Brooks et al. v. Ewing et al., 2015 NSSC 167

• Judge: Coughlan, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 09, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSSC 167;(2015), 363 N.S.R.(2d) 69 (SC)

Brooks v. Ewing (2015), 363 N.S.R.(2d) 69 (SC);

    1143 A.P.R. 69

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. JL.012

Frederick Brooks, Co-Executor and Co-Trustee of the Estate Of Marcel Brooks and Co-Trustee of Life Insurance Trust (applicant) v. Brandon Ewing and Brenda Brooks, Co-Executors and Co-Trustees of the Estate of Marcel Brooks and Co-Trustees of Life Insurance Trust (first respondents) v. Kahlyn McIntyre, child beneficiary, by her Litigation Guardian, Devonna McIntyre, and Justin Huntington, beneficiary (second respondents)

(Hfx. No. 411047; 2015 NSSC 167)

Indexed As: Brooks et al. v. Ewing et al.

Nova Scotia Supreme Court

Coughlan, J.

July 3, 2015.

Summary:

The proceeds of certain life insurance policies were subject to a trust for the benefit of the deceased's two children. In January 2013, one of the trustees (Brooks) applied to recover $50,000 that was wrongfully taken from the trust by another trustee (Ewing). The application was allowed. Brooks' lawyer applied for the taxation of his legal fees and disbursements in the amount of $213,845.64 plus interest, and for the reimbursement of the legal fees and disbursements by Ewing.

The Nova Scotia Supreme Court held that the account was to be taxed in the amount of $25,000 plus HST of $3,750, payable from the trust. Ewing was ordered to reimburse the trust on a solicitor-client basis for the full amount.

Barristers and Solicitors - Topic 3302

Compensation - Measure of compensation - Conduct disentitling lawyer to fees in whole or in part - [See Barristers and Solicitors - Topic 3308 ].

Barristers and Solicitors - Topic 3308

Compensation - Measure of compensation - Reasonable charges, reasonably performed - The proceeds of certain life insurance policies were subject to a trust for the benefit of the deceased's two children - In January 2013, one of the trustees (Brooks) applied to recover $50,000 that was wrongfully taken from the trust by another trustee (Ewing) for his own private advantage - The application was heard in May 2013 and allowed in October 2013 - Brooks' lawyer applied for the taxation of his legal fees and disbursements in the amount of $213,845.64 plus interest, and for the reimbursement of the legal fees and disbursements by Ewing - The Nova Scotia Supreme Court held that the fees charged were unreasonable - The accounts showed excessive and unnecessary time spent on the file - Much of the work performed subsequent to the decision was of no value to the trust or Brooks - It would be ridiculous for Brooks or the trust (which had a balance of $93,924.47) to incur over $200,000 in legal fees, disbursements and tax to recover $50,000 plus interest - The account was to be taxed in the amount of $25,000 plus HST of $3,750 - This amount was to be paid from the trust as it was reasonable for Brooks to take action to recover the $50,000 that Ewing took in breach of his duty as a trustee - Since the whole proceeding was made necessary by Ewing's actions, he was ordered to indemnify the trust on a solicitor-client basis for the full amount.

Barristers and Solicitors - Topic 3319

Compensation - Measure of compensation - Respecting unnecessary services - [See Barristers and Solicitors - Topic 3308 ].

Practice - Topic 7383

Costs - Costs in trust proceedings - Payable out of trust fund - [See Barristers and Solicitors - Topic 3308 ].

Practice - Topic 7384

Costs - Costs in trust proceedings - Payable by trustee - [See Barristers and Solicitors - Topic 3308 ].

Trusts - Topic 4141

Administration - Liability of trustee - General principles - [See Barristers and Solicitors - Topic 3308 ].

Trusts - Topic 4426

Administration - Indemnity of trustee - Litigation costs - [See Barristers and Solicitors - Topic 3308 ].

Authors and Works Noticed:

Waters' Law of Trusts in Canada (4th Ed.), p. 1209 [para. 22].

Counsel:

Bruce W. Evans, for the applicant;

Matthew J.D. Moir, for Brandon Ewing.

This application was heard in Halifax, N.S., on February 9, 2015, before Coughlan, J., of the Nova Scotia Supreme Court, who delivered the following judgment on July 3, 2015.