How is it possible for five parties to incur $4,435,050.18 of costs essentially on a four day application hearing for the opinion, advice and direction of the court? How is it possible that the majority of those costs would be incurred by two estate trustees? According to Justice Brown in his recent costs endorsement in Kaptyn v. Kaptyn the recipe is one part deafness, and one part unreasonableness.  In 2008, the Kaptyn estate had been embroiled in a two-week will challenge trial. The judge presiding over that trial, Justice Lederer, had made findings about the testator’s general intent in structuring his estate.  However, Justice Brown found that the estate trustees, Henry and Simon Kaptyn, “were deaf to the findings made by Lederer J.”  Instead they proceeded to pose questions to the court that had already effectively been answered. Furthermore, the estate trustees adhered to unreasonable positions. In so doing, the estate trustees put their own self-interest ahead of their fiduciary duty to the estate. Justice Brown found that the estate was not to bear responsibility for costs incurred in this fashion.

In a scathing indictment of the estate trustees’ conduct, Justice Brown took the costs of $1,639,700.43 sought by Henry, and the costs of $1,164,082.80 sought by Simon, and reduced each to $350,000.00.  To add to the sting, he ordered that these costs were not to be paid until all other liabilities of the estate were paid and until the estate transferred to the grandchildren the gifts the testator had made to them. The costs conditions were rather extraordinary as Justice Brown acknowledges. Yet they accorded with what he saw to be a judge’s duty to require litigants “to reflect carefully on decisions issued by the court and to bring good faith and common sense to the implementation of those decisions.”  This he considers to be particularly important due to the scarcity of judicial resources:  “Litigious families like the Kaptyns cannot reasonably expect that unlimited judicial resources are available to devote to their internecine quarrels.”

The costs conditions alone make for a noteworthy judgment.  Yet Justice Brown’s endorsement goes further than just the Kaptyns in his indictment. In dealing with judicial scarcity, he observes that

judicial resources in the Toronto Region are not infinite.  On the contrary, the Toronto Region lacks an adequate judicial complement to meet the demands of present day litigation.[…]That dates for one day civil motions are now being given out 8 to 9 months down the road – a delay Toronto Region judges find embarrassing – signals the severity of the lack of judicial resources in this Region and the failure of the court system to adapt to the new reality, at least in this Region, that civil litigation increasingly consists of long, complex motions and applications.

This is not the first time that Justice Brown has used an endorsement as a platform from which to point out the underfunding and lack of resources which besiege the Ontario court system: see for instance, Bon Hillier v. Milojevic, and Pershadsingh v. Thompson. In the latter case, Justice Brown’s frustration is palpable when he asks whether “the inadequate document and file management systems that exist in the Superior Court of Justice of Ontario fall short of the constitutional standards imposed on the provincial government regarding the ‘maintenance and organization of provincial courts’.”  It’s unlikely to be his last time making such statements.  Is anyone who can make a difference listening? Unfortunately, Henry and Simon Kaptyn might not be the only ones who are deaf to judicial reasons.

Thanks for reading.

Angelique Moss