Calculating compensation for Estate Trustee During Litigation
Compensation is a factor in every estates file. The Divisional Court recently confirmed in Church v. Gerlach (2009) Court File No.: DC-07-0038-00 (Div.Ct.) that compensation for an estate trustee during litigation ("ETDL") is determined by the same principles as compensation for executors generally. Compensation for an ETDL is not determined by applying a solicitor's hourly rate to the time spent.
In Church v. Gerlach, the ETDL was appealing the trial judge's fixing of compensation at $13,000 inclusive of GST. The ETDL asked for $23,203,54 plus costs. The ETDL had originally claimed $35,805.30 plus $2,973.30 for the costs of the application.
The general provision authorizing compensation to ETDLs is s. 28 of the Estates Act: the ETDL "shall receive out of the property of the deceased such reasonable compensation as the court considers proper". Section 61 of the Trustees Act authorizes "such fair and reasonable allowance for the care, pains and trouble, and the time expended in and about the estate, as may be allowed by a judge of the Superior Court of Justice."
According to Ontario's Court of Appeal in Liang Estate v. Hines (1998) CanLII 6867 (ON C.A.), 41 O.R. (3d) 571, the proper approach is to start by applying percentages to the estate (customarily 2.5% of capital receipts and disbursements, 2.5% of income receipts and disbursements, and an annual care and management fee of 0.4% of gross value of the estate). Then, each percentage is considered against five factors enumerated in Re Toronto General Trusts Corporation and Central Ontario Railway (1905), 6 O.W.N. 350 (H.C.):
1. the magnitude of the trust;
2. the care and responsibility springing therefrom;
3. the time occupied in performing its duties;
4. the skill and ability diplayed; and
5. the success which has attended its administration.
Applying this approach, the ETDL was awarded half of the usual percentages: he ought not to be fully compensated as if he was required to perform all of the functions of an Estate Trustee, and the reduction also took into account the complexity of the estate.
As a general practice note on costs of appeals, while the ETDL had paid his lawyer more than $15,000 to prepare the appeal, given the amount in dispute, the relatively simple issues on appeal and the reasonable expectation of the appellant ETDL, costs were fixed at $5,000 all-inclusive.
The Divisional Court also noted that the standard of review for appeals under s. 10 of the Estates Act on a question of law is correctness.
Have a great day,
Chris Graham
