Justice David Brown of the Ontario Superior Court of Justice is a careful and thoughtful jurist. Since his appointment as Administrative Judge in charge of the Toronto Estates List, he has been confronted with a number of contentious and difficult cases in this highly charged area of civil litigation. With this background, a postscript Justice Brown added to his decision in Salter v. Salter, 2009 CanLII 28403 on the subject of costs in estate litigation matters is especially noteworthy:
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.