Brad J. Wiseman

The court reconsidered a prior costs decision following late submissions from the respondent.

The issue was whether costs could be ordered personally against the respondent when the notice of application had requested costs only from the incapable person.

The court held that no prejudice arose because the respondent had ample notice throughout the proceedings that personal costs were in issue, including through settlement offers and prior court appearances where costs were reserved.

Emphasizing the principle that costs follow the result and that family members assisting an incapable person should not bear all litigation risk, the court confirmed that a costs order against the respondent was permissible as ancillary relief.

The earlier costs order was therefore affirmed.

Following a successful guardianship application brought for the benefit of an incapable person, the applicant sought costs against the respondent.

The court noted that the incapable person had no meaningful estate from which costs could be recovered, despite benefiting from the proceeding.

The respondent’s conduct during the litigation, including perjury in cross-examination that risked exposing the incapable person to harm, unnecessarily increased the cost of the proceedings.

Applying the principle that costs follow the event and referencing the recognized range for such proceedings, the court ordered costs on a substantial indemnity basis.

Costs were fixed at $30,500 all inclusive.

The court reconsidered a prior costs decision after receiving late submissions from counsel for the respondent.

The issue concerned whether the court had jurisdiction to order costs against the respondent when the notice of application had requested costs only against an incapable person.

The court permitted the applicant to file written submissions addressing the jurisdictional issue within 15 days.

The endorsement dealt solely with the procedural reconsideration of the costs determination.

Competing applications were brought under the Substitute Decisions Act, 1992 for guardianship of the person and property of an incapable adult with cerebral palsy and significant cognitive impairment.

The niece sought appointment as guardian while the incapable person’s sister filed a competing application.

Although both parties had historically assisted with the incapable person’s care and finances, the court found the relationship between the parties had irreparably broken down.

Evidence showed the respondent’s husband had engaged in sexual contact with the incapable person and the respondent attempted to conceal the incident.

The court held that this circumstance made the respondent unsuitable as guardian and that the applicant represented the reasonable alternative in the incapable person’s best interests.