Indexed as:

Gray Estate v. Winkfield

Between

Kenneth B. Gray, Executor of Ben Gray, Deceased, Plaintiff,

and

Clara Winkfield, Defendant

[1992] O.J. No. 2599

Action No. 2298/88

 Ontario Court of Justice - General Division

 Windsor, Ontario

Cusinato J.

November 26, 1992

(25 pp.)

Cases considered:

Yared Realty Ltd. v. Topalovic et al. (1981), 45 C.P.C. 189.

Strelchuk v. Vella et al. (1990), 44 C.P.C. (2d) 172.

Steven Starr Investments Ltd. v. Aaron, [1991] O.J. No. 542 and [1991] O.J. No. 1296, Ont. Crt. Gen. Div.

Young v. Spofford (1916), 11 O.W.N. 232.

Re Plant, [1926] P. 139 at 148.

Re Cutliffe (Deceased) Leduc v. Veness and Another, [1958] 3 All E.R. (C.A.).

Re Champagne St. John v. Simard (1904), 7 O.L.R. 537.

Scott v. Cresswell et al., [1976] 3 W.W.R. 382 (Atla. C.A.).

Waterford Baptist Church Trustees v. Raymond (1930), 37 O.W.N. 449.

Prevost v. Bedard (1915), 51 S.C.R. 629.

McNiven v. Pigott (1914), 31 O.L.R. 365.

Edmond Letourneau and Joseph Bernier and Charles Eugene Carbonneau and Belinda Ann Carbonneau (1904), 35 S.C.R. 701.

Re Wiggins, Ex P. Robertson (1932), 41 O.W.N. 194.

Re Lockie (1925), 20 O.W.N. 161.

Suriano v. Suriano, [1972] 1 O.R. 125.

Shafer Estate v. Jones [1950] 2 W.W.R. 625 (Atla).

Nesbitt v. British Canadian Ins. (1938) 5 I.L.R. 197.

Boynton and Boynton (1879) 4 H.L.(E) 733.

Re Bisyk (1977), 4 C.P.C. 26.

Ridgely (In Trust) v. Ridgely Design Inc. (1991), 3 O.R. (3d) 695.

Walker v. Roman Catholic Bishop of St. John, [1929] 4 D.L.R. 15.

Assaf v. Koury et al. (1980), 16 C.P.C. 202.

Lesyork Holdings Ltd. et al. v. Munden Acres (1976), 1 C.P.C. 164.

Canada Square Corp. et al. v. U.S. Services Ltd. et al., 34 O.R. (2d) 250.

Zehr v. McIsaac et al. (1982), 39 O.R. (2d) 237 HCJ.

Olenchuk (Re) (1991) 4 C.P.C. (3d) 6, 43 E.T.R. 146 (Gen. Div.).

Scott and Cresswell v. Cresswell and Registrar of North Alberta Land Registration District et al., [1976] 3 W.W.R. 382.

16 Halsbury (3d) 480.

Re: - Sturmer and Beaverton (1911), 25 O.L.R. 190, affirmed (1912), 25 O.L.R. 566, 2 D.L.R. 501 (Div. Ct.).

Re:  Ronson, Field v. White 29 Ch. D. 363.

Widdifield on Executors Accounts (5th ed.) c. 3, 47.

Southgate v. Crowley (1835), 1 Bing N.C. 531, 131 E.R. 1217.

Granger v. ONeil (1899), 31 N.S.R. 462.

Pembroke v. Warren (1896) 1 I.R. 76 1375.

Williston and Rolls (1970) vol. 2, c. 19 1059.

Rockwell Development Ltd. v. Newtonbrook Plaza Ltd., [1972] 3 O.R. 199, 27 D.L.R. (3d) 651 Court of Appeal.

Ontario Securities Commission v. Turbo Resources Ltd. (1983), 33 C.P.C. 50 (Ont. H.C.).

Paper Mach Ltd. v. Ross Enrg Corp.. [1934] 2 D.L.R. 239, [1934] S.C.R. 186 at 188.

Armour v. Merchants Bank, [1915] S.C.R. 629.

Central Canada Travel Services v. Bank of Montreal (1986), 57 O.R. (2d.) 633.

Coniagas v. H.E.P.C. (1932) 41 O.W.N. 179.

Harrop v. Forest Hill Village and Bell Telephone Company (1930) O.W.N. 120.

Statutes and Regulations considered:

The Rules of Civil Procedure, Rule 59.02(2).

The Rules of Civil Procedure, Rule 37.14(1).

Courts of Justice Act, R.S.O. 1990, C. c 43, S. 131(1).

The Trustee Act, R.S.O. 1990, C.T. 23, s. 48(1).

Raymond G. Colautti, for the Defendant (Moving Party).

Robert Barnes and Craig Allen, for the Plaintiff (Responding Party).

CUSINATO J.:-- The main issue for determination is the Court's authority to amend a judgment as it relates to the trial judge's disposition of costs after its entry. Further to this issue, the moving party petitions to correct a clerical error in the entered judgment for costs to be amended to solicitor client costs as awarded, and a declaration that the successful defendant is to have priority for payment of trial costs from the estate.

The issue in the estate litigation at the outset involved the testator's mental incapacity, and undue influence upon him by the defendant. The testator's mental incapacity was withdrawn prior to trial because the testator's will which was in issue was submitted to probate by the executor, also an estate beneficiary. At trial the remaining allegation of undue influence was found to be without merit and thus solicitor client costs were awarded to the successful defendant."

The moving party now seeks to amend the entered order for costs to make the executor personally responsible, jointly and severely with the estate for the payment of costs. At trial the executor in his personal capacity was not a party to the action, but it has now long been held that a non-party who was the real litigant and who was totally or partly responsible for the conduct of the litigation may be liable for costs. [(Section 131 Courts of Justice Act, c. 43, 1990); Ridgely v. Ridgely Design Inc. (1991), 3 O.R. (3d) 695 (General Division); Assaf v. Koury et al. (1980), 16 C.P.C. 202 (H.C.J.); Re Bisyk (No. 2) (1980), 32 O.R. (2d) 281 (H.C.J.); Zehr v. McIsaac et al. (1982), 39 O.R. (2d) 237 (H.C.J.)].

There is ample authority that an executor may be personally liable for costs where he institutes proceedings which are without merit and in some instances he has been held liable to indemnify the estate for such costs, where payments have been made from the estate.

There are jurisdictions where the executor through Statute is made personally and primarily responsible for the costs of estate litigation where unsuccessful. The Court of course may vary such a responsibility through its judgment directing that costs of the unsuccessful executor be paid from the estate. While it is not certain that Ontario Courts have gone this far in the first instance imposing costs personally against an unsuccessful executor in all cases for estate litigation without merit, the Court certainly has that discretion.

Where the estate is without sufficient assets to satisfy costs, and where the Court is unable to exercise a discretion to the contrary of the common law that costs be payable from the estate, then if we are to apply the common law, it would appear to suggest that the executor is personally responsible for the costs of litigation where costs are awarded against an executor.

In awarding costs as against an executor personally, aside from when an estate is without sufficient funds to cover those costs, such orders are found particularly where the executor has no reasonable grounds to proceed with litigation. An excellent example as occurred in this trial is where the executor in an estate proceeds on the issue of undue influence as it relates to a property transfer prior to the testator's death without any appropriate grounds to do so. In such instance the unsuccessful executor may bear the costs of the issue directly. See Olenchuk Estate (Re) (1991), 4 C.P.C. (3d) 6, 43 E.T.R. 146. (Gen. Div.)

The question here for answer is should the executor be personally liable for the payment of costs after entry of the judgment where the estate is either without funds or unable to totally satisfy the costs?

Sufficiency to satisfy litigation costs as it relates to an estate are in my view problems that should be resolved or considered prior to the litigation proceeding. In re Scott and Cresswell v. Cresswell and Registrar of North Alberta Land Registration District et al., [1976] 3 W.W.R. 382. Quoting from the Court of Appeal, the judgment of McDermid J.A., he concludes that the failure of the executors to obtain an indemnity from the beneficiaries of the estate or to obtain directions from the Court on the matter of costs before defending an action makes the executor's personally liable for costs particularly where one of the executor's was interested personally and where the litigation on the part of the executor was unsuccessful. At page 384 his Lordship has taken this quotation from 16 Halsbury (3d) at pg. 480:

"It is advisable for a personal representative before bringing or defending an action to obtain the consent of all the beneficiaries on whom the burn of costs would ultimately fall or, if for any reason this is not forthcoming, to seek the directions of the court by originating summons. If the consent of the beneficiaries or the sanction of the court is not thus obtained, the personal representative litigates at his own risk as to costs in the sense that he may be deprived of his right to be indemnified out of the estate if the court considers that he acted unreasonably in prosecuting or defending the action."

Where an action is brought by an estate executor, the defendant in such action should satisfy himself that the estate is able to pay or satisfy the costs of litigation if unsuccessful. This perhaps may be handled by seeking security for costs to be paid into court or direction by the court that security be retained by the executor. In the alternative, directions might be given by the court that there should be no distribution of the estate assets until completion of the trial and disposition of the cost issues. If all else fails the executor may be required to post security from the estate or personally and/or satisfy himself of the guarantees of the interested parties in the litigation as it relates to costs in the event of unsuccessful litigation. These are considerations that should be entertained before the final disposition of the issues before the court. In this instance the action is now complete and it appears from the submissions to this court that the estate assets are insufficient to satisfy the costs.

As stated by Middleton J., in Re Sturmer and Beaverton (1911), 25 O.L.R. 190, affirmed (1912), 25 O.L.R. 566, 2 D.L.R. 501 (Div. Ct.), that when the plaintiff is a nominal plaintiff and a mere shadow for the real actor; the arm of the law was long enough and strong enough to reach behind the man of straw and to compel the real actor to assume the burden of costs he had in truth incurred in the name of his alias.

Under these circumstances; is the arm of justice long enough and strong enough to make the executor personally liable after the entry of judgment for costs, where costs as against the executor personally was not asked for either at trial or immediately thereafter? In the alternative is this now a separate issue for adjudication as against the executor for costs to be paid personally?

One of the principal duties of an executor is the payment of debts and the protection of the creditors to the estate. If the executor is obliged in his position to bring court action on behalf of the estate, then he should be certain to retain sufficient monies to cover the costs of such litigation in the event the estate is unsuccessful or he may be held personally responsible in the event of failure.

"It is clearly the executor's duty not to, waste an estate not his own, which he is administering for the benefit of others in satisfying demands which are equally untenable in law and in equity."

Per Bowen L.J., Re Ronson, Field v. White, 29 Ch. D. 363. See also, Claims Against the Estate, Widdifield on Executors Accounts, (5th ed.) c. 3, pg. 47.

Independent of statutory provisions imposing obligations of an executor or administrator personally for his actions as it relates to costs incurred, it has long been held by the courts that executors may be personally liable for costs. Payment of costs from the estate where litigation has been pursued unsuccessfully is of course in the Court's discretion.

Nevertheless the circumstance that an executor has commenced and conducted an action properly is not in itself sufficient to exempt him from costs if he fails. Southgate v. Crowley (1835), 1 Bing N.C. 518, 131 E.R. 1217.

On the issue of costs, this is a Court disposition at the end of the adjudication. To this end costs in themselves do not form part of the substantive issue disposed of, but are rather an ancillary order to that disposition given by the trial judge. On this issue they are of course in the trial judge's discretion, but incorporated as part of the entered judgment.

As provided by the provisions of s. 131, the Courts of Justice Act, R.S.O. 1990, c. 43, it is the Court that determines by whom and to what extent costs shall be paid.

Where the Court makes a determination particularly in estate litigation that costs are to be payable by the unsuccessful litigant, the only question that remains in an action commenced by an executor, is whether those costs will be payable from the estate fund or by the executor personally.

Where the Court here as well as the successful party presumes there is an estate fund for which to satisfy the costs, but the court on motion after entry of the judgment is informed, this is not the case, is the trial judge functus to deal with a variance as to costs after entry of the judgment.

In other words to do what he would have done and what the authorities prescribe as it relates to the imposition of a personal obligation as against an executor for costs where the estate is without funds or insufficient funds to satisfy the payment of costs as ordered.

It may be appropriate Court policy that where costs are ordered in estate litigation that in every instance where the executor is unsuccessful, and it is warranted, the order "for costs should prescribe that they be payable jointly and severely by the executor in his personal capacity and from the estate.

In the event the trial judge exercises a discretion to have the cost paid from the estate, it would matter not if there were insufficient costs to satisfy the entire liability since that does not remove the primary responsibility of the executor to personally pay if the estate is without sufficient means to satisfy the costs.

This proposition is not without authority. In Granger v. Oneil (1899), 31 N.S.R. 462, it was held that,

"In every case commenced by an executor or administrator in which the defendant becomes entitled to costs, judgment ought to be entered as against such executor or administrator personally."

As earlier stated, the executor's personal obligation for unsuccessful litigation is in many jurisdictions incorporated by Statute. Even where the general provision for the liability of the executor is not provided specifically by Statute, the preferable practice from common law authority to be adopted for unmeritorious litigation without such statutory provision is that an executor is personally liable for costs unless the successful party has forfeited his right to them by his/her actions which disentitle them to costs.

In dealing with an executor or administrator who sues and fails, their obligation for primary personal liability for the costs has often been quoted within the case authorities as an accepted principal of law.

In Boynton v. Boynton (1878), 4 App. Cas. 733;

"... and unless the defendant has been guilty of some misconduct inducing the plaintiff to bring the action...the judgment against him will be that the defendant recover against him the costs to be levied de bonis propriis ..."

Walker v. Roman Catholic Bishop of St. John, [1929] 4 D.L.R. 15 at pg. 19 is a more recent authority for this statement of law, that an executor is personally responsible at the outset for estate litigation.

In 1929 ANN. PR. (Pembroke v. Warren) (1896), 1 I.R. 76); pg. 1375, the following is found (0.65 R.I)

"If an order is made that an action be carried on by the representative of a deceased plaintiff, such representative will be entitled to the whole costs of the action if the action succeeds".

and,

Will be personally liable to pay the costs if it fails, though without prejudice to an indemnity out of the estate..."

In my consideration of the appeal procedures, I acknowledge that even on the issue of costs alone where there has been a final disposition, there are provisions for appeal where the time limits have not prescribed, but this is only with leave.

Since costs are a discretionary matter, there must be evidence that the trial judge erred in his/her discretion as to costs for leave to be granted. [See s. 133 Courts of Justice Act, R.S.O. 1990, c. 43.]

The question here is whether this procedure is necessary on the facts before this Court and that this is the only appropriate procedural remedy.

While I wish to be clear that I do not prescribe as a general rule that any judgment including one which relates only to the issue of costs may be varied or amended after it is entered, save as provided by the Rules of Practice or the Courts of Justice Act, there may nevertheless be an exceptional case where this ought to be permitted. Each case must depend on its own facts and I do not propose to prescribe any time limits for such a variance which is factual in nature but it should not relate to a reconsideration of costs where the issue has been fully argued.

In this instance to fail to reconsider the disposition of costs would require further litigation to obtain an order for costs personally against the executor where as here it is alleged the estate is without funds or at minimal insufficient funds to satisfy the costs.

While this may be an appropriate course of action to follow where there is some evidence before the trial judge that the successful litigant may have forfeited such right to costs, that is not the case before me, or has that been argued on the motion by the respondent.

As confirmed in Re Boynton supra, we may commence with the principal that an executor or administrator who sues as such and fails is personally liable for the cost of the action.

On the issue of whether I am functus because of the entry of the judgment, I am mindful of the general rule as stated in Williston & Rolls, Law of Civil Procedure, (1970), vol. 2, c. 19, pg. 1059, which is to be found incorporated in the decision Yared Realty Ltd. v. Topalovic et al., 45 C.P.C. 189, at pg. 193.

"A trial judge may change or amend his judgment at any time before issue and entry thereof, but after the judgment has been issued and entered, be is functus officio, and has no power to do so apart from the provision of the rules."

The question then is if the motion to alter the terms of judgment as it relates to costs to add a non-party in this instance the executor in his personal capacity for the imposition of costs against the executor jointly and severely after entry of the judgment goes beyond my powers.

The executor in his personal capacity while not a specifically named party to the proceedings was not a stranger thereto. He was very much involved and would benefit from the litigation if successful. In his personal capacity the executor gave evidence on behalf of the estate, not out of benevolence, but for his own purposes and enhancement of benefits. For litigation of similar significance as to the principles to be applied see Assaf v. Koury, 16 C.P.C. 202.

As stated in Re Assaf, the trial judge when referring to an analysis of Arnup J., from Re Rockwell Development Ltd., v. Newtonbrook Plaza Ltd., [1972] 3 O.R. 199, 27 D.L.R. (3d) 651 (Court of Appeal), Cromarty J., excised this material from His Lordship's analysis on this issue of the liability of a non-party for costs. Arnup J., in Re Rockwell quoted the words of Boyd C., in Sturmer & Beaverton, re (1912), 25 O.L.R. 190, particularly at pg. 192.

"There is inherent power in the court to make a person who has set the court in motion to pay the cost of his unsuccessful litigation, and this though the person be not formally a party, but one who is the instigator and supporter of the movement..."

and further down in the judgment;

"Under the Judicature Act there is now ample jurisdiction to deal with costs, full power is given to determine by whom and to what extent costs are to be paid s. 119 now s. 82 (Judicature Act) and "every court has inherent jurisdiction independently of any statute to order costs to be paid by anyone who puts it in motion wrongly in a fruitless and unjustifiable application."

These provisions are now found in s. 131, Courts of Justice Act, R.S.O. 1990.

In Sturmer, 25 O.L.R. 566 at pg. 576; Middleton J., stated;

"But, quite apart from any consideration of the law and practice before the Judicature Act as now amended, I think that that Act makes our jurisdiction clear. In addition to the power originally confirmed, which made all costs in the discretion of the court, the court now has full power to determine by whom and to what extent such costs are to be paid. These words were added to get rid of the restricted meaning attached to the words of the earlier Act, In Re Mills Estate (1886), 34 Ch. D. 24 and the court has since then, declined to apply any narrow construction to the amending Act."

On this issue of varying the order for costs to include the executor's responsibility in his personal capacity, I cannot but help to think aloud the question of who is in a better position to deal with this issue but the trial judge who has heard the evidence. This Court would have granted such an order in the first instance if it had been but aware of the facts that the estate was without sufficient assets, to hold the executor personally liable for such costs to conform with the common law principals, that the executor is personally liable. The Court of course could also provide for an indemnity by the executor from the estate. Pembroke v. Warren supra, Walker v. Roman Catholic Bishop of St. John supra; Boynton v. Boynton supra, Field v. White supra, Southgate v. Crowley supra.

In dealing with this issue I have considered the comments of Conant D.C.J., Strelchuk v. Vella, 44 C.P.C. (2d) 172. In the facts of that case the applicant moved for a reconsideration of an issued and entered judgment of a substantive issue on the basis that counsel failed to bring to the judges attention at the hearing a relevant contrary legal authority. His Honour concluded that since the judgment was already issued and entered, a motion for reconsideration was limited to fraud or clerical error of which this was not the case. In coming to this conclusion, he referred to Ontario Securities Commission v. Turbo Resources Ltd., (1983), 33 C.P.C. 50 (Ont. H.C.) wherein Osler J. had this to say at p. 53;

"The power of the court to amend an order which has been issued and entered is strictly limited. In the absence of fraud, it is confined to cases where there has been a slip in drawing it up or where there has been error in expressing the manifest intention of the court."

His Honour went on to say, "I rely on Paper Mach. Ltd., v. Ross Enrg Corp., [1934] 2 D.L.R. 239, [1934] S.C.R. 186 at 188.

"Here there has been no fraud, no question of a slip has been raised and in the context it does not seem to me that there is error or ambiguity in expressing the manifest intention of the court".

In declining the motion for amendment or variance, His Honour also considered and distinguished Yared Realty Ltd., supra, Hollingworth J., as this matter did not deal with an amendment to a substantive issue adjudicated upon. It rather was dealing with an amendment or variance re the disposition of costs, and it was not a variance concerning the merits of the litigation itself.

In considering Rule 59.06(1) of the Rules of Civil Procedure, R.S.O. 1990, Reg. 194., it provides that an order that requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding. "Order" by Rule 103 in the Rules of Civil Procedure includes "judgment".

And further, Rule 59.06(2) to paraphrase, (2) - A party who seeks to,

(a) have an order set aside or varied on the ground of ... facts arising - or discovered after it was made;

(b) N/A

(c) N/A

(d) obtain other relief than that originally awarded, may make a motion in the proceeding for the relief claimed.

In reviewing Rule 59.06 save that it is now derived from two former rules of Court, R-521, and R-522, the rule appears to be the same.

In dealing with both of the aforementioned Sub-rules of 59.06 collectively, it appears that the relief available therein is properly brought by motion to the trial judge who tried the action. Armour v. Merchants Bank (1896), 17 P.R. 108.

The Supreme Court of Canada in Prevost v. Bedard, [1915] S.C.R. 629 identifies the purpose of these rules at pg. 629:

"The power of the Court to amend a judgment after it has become a record of the Court is specially limited to making the record conform to the judgment pronounced or intended to be pronounced; it does not authorize the recalling of the judgment in order to deal with a collateral matter, not actually or constructively involved in the Court's decision. The proper course was to apply to the Court of original jurisdiction for an amendment of the record of that Court."

In my historical review of Sub-rule 1, this Rule in part permitted where through oversight a matter which should have been disposed of by the trial judge has not been dealt with in the formal judgment, the trial judge retains jurisdiction to deal with it thereafter, even after the formal judgment has been issued and entered. This is also true for errors, omissions or accidental slips.

In dealing with "accidental slip", I am in agreement with the statement of law as found in Central Canada Travel Services v. Bank of Montreal (1986), 57 O.R. (2d) 633 that this rule is designed to amend judgments containing a slip, not set aside judgments resulting from a slip. Also as pronounced in an earlier judgment Coniagas v. H. E. P. C. (1932), 41 O.W.N. 179, the Court has no power under this rule to vary its judgment to adjudicate on a matter which was not open to the Court to decide.

In my examination of Rule 59.06(1) it adds no assistance to the defendant on this motion for the relief claimed by this moving party.

The decision of Harrop v. Forest Hill Village and Bell Telephone Company, [1930] O.W.N. 120 is a good example of the use of Sub-rule 2. On a motion before the Court, it appeared from subsequent affidavit material and affidavits filed that the evidence at trial had been considered on a misconception of the facts, and the trial judge on this basis re-opened the case and appointed a day to hear further evidence.

We are of course in the fact situation before the Court on the motion not dealing here with fraud or clerical error. While the general rule is that there is no power in a judge to amend a judgment which has been drawn up and entered except in two cases, (1) where there has been a slip in drawing it up, or (2) where there has been error in expressing the manifest intention of the Court, the Court has on authority corrected itself where judgment was given on a mistaken view of the facts, and judgment was then varied upon its being apprised of the true facts. Re Wiggins (1932), 41 O.W.N. 194.

So also where the Court intended to give costs and the judgment as drawn provided for their payment out of a sum of money which the Court had been informed was in Court, the judgment was amended to direct payment of costs forthwith after taxation, it appearing that the money was not in Court. Letourneau v. Carbonneau (1904), 35 S.C.R. 701.

In this latter fact situation the Court remedied their error upon what was a misconception of a factual situation to give intent to their order. This intent was the payment of costs for which they believed monies were in Court to satisfy the same only to find out after judgment they had been withdrawn.

A further example of a mistaken view of the facts by the Court where correction was ordered on application is the decision of Re Lockie (1925), 29 O.W.N. 161. In this case the Court in pronouncing the original judgment had obtained a mistaken or incorrect view of the facts, that the assets of an estate were adequate to pay the claim of an applicant as a creditor and her legacy. For this reason the applicant was not given an election to which she was entitled. On the Court ascertaining that these were not the correct facts, they allowed on application the election and accordingly amended the judgment.

In the facts before this Court as it relates to the disposition of costs at trial while it cannot be said that the Court failed to address the issue, it was under the mistaken belief that the estate had sufficient assets to satisfy the costs and the estate was ordered to pay the costs.

While Sub-rule (2) is to be construed with the narrowest of interpretations not to permit re-adjudication of the issues argued, it may be wide enough to give affect to the intent of the Court which is lost in its judgment because of the unknown facts now made known to the Court.

To use the words of Middleton J., in Re Lockie supra at pg. 162,

"When the case was before the Court in November 1924, it was argued and dealt with upon the assumption that the estate was adequate to pay both the claim of the applicant as a creditor and her legacy; and for that reason she was not given the opportunity to elect."

And as further stated in the judgment, the Court directed that the original order should be varied as asked.

In Waterford Baptist Church Trustees v. Raymond (1930), 37 O.W.N. p. 449 at p. 451,

"No doubt, as has been said in many of the cases, the Rule with regard to amending judgments that have once been signed and entered is to be applied with great caution, yet every case must depend more or less upon the particular circumstances existing, and here the failure in conformity between the formal judgment and the reasons, coupled with the fact that no change in the position of the parties has taken place, and the application has been properly made, all favour the granting of the relief asked."

The question then is if the amendment as sought here is prohibited if it relates to costs which results from facts discovered after it was made. It should matter not if the common law assumes that an executor is primarily and personally responsible for costs. This should be true whether the error be the Court's or the defendant's failure to appreciate the estate is without sufficient funds to pay the costs and/or the failure of the successful litigant to request costs personally against the executor. Does the variance of the order for costs as now requested fall into the same category as the substantive issues adjudicated upon? Is the Court then without jurisdiction to vary and/or amend.

On the above authorities I deem it appropriate now that the full facts are known to do what I would have done if those facts were known then and to comply with the intent of the judgment for the payment of costs by the executor personally. If I am incorrect in my assumptions, then I take umbrage from the decision Young v. Spoffard, [1916] O.W.N. 232. This request to seek costs against a non-party after judgment is not unique to our modern jurisprudence and while in Re Young, Middleton J., declined to impose an obligation on a non-party to pay costs, he did not foreclose it. In that instance his Lordship refused to impose costs upon a father who appeared to have had his son claim certain goods which resulted in litigation between the son and others. In coming to this conclusion, Middleton J. stated at p. 233;

"One might suspect that the father here put the son up to claim these goods, but that was not shown, for all that appeared the son might have acted in the assertion of what he believed to be his own right."

and,

"there may have been a good gift as between father and son void only as against the father's execution creditors. If so, the goods might be liable under an execution against the son. As to this, nothing should now be decided."

While Middleton J., declined to impose costs as against the non-party, what is important is his statement which appears thereafter as it relates to the imposition of costs, after what appears as entry of the judgment. A reconsideration of this issue after the trials completion is found at pg. 233, wherein His Lordship refers to the requested amendment for a reconsideration of costs as against a non-party.

"The case must be very exceptional in which the remedy if it exists at all, should not be sought either at the trial or from the trial judge immediately after the trial."

On the facts before me, while I certainly have some trepidation in varying or making any amendment to a judgment or to costs after it's entry, the question is whether I should give affect to the underlying intent for the payment of solicitor/client costs to the successful litigant. I presumed incorrectly but without argument at the conclusion of trial that the estate had the means to satisfy the costs imposed and at issue is whether I now am able to correct this discretionary wrong.

In my view the variation as now sought under the circumstances present, if not permitted by the rules falls into the exceptional category and ought to be granted. [See Yared v. Topalovic supra]

In concluding upon the issues raised in the Notice of Motion, I order as follows:

An amendment will go in the terms of the Notice of Motion as asked, to amend Paragraph 2 of the judgment as entered, to correct the clerical error of costs to solicitor/client costs, together with varying of the judgment as entered to incorporate Paragraph and 4 as it relates to the executor's personal obligation as to the payment of costs, and a declaration and/or order that the successful litigant's costs shall be in priority to the plaintiff's own solicitor's costs from the estate.

Under the circumstances there should be no order as to costs upon the motion.

CUSINATO J.