Executive Summary: Key Legal and Evidentiary Issues

• Limitation period question for challenging a prior will, including whether the issue is suitable for determination on a partial summary judgment motion.
• Appropriateness of using partial summary judgment in estate litigation where factual and legal issues may overlap with the trial.
• Application of Rule 57 and section 131 of the Courts of Justice Act to fix costs, including whether costs should be determined immediately or left to the trial judge or in the cause.
• Assessment of partial indemnity costs based on the reasonableness standard, rather than a strict hours-times-rate calculation, with access to justice as an overarching concern.
• Consideration of regional norms for hourly rates and whether Toronto counsel’s higher rates are reasonable for a party in the Northwest Region.
• Evaluation of proportionality between the nature/length/complexity of the motion and the quantum of costs claimed by the successful party.

Background and facts of the dispute

The litigation arises out of an estates dispute between Elvira Karen McNeil (“Karen”), the Applicant/Responding Party, and Mark Cebrowski (“Mark”), the Respondent/Moving Party. The underlying proceeding involves a challenge related to a prior will and, in particular, a novel issue concerning when the limitation period expires for bringing such a challenge. The case therefore sits at the intersection of estates litigation and civil procedure, with the limitation period defence at the heart of Mark’s position. In the main motion, Mark brought a motion for partial summary judgment. He sought to have certain of Karen’s claims dismissed on the basis that the limitation period to attack or challenge the prior will had expired. The motion was heard in writing and decided by Justice Nieckarz of the Ontario Superior Court of Justice. In the earlier decision, McNeil v. Cebrowski, 2025 ONSC 4652, the court dismissed Mark’s motion, holding that this was not an appropriate case for partial summary judgment. Although the full factual matrix and detailed reasoning on the limitation issue are contained in that earlier endorsement, the effect was that Karen’s impugned claims survived and would proceed to trial.

The motion for partial summary judgment

Mark’s partial summary judgment motion focused on narrowing or eliminating parts of Karen’s claim through the application of limitation periods. His position was that, as a matter of law, certain challenges to the prior will were out of time and should be dismissed without the need for a full trial. Karen opposed the motion, arguing both that the limitation issue was not so clear-cut as to be decided summarily and that the overall matter was not an appropriate candidate for partial summary judgment. Justice Nieckarz agreed with Karen on the procedural suitability of the motion. In the earlier decision (2025 ONSC 4652), the court concluded that the case did not lend itself to partial summary judgment and dismissed Mark’s motion. The decision left the pleaded claims in place to be determined at trial, including the limitation-period issues in their full factual and legal context.

Costs framework and governing principles

Following the dismissal of the partial summary judgment motion, the parties filed written submissions on costs. Karen sought her costs on a partial indemnity basis totalling $21,154.28, payable within 30 days, on the basis that she was entirely successful on the motion and that her costs were reasonable in light of the importance and complexity of the issues, the time spent in responding to the motion, and counsel’s experience. Mark argued that costs should either be left to the trial judge or be ordered in the cause. In the alternative, he contended that an award of $3,500 was appropriate. He said the rates charged by Toronto counsel were excessive for the Northwest Region and tendered his own Bill of Costs showing partial indemnity fees of $4,805.33 and total partial indemnity costs (fees, disbursements and HST) of $5,282.62. Justice Nieckarz began by setting out the governing framework for costs. Rule 57.03(1) of the Rules of Civil Procedure requires a judge to fix or assess costs of a motion and order them paid within 30 days unless a different order would be more just in the circumstances. Section 131(1) of the Courts of Justice Act confers a broad discretion in the trial or motions judge to award costs, guided by the factors in Rule 57.01. The court also reaffirmed the principle from Boucher v. Public Accountants Council that fixing costs is not a mechanical exercise of multiplying hours by rates. The overriding objective is to arrive at an amount that is fair and reasonable for the unsuccessful party to pay, consistent with access to justice.

Should costs be fixed now or left to the trial judge?

A key procedural issue was whether the costs of the unsuccessful partial summary judgment motion should be decided immediately or reserved to the trial judge or ordered in the cause. In the earlier endorsement, Justice Nieckarz had queried whether costs might best be left for the trial judge, but clarified in this decision that the earlier remark was only a query, not a ruling. Mark relied on Intercontinental Forest Products SA v. Rugo, where the court suggested that in the usual case where a trial is virtually certain, costs of an interlocutory injunction motion should often be left to the trial judge. However, Justice Nieckarz distinguished that authority, noting that it arose in the specific context of interlocutory injunctions and that its applicability to partial summary judgment motions was uncertain. The judge turned to Silver v. Imax Corporation, where Justice van Rensburg examined when it is appropriate to reserve costs for the trial judge and observed that costs in the cause are generally appropriate where the issues on the motion will be relitigated at trial, but that disposing of costs immediately after the motion is often preferable. She also noted that reserving costs may be suitable where the propriety of bringing the motion cannot be fairly assessed until the end of the case. Mark also cited Mittal v. Jindal, where Justice Perell ordered costs in the cause in circumstances where success on the motion was “technical” and it would not be fair for the winning party on the motion to receive costs unless they also succeeded at trial.

Risk of partial summary judgment and fairness considerations

Justice Nieckarz found the reasoning of Conlan J. in CIBC Investor Services Inc. v. Chan persuasive on the partial summary judgment context. In Chan, the moving party brought an unsuccessful motion for partial summary judgment and then asked that costs be payable in the cause. Justice Conlan held that while reserving costs was within the court’s discretion, it might not be the fairest outcome given the risk inherent in bringing a partial summary judgment motion in a climate where such motions are increasingly restricted by the jurisprudence. Applying that logic, Justice Nieckarz accepted that while Mark might ultimately succeed on the limitation issues at trial, the reality is that partial summary judgment motions in estate litigation are risky and costly. Mark chose to bring such a motion, fully aware of the constraints and risks. Karen incurred significant costs in responding, and much of that work would not be reusable at trial. In these circumstances, the judge concluded that it would not be more just to defer or reserve costs; instead, they should be fixed and ordered payable now in favour of the successful responding party.

Assessing the quantum of costs

Turning to quantum, Karen’s requested partial indemnity costs of $21,154.28 were carefully examined against the Boucher reasonableness standard and the Rule 57.01 factors. While the judge accepted that Karen had incurred these costs in good faith to successfully defend the motion, the amount was held not to be reasonable for the unsuccessful party to pay. The court examined the asserted complexity of the motion. Karen’s costs submissions described the motion as complicated and involving a novel limitation issue in one place, yet her amended costs outline stated that the proceeding was “not overly complex” and that the legal arguments were not novel, and her original outline had called the matter complex. Mark argued that the matter was not complex. Justice Nieckarz concluded that the motion was not factually complex and the materials were not voluminous, though there was some legal complexity in the limitation arguments. The judge also emphasized proportionality. This was a short motion, argued within a one-hour regular motions slot, based on short affidavits with no cross-examinations and relatively brief factums. Against that backdrop, the level of fees claimed raised concerns. A further key factor was the hourly rates. Although Karen’s counsel, Ms. Chen, did not expressly state her or her clerk’s hourly rates, Mark’s submissions suggested that Ms. Chen (a 2015 call) billed at $795 per hour, with her clerk at $395. The judge found that the lawyer’s rate exceeded $700 and the partial indemnity rate exceeded $400, and that both were well above rates usually seen in the Northwest Region. Citing St. Joseph’s Hospital v. Thunder Bay (City), Justice Nieckarz reiterated that while a client is free to retain counsel of their choosing, when fixing costs the court must look at hourly rates through the lens of what is reasonable for the paying party in their home region. Mark’s counsel, Mr. Lester (a 2013 call), billed at $345 per hour, which the court viewed as more consistent with local expectations. The court did not parse every time entry line by line, nor second-guess the work done, but noted that without a more detailed Bill of Costs from Karen, it was difficult to fully test the reasonableness of the hours claimed for a relatively short motion.

Outcome and costs award

Balancing all of these considerations, Justice Nieckarz fixed a substantially lower but still meaningful costs award than what Karen sought. The court held that a fair and reasonable amount, on a partial indemnity basis, for Mark to pay Karen for the unsuccessful partial summary judgment motion was $6,000. This award reflects Karen’s status as the entirely successful party on the motion while recognizing the limited complexity, short duration, and regional rate context of the proceeding. In the final order, the court directed that the Respondent, Mark Cebrowski, pay to the Applicant, Elvira Karen McNeil, costs in the amount of $6,000, payable within 30 days. No damages or other monetary relief were determined in this costs decision, and the only quantified monetary amount ordered in favour of the successful party is this $6,000 costs award.