Costs were not to be used to punish litigant for giving misleading evidence

Deceased died in 2009 and had three adult children. Prior wills had distributed estate among three children and grandchildren, but deceased executed will in 2006 leaving entire estate to daughter. Sons commenced action against daughter and estate, and trial judge dismissed all claims on basis that they were statute-barred and that will was valid. Sons commenced appeal which was dismissed for delay, and motion to set aside dismissal failed. Parties were ordered to bear their own costs. Daughter appealed costs order. Appeal allowed. Daughter was entirely successful at trial, and this was not appropriate case for costs payable by estate since daughter was sole beneficiary. While conduct of litigant in course of trial could be relevant in considering costs, costs were not to be used to punish litigant for giving misleading evidence. Misleading evidence did not have impact on trial judge's findings, and had no effect on conduct or length of trial and costs order was plainly wrong. Daughter was awarded costs on partial indemnity basis in amount of $150,000 payable by sons, and $10,000 for costs of appeal.

Birtzu v. McCron (2019), 2019 CarswellOnt 15335, 2019 ONCA 777, Doherty J.A., A. Harvison Young J.A., and J.A. Thorburn J.A. (Ont. C.A.); reversed (2017), 2017 CarswellOnt 5321, 2017 ONSC 2276, Bloom J. (Ont. S.C.J.).

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