Successful parties seek $21,600 in fees costs and $1,600 for application to settle costs
In a recent case involving estate account approval and asset distribution, the Court of Appeal of Alberta awarded $8,075 in fee costs to the successful parties, who had requested $21,600 in fees.
The parties in this case were involved in a dispute over their late mother’s estate. In the last years of the mother’s life, the two respondents had managed her affairs under a power of attorney. They applied for the approval of estate accounts, the distribution of assets, and their discharge as personal representatives.
The appellant opposed the application of her two siblings. She argued that some assets were missing from the accounting and that one respondent should personally cover estate expenses worth $10,164.69. However, a chambers judge approved the passing of accounts and ordered the appellant to pay $2,500 in costs.
The appellant challenged the judge’s decision. She asked for a more detailed inventory of her late mother’s assets from five years before her death and again demanded that one of the respondents reimburse the estate for $10,164.69.
The respondents made an informal settlement offer, open until May 1, 2023. They proposed that they waive the costs of $2,500 and that one of them pay $10,164.69 to the estate. In exchange, the appellant would discontinue the appeal and release the respondents as personal representatives. The appellant did not accept or reject this offer.
The Alberta Court of Appeal dismissed the appeal and upheld the chambers judge’s decision.
The respondents requested costs under Column 3 of Schedule C of the Alberta Rules of Court, Alta Reg 124/2010. Specifically, they asked for $21,600 in fees costs and $1,600 in costs for their application to settle costs.
In Doerksen Estate (Re), 2024 ABCA 262, the appeal court decided that costs should be calculated under Column 2 due to the extensive documentation involved. It ultimately awarded $8,075 in fee costs plus $40 in disbursements and GST, as well as $500 in costs for the application to settle costs, inclusive of disbursements and GST.
The appeal court acknowledged that the offer made by the respondents was more favourable to the appellant than the outcome of the appeal as she would have been approximately $5,000 better off. The appeal court also accepted that the respondents’ offer was genuine and open for a reasonable time.
The appeal court found that it had the discretion to award enhanced costs due to the appellant’s non-acceptance of the offer but found that it was not bound to double costs under r. 4.29 given that the offer did not comply with r. 4.24 governing formal offers. While the respondent’s informal offer should impact the award, doubling costs would be excessive, the appeal court said.
Though a reasonable person might have accepted the offer in hindsight, the appellant’s decision not to accept it was not particularly unreasonable at the time, the appeal court held. She had concerns about the completeness of the estate accounts, which were not immediately clear without further explanation, the appeal court added.
