Executor Personally Liable For Court Costs

Executor Personally Liable For Court Costs

Craven v Osdacz 2017 ONSC 4396 held an executor of an estate personally liable for costs totalling about $150,000 for reckless and unreasonable behavior that amounted to reprehensible for opposing a plaintiff’s court action for no valid reason other than to frustrate and delay the court proceeding.

The executor was acting not as estate trustee but personally in carrying out vendetta against plaintiff to limit any compensation she received from estate where liability was clear virtually from start. The groundless defences raised by the executor were designed to ensure that plaintiff would see little or no estate benefits.

The executor occupied a position of fiduciary as estate trustee and used that position and estate assets to conduct litigation in way amounting to harassment of plaintiff to protect his own position. The plaintiff was successful on every major issue raised at trial including issue of trustees’ improper payment of legal fees from estate assets . The only area where the plaintiff was not wholly successful was concerning quantum of repayment of dissipated legal fees to estate, but she was substantially successful on this issue.

The executor’s reckless, totally irrational and totally unreasonable conduct rose to level of reprehensible conduct and personal confrontations with plaintiff rose to level of reprehensible conduct worthy of sanction in form of imposition of solicitor and client costs.

19 Michael Osidacz was acting not as estate trustee but personally in carrying out a vendetta against Julie Craven in order to limit any compensation she received from the estate where liability was clear, virtually from the start and it was obvious that she was entitled to substantial damages that would exceed the value of the estate.

20 I have found that Michael Osidacz advanced “speculative and groundless defences” and acted in a manner that was “anything but reasonable, prudent or appropriate”. I have found that Michael Osidacz raised the estate’s defence on “virtually no evidence” and was totally irrational and reckless in his conduct as Estate Trustee amounting to a dissipation of assets of an overall modest sized estate. I have also found that the groundless and frivolous defences raised by Michael Osidacz were designs to ensure that Julie Craven would see little or no benefits from the estate.

22 Michael Osidacz resisted Julie Craven’s obvious and lawful claims for 10 years until shortly before trial. His actions went far beyond “mis-guided litigation” and amounted to harassment of another party by pursuit of “fruitless litigation”. In the end, the plaintiff was successful on every major issue raised at trial including the issue of the trustees’ improper payment of legal fees from the assets of the estate. The only area where the plaintiff was not 100 percent successful is concerning the quantum of repayment of dissipated legal fees to the estate. Even on this issue, the plaintiff was substantially successful.

23 Based on the foregoing, reckless and egregious conduct on the part of Michael Osidacz, the plaintiff’s position is that “the loser pays” should apply in this case against Michael Osidacz and he should be required to pay her costs personally on an elevated basis, in this case, complete indemnity, except as set out below. I find that his reckless, totally irrational and totally unreasonable conduct and personal confrontations with the plaintiff rise to the level of “reprehensible” conduct in accordance with the case law and is worthy of sanctions as a form of chastisement justifying the imposition of solicitor and client costs.

24 If elevated costs are not awarded to the plaintiff, she would have to spend a substantial amount of her damages judgment on elevated legal fees caused by the conduct of Michael Osidacz, thereby allowing him to achieve his objective of seeing to it that she obtains as little of the assets of the estate as possible.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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