Law Times

PAGE 4 NEWS July 25, 2011 • law Times Appeal court orders costs review in fractious $1.2M estates dispute BY SHANNON KARI For Law Times ing to fi le a bill of costs, even when directed by the judge, the Ontario Court of Appeal has ruled in a fractious estates case. In its ruling this month, the T appeal court redirected Ontario Superior Court Justice David Brown to reassess his original decision that ordered Nancy- Gay Rotstein to pay $737,000 in costs and disbursements to her brother, Lawrence Berk Smith. Th e Court of Appeal up- held Brown's decision to award partial summary judgment to Smith related to his mother's estate and to grant costs on a full indemnity scale. But the he losing party shouldn't face adverse consequences for fail- 3-0 ruling written by Justice Robert Armstrong found that in determining the appropriate costs, Brown didn't properly consider a detailed written cri- tique fi led by Rotstein's lawyers that challenged the bill submit- ted by Smith's counsel. "What the motion judge has done is reject an argument based on an analysis of the evi- dence of billing rates and hours because the appellant failed to fi le her own bill of costs, which she is not required to do," Armstrong wrote. Richard Shekter, lead coun- sel for Smith, says that while the quantum of the costs still has to be decided, his client is "delighted" with the ruling. "Th e big fi ght was whether full indemnity was appropriate. Th e Court of Appeal said yes," notes Shekter, a founding partner at Shekter Dychtenberg LLP. The appeal court ruling makes it clear that it isn't mandatory for the losing party to fi le a bill of costs, says Earl Cherniak. Brown ordered partial pro- bate to Smith in a 1987 will and two codicils drafted by his mother, Ruth Dorothea Smith. She died in 2007 and left an estate with a net value of $1.2 million. Rotstein was excluded from the will, except for two pieces of jewelry. Rotstein, an author and lawyer, had been estranged from her parents since 1976 due to a dispute over two real estate transactions. Th e bulk of the estate went to Smith and his children. A third and fourth codicil to the 1987 will provided for varying amounts to one of Rotstein's daughters. Smith didn't seek summary judgment with respect to the funds left for Rotstein's daugh- ter and agreed to hold back $250,000 of the estate until the parties could settle that issue. Rotstein fi led a notice of ob- jection after her mother died. She alleged her mother lacked testamentary capacity, didn't have knowledge or approve of the contents of the 1987 will, and was subjected to undue in- fl uence. But Brown found that there PROTECT AND PRESERVE THE TRUE VALUE OF ART CRIMES AGAINST ART: INTERNATIONAL ART AND CULTURAL HERITAGE LAW BONNIE CZEGLEDI, LL.B. Understand the cultural, historical, and economic impact of art crime such as theft, forgery, fakes, war looting, and archaeological looting. This book reviews major art and antiquities crimes from the past century, offering new insight into the motives of art thieves, the legal and ethical challenges of recovery and restitution, and the devastating historical and cultural impact. The author evaluates current international treaties and conventions designed to protect cultural property and offers suggestions to address and prevent art crime − from exercising collective due diligence to reforming applicable legislation and increasing criminal prosecutions. was "no air of reality" to the claim that the mother was subjected to undue infl uence. "Th ere was no justifi cation in law or in fact for Ms. Rotstein to have taken her challenge through to the hearing of the summary judg- ment motion," Brown wrote. "To engage in baseless, hugely expensive, scorched-earth litiga- tion over the validity of a will is litigation conduct that falls into the category of 'reprehensible' and merits the award of elevated costs." What the judge described as "the most extraordinary feature of this motion" was that Rotstein didn't fi le a re- sponding affi davit to the mo- tion for summary judgment and declined to provide her- self for examination. Instead, Smith's lawyers cross-examined her husband. Th e Court of Appeal agreed ORDER # 982316-62322 $88 Softcover 200 pages March 2010 978-07798-2316-1 that this was an appropriate case to deviate from the "gen- eral rule of probate" that all testamentary documents be considered at the same time. It concluded "there is not a scin- tilla of evidence" that the 1987 will and the fi rst two codicils were invalid. However, a bill of costs in excess of $700,000 invites "careful analysis," the Court of Appeal stated. "While she may well have paid fees equivalent to or in excess of those claimed by the respond- ent, she is still entitled to chal- lenge the respondent's bill as un- reasonable," Armstrong wrote. Earl Cherniak, who repre- AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. sented Rotstein on the appeal, says the latest ruling makes it clear that it isn't mandatory for the losing party to fi le a bill of costs. Th e critique of Smith's bill fi led by the law- yers who acted for Rotstein in the Superior Court included "very careful submissions," says Cherniak, a partner at Lerners LLP. "Th e Court of Appeal has told Justice Brown he has to pay more attention to these submissions." Untitled-8 1 www.lawtimesnews.com 7/19/11 2:09:57 PM

• Cover
• Estates Ruling
• Maverick Retires
• Focus On Forensics/Private Investigators