Wednesday, November 21, 2012

The general costs principle of ‘loser pays’ applies in estate litigation

Salter v. Salter, 2009 CanLII 28403 has a useful comment on costs in estate litigation matters (note, I have not "loser pays" applied frequently in estate matters but the case is a useful citation for the principle):

“From a year of acting as administrative judge for the Toronto Region Estates list I have concluded that the message and implications of the McDougald Estate case are not yet fully appreciated. A view persists that estate litigation stands separate and apart from the general civil litigation regime. It does not: estates litigation is a sub-set of civil litigation. Consequently, the general costs rules for civil litigation apply equally to estates litigation – the loser pays, subject to a court’s consideration of all relevant factors under Rule 57, and subject to the limited exceptions described in McDougald Estate. Parties cannot treat the assets of an estate as a kind of ATM bank machine from which withdrawals automatically flow to fund their litigation. The ‘loser pays’ principle brings needed discipline to civil litigation by requiring parties to assess their personal exposure to costs before launching down the road of a lawsuit or a motion. There is no reason why such discipline should be absent from estate litigation. Quite the contrary. Given the charged emotional dynamics of most pieces of estate litigation, an even greater need exists to impose the discipline of the general costs principle of ‘loser pays’ in order to inject some modicum of reasonableness into decisions about whether to litigate estate-related disputes.”

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