court in FLD 355 of 2013 .

Such a determination can be triggered by either side bringing an application in that action . [5] At the hearing of this application Mr. Tofin alluded to having received advice from PLEA, and from court house staff, that he was doing things correctly in bringing this application in this action. Mr. Tofin must understand that information he receives from such sources is, at most, general information about how court matters generally proceed. None of the people at PLEA or in the court house staff, however, give actual legal advice about how to proceed with a particular matter.

They are not lawyers and, even if they were, they are not his lawyers with the detailed knowledge of the circumstances that would permit them to give legal advice. … [14] Ms. Galbraith asks that I order that Mr. Tofin may not bring any further application to the court without first obtaining leave of the court. I am not persuaded that doing so is appropriate. While this application was unnecessary and inappropriate, Mr. Tofin has not flooded Ms.

Galbraith or the court with inappropriate applications . (Italic emphasis in original, underline emphasis added) [ 66 ] Having regard for these three reasons, I set aside the solicitor–client costs awarded in the Chambers Decision . D. Should enhanced costs be awarded? [ 67 ] Having set aside the solicitor–client award of costs, I now must deal with Ms. Galbraith’s claim that she was, nonetheless, entitled to party–party costs on an enhanced basis in the amount of $5,000. Ms.

Galbraith sought enhanced costs in the Court of Queen’s Bench in the amount of $5,000 on the same basis as the Chambers judge awarded solicitor–client costs: repetition of applications and relitigation of meritless matters already decided. This requires this Court to consider the question of party–party costs as a matter of first instance. [ 68 ] Since the appellants made this simple matter into something complex, it is likely that the taxing officer would award costs on column 3 of Tariff

Schedule I “B” – Family. Applying that column, costs could be assessed at between $2,200 and $2,600, depending on whether the taxing officer would allow extra costs for Ms. Galbraith’s affidavit and the amount that might be awarded for matters relating to the bill of costs and disbursements. With those as the base numbers, the issue then becomes whether Ms.

Galbraith should be awarded any additional amount for being required to respond to the motion brought in the circumstances of this case. [ 69 ] Clearly, Rule 11-1 of The Queen’s Bench Rules confers a discretionary authority on a judge to fix all or part of the costs without reference to the Tariff. The relevant parts of Rule 11-1 provide as follows: Discretion of Court 11-1

(1) Subject to the express provisions of any enactment and notwithstanding any other rule, the Court has discretion respecting the costs of and incidental to a proceeding or a step in a proceeding, and may make any direction or order respecting costs that it considers appropriate . …

(3) In awarding costs the Court may: (

a) fix all or part of the costs with or without reference to the Tariff ; (

b) award a lump sum instead of or in addition to any assessed costs; (

c) award or refuse costs with respect to a particular issue or step in a proceeding; (

d) award assessed costs up to or from a particular step in a proceeding; (

e) award all or part of the costs to be assessed as a multiple or a proportion of any column of the Tariff; (

f) award costs to one or more parties on one scale, and to another party or other parties on the same or another scale; (

g) direct whether or not any costs are to be set off; and (

h) make any other order it considers appropriate.

(4) In exercising its discretion as to costs, the Court may consider : (

a) the result of the proceeding; (

b) the amounts claimed and the amounts recovered ; (

c) the importance of the issues ;

(

d) the complexity of the proceedings ; (

e) the apportionment of liability; (

f) any written offer to settle or any written offer to contribute; (

g) the conduct of any party that tended to shorten or to unnecessarily lengthen the proceeding ; (

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

i) whether any step in the proceeding was improper, vexatious or unnecessary ; (

j) whether any step in the proceeding was taken through negligence, mistake or excessive caution; (

k) whether a party commenced separate proceedings for claims that should have been made in one proceeding or whether a party unnecessarily separated his or her defence from that of another party; and (

l) any other matter it considers relevant. (Emphasis added) [ 70 ] Further, there is precedent in the Court of Queen’s Bench for awarding enhanced costs in circumstances similar to those that exist here: Schulz v Schulz , 2015 SKQB 399 [ Schulz ]; Radu v Radu , 2017 SKQB 68 [ Radu ]; Farrell Holdings Ltd. v Nussbaumer Holdings Ltd. , 2017 SKQB 125 [ Nussbaumer ]; and Kaiser v Baildon (Rural Municipality) , 2018 SKQB 292 , 82 MPLR (5th) 75 [ Kaiser ]. [ 71 ] A brief

summary of these decisions indicates their applicability to the appeal at hand: (

a) Schulz – in addition to imposing a fine of $500 for contempt (at para 56), costs were fixed at $5,000 in light of the individual’s unwillingness to abide by court orders and to “provide a measure of compensation to the petitioner for her efforts in this regard” (at para 73); (

b) Radu – on a complex action to strike a claim brought against three individuals, costs were fixed at $5,000 (shared among the three defendants) as “considerable costs” had been expended “in bringing the applications to relitigate matters already decided” (at para 51); (

c) Nussbaumer – costs were fixed at $5,000 to be paid “forthwith and in any event of the cause” (at para 88) as the applicants for an Anton Piller order “did not present the full and complete factual picture to the court, either on the ex parte application, or in response to the information provided by the respondents” (at para 86); and (

d) Kaiser – on applications brought to strike statements of claim filed in two actions, and countervailing applications to strike those applications, costs were fixed at $8,000 where the plaintiff’s “conduct shows a disregard for his legal obligations and the authority of statutorily-appointed decision-makers” and where the plaintiff had “brought a number of meritless claims and pursued avenues of appeal on questionable, or even arguably frivolous bases” and “added to the complexity of the proceedings” (at para 109). [ 72 ] In this case, the following factors support an enhanced order of costs.

First, as the Chambers judge said, the appellants’ applications have been “ complexly devoid of merit” (emphasis added, Chambers Decision ). As the background to this appeal indicates, Mr. Tofin has made what should have been a simple matter – i.e., the determination of what personal property belongs to Ms. Galbraith (as a result of her family property claim) and what belongs to the estate – into a complicated matter. The appellants have prepared and organized their materials in such a way that makes it impossible to follow them without spending a considerable amount of time.

For example, affidavits contain argument and briefs are full of personal opinion. [ 73 ] Second, complexity aside, after the third application, Mr. Tofin’s applications have largely been devoid of merit but, perhaps more importantly, these applications have considerably lengthened proceedings and delayed a final resolution of the matter. In that regard, the following was explicit and should have been understood after the third Chambers hearing: (

a) it is highly unlikely the courts will award the appellants any access to the Condominium other than what they have already been granted; and (

b) the courts will not require Ms. Galbraith to provide any further evidence regarding the contents of the Condominium. In resolving the division of family property, the fourth and fifth applications served no useful purpose and required Ms. Galbraith to incur significant costs. [ 74 ] It also should have been clear to the appellants, after the fourth Chambers hearing, that Ms. Galbraith (

a) had complied with the order of the first Chambers judge, (

b) had provided an affidavit regarding the contents of the Condominium, and (

c) had indicated what she wanted from that list of assets. The only application that the appellants could have made on the fifth occasion was an application in the Family Law File, attempting to resolve who was entitled to specific items of personal property; but Mr. Tofin ignored Ms. Galbraith’s counsel’s warning and persisted with the fifth application. It must be emphasized that Mr. Tofin made no modification to his application after that warning and persisted in attempting to gain further access to the Condominium for the purposes of verifying, yet again, whether Ms. Galbraith had other assets belonging to his father’s estate, when this right of access had been refused to him.

[ 75 ] Third, Mr. Tofin has made these applications without incurring legal fees, but Ms. Galbraith has been required to retain the services of a lawyer to address matters that were doomed to fail from the outset. And, the matter is still not over. The division of the family personal property has yet to be completed. Mr. Tofin’s actions have contributed to the complexity and the duration of the proceedings. Matters that could have been over in 2016 are still not resolved. [ 76 ] Fourth, Mr. Tofin’s actions required Ms.

Galbraith to incur the cost of preparing a 7-page affidavit explaining in detail what the true issues were and attaching over 100 pages of exhibits. [ 77 ] No judicial decision, including a costs award, should ever be arbitrary. Every judicial decision must be grounded in the law and capable of justification. Rule 11-1(4) provides a non-exhaustive list of considerations to guide the exercise of the discretion conferred on judges by Rule 11-1(1). Further, a court may choose to fix costs as an expedient to taxation.

Unlike solicitor–client costs, however, which can vary depending on the lawyer engaged, an enhanced costs order finds its support in the Court of Queen’s Bench Rules and in the case law and can be more easily justified on these bases. [ 78 ] In the circumstances of this case, I conclude that an increased award of costs is in order. However, I do not believe that it would be appropriate to award $5,000. The appellants have made the matter complex, but it is not the type of matter that would require either lengthy preparation or complex argument in response.

Thus, weighing the above factors in the context of Rule 11-4(4) of the Tariff, I fix the amount of party–party costs at $4,000. E. Who should pay these costs? [ 79 ] In relation to the appropriate parties, the Chambers judge noted the following (and I repeat): “First, I will dismiss that part of the request that Darcy Tofin and Coralie Voth be permitted to enter [the Condominium] and remove items to which they may make a claim. They are non-parties. They have no standing in this action. Neither does Dennis personally have standing in this action ” (emphasis added, Chambers Decision ). [ 80 ] From this, Mr.

Tofin argues that the Chambers judge erred by fixing him with the obligation to pay the costs personally. On that point, the Chambers judge wrote, “I find that Dennis’ conduct is worthy of censure and order that he personally, not later than September 28, 2017, pay $5,000 to Doris Galbraith in costs”. [ 81 ] Mr. Tofin reasons that if he is not a party, he should not be required to pay such costs personally. There may be some potential merit to this point in other circumstances but, in fact, the Chambers judge erred when he stated that Mr. Tofin did not have standing – which significantly undercuts Mr.

Tofin’s argument made with respect to this issue. [ 82 ] I say this because, when Ms. Galbraith filed her Family Law File petition in the Court of Queen’s Bench, she named the “Estate of Michel Tofin” and “Dennis Tofin” as respondents. Since the Condominium is in Mr. Tofin’s name, allegedly with monies provided by his father and Ms. Galbraith from marital property, Ms. Galbraith had intentionally and with reason added him personally to her petition. [ 83 ] The choices available to the Chambers judge were to order the estate to pay the costs or to order Mr. Tofin (who owns the primary asset over which Ms.

Galbraith asserted a claim in her petition) to pay the costs. Having regard for the assets currently shown to be available for distribution, and the central role Mr. Tofin has played in this litigation, I can see no error on behalf of the Chambers judge when he ordered that Mr. Tofin pay the costs personally. [ 84 ] The Chambers judge ordered Mr. Tofin to pay the ordered costs within two weeks of his fiat. I see no reason why the same order should not be made at this time. F. Other matters [ 85 ] While Mr.

Tofin has asked for further orders in this Court, such relief can only be obtained in the Court of Queen’s Bench. In that regard, it must be noted that the Court granted an adjournment during the hearing of the appeal to allow the parties an opportunity to discuss further steps. G. Whether this Court should make an order for solicitor–client costs of this appeal? [ 86 ] Counsel for Ms. Galbraith asked this Court, if it were to dismiss the appeal, to grant his client solicitor–client costs of the appeal. Since the appeal will be allowed in part, this question is no longer relevant. The issue is whether Ms.

Galbraith should be entitled to full costs, notwithstanding the appellants’ partial success on this appeal. [ 87 ] According to Rule 54(1) of the Court of Appeal Rules , column 2 of

Schedule 1 of the “Tariff of Costs in the Court of Appeal” applies in this case. Depending on how one classifies the various items in that column, an award of costs can be as high as $6,000 (including a fee for the dismissed application to adduce fresh evidence). The Court’s current Tariff adequately indemnifies Ms. Galbraith without providing full indemnity. In this appeal, Ms.

Galbraith was required to file her own appeal book so as to place the whole of her affidavit before the Court and an award of costs should also indemnify her in relation to the dismissed application to adduce fresh evidence. [ 88 ] Having regard for the mixed success on this appeal, and the factors mentioned above, I will fix costs at $3,000 based on column 2.

VII. Conclusion [ 89 ] The application to adduce fresh evidence and the appeal are dismissed with party–party costs fixed at $3,000, payable by Mr. Tofin within four weeks of these reasons for judgment. To be clear, this is in addition to the party–party costs fixed at $4,000 for the purposes of the application in the Court of Queen’s Bench. Those fees are payable within two weeks of these reasons, which is in keeping with the Chambers Decision . “Jackson J.A.” Jackson J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Leurer J.A.” Leurer J.A.