Court of Appeal for Ontario
Date: 20240126 Docket: COA-23-CV-0244
Judges: Roberts, Paciocco and Monahan JJ.A.
Between:
Bill Vrantsidis and Mary Vrantsidis in their capacities as co-attorneys for property and personal care of Alpida Vrantsidis Applicants (Respondents)
And:
John Vrantsidis* in his capacity as co-attorney for property and personal care for Alpida Vrantsidis and in his personal capacity, Alpida Vrantsidis and the Office of the Public Guardian and Trustee Respondents (Appellant*)
And Between:
John Vrantsidis in his capacity as co-attorney for property and personal care of Alpida Vrantsidis Applicant (Appellant)
And:
Bill Vrantsidis and Mary Vrantsidis in their capacities as co-attorneys for property and personal care of Alpida Vrantsidis, Alpida Vrantsidis, and the Office of the Public Guardian and Trustee Respondents (Respondents)
Counsel:
Jacob R.W. Damstra and Kimberly A. Cura, for the appellant Robert Levesque, for the respondents Matthew Urback, Section 3 counsel for Alpida Vrantsidis
Heard: December 14, 2023
On appeal from the judgment of Justice Bernadette Dietrich of the Superior Court of Justice, dated January 23, 2023, with reasons reported at 2023 ONSC 321, and the costs order, dated March 13, 2023.
Reasons for Decision
[1]
Overview
These proceedings arise out of a dispute among three siblings, the appellant and the two respondents, concerning the care of their nonagenarian mother, Alpida Vrantsidis. Following the appellant’s submissions, we dismissed the appeal with reasons to follow. These are our reasons.
2The appellant has lived with Mrs. Vrantsidis for over 20 years. He is her primary caregiver. The respondents questioned the appellant’s handling of their mother’s property and personal care. They were also concerned about their mother’s deteriorating cognitive state. They brought an application seeking, among other things, a declaration of validity of the April 12, 1995 powers of attorney for property and personal care executed by Mrs. Vrantsidis, which appointed her three children as her attorneys. The respondents also sought a declaration that the appellant held the sum of $61,000 on a resulting trust for Mrs. Vrantsidis.
3The appellant opposed the respondents’ application, filed responding materials, and launched a counter-application in which he requested an accounting of respondent Bill Vrantsidis’ dealings with their mother’s bank accounts and an order removing his siblings as attorneys or, alternatively, setting aside the 1995 powers of attorney. The appellant also sought an order appointing him as his mother’s guardian for property and personal care.
4The application judge declared that Mrs. Vrantsidis was a person incapable of managing her property and personal care and that the 1995 powers of attorney for property and personal care are valid and enforceable, including the provision that in the event of a disagreement among the three attorneys, a decision of any two of them is binding. She therefore allowed the respondents’ application and dismissed the appellant’s counter-application. The application judge further ordered that the appellant account for the sum of $61,000 received from Mrs. Vrantsidis on the basis that he held those funds on a resulting trust.
5In her March 13, 2023 costs endorsement, the application judge ordered that the appellant pay, within 30 days, the respondents’ partial indemnity costs in the amount of $66,200 and Mrs. Vrantsidis’ s. 3 counsel’s partial indemnity costs in the amount of $18,000. She ordered that the balance of the respondents’ full indemnity costs in the amount of $43,572.60 [1] are a charge on Mrs. Vrantsidis’ estate and shall be paid after her death, and that the balance of s. 3 counsel’s full indemnity costs in the amount of $9,232.60 be paid by Mrs. Vrantsidis within 30 days.
6The appellant appeals the application judge’s judgment and seeks leave to appeal her costs order. He submits that a new hearing is required because he was denied procedural fairness in three interrelated and compounded ways: (1) the application judge erred by determining the respondent’s application without considering the appellant’s responding application record; (2) the application judge denied his reasonable request for an adjournment upon his counsel getting off the record; and (3) the application judge dismissed the entirety of the appellant’s counter-application despite having said that she would not determine his application to order Mary Vrantsidis to provide an accounting for monies received, or his guardianship application. He submits that the costs order was infected by the same procedural unfairness and should be set aside. He also argues that the application judge erred, contrary to s. 3(2) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, by ordering him to pay the costs of s. 3 counsel.
7We are not persuaded that the application judge made any reversible error or that the appellant was subjected to any procedural unfairness.
[8]
Analysis
First, we reject the submission that the application judge failed to consider the appellant’s responding materials. There are too many indications to the contrary. For example, the transcript excerpt in the appeal book shows that respondents’ counsel referenced the appellant’s responding affidavit during submissions, and the application judge refers to the appellant’s evidence from his responding affidavit in paragraph 24 of her reasons. We do not read the isolated passages from the application judge’s reasons as assertions by her that the appellant did not file responding materials or as demonstrating that she was either unaware of or disregarded the appellant’s responding affidavit. In those impugned passages, the application judge merely indicates, correctly in our view, that the appellant has failed to directly and successfully counter the evidence and the arguments that she was entitled to accept.
9Second, the application judge did not err in the exercise of her discretion to refuse the appellant’s request for an adjournment. She properly balanced the relevant factors and the parties’ competing interests. The appellant is a trained lawyer who formerly practiced law but is now retired. There is no indication that he was prejudiced by proceeding with the hearing without counsel. Importantly, the application judge found that any further delay would continue the ongoing prejudice to the parties’ mother, including the denial of health care services, due to the ongoing litigation surrounding the 1995 powers of attorney.
10Finally, there was no procedural unfairness in the application judge’s dismissal of the appellant’s entire counter-application. The application and counter-application were intertwined and concerned the same questions relating to Mrs. Vrantsidis’ capacity, the care and management of her property and personal care, and the propriety of each of the siblings’ actions in relation to her property and personal care. The appellant’s affidavit evidence in his counter-application contains many of the same allegations as, and refers to, his responding affidavit evidence on the respondents’ application. Similarly, the appellant’s submissions before the application judge covered the critical issues in both the application and counter-application. In granting the application, the application judge necessarily had to adjudicate on identical and interrelated issues raised in the counter-application. There was nothing left to decide in the counter-application which was in substance rendered moot by the application judge’s determination of the issues on the application.
[11]
Costs
With respect to costs, the appellant has not met the high onus for leave to appeal the application judge’s discretionary costs award. As already indicated, we reject his argument that the application judge failed to consider his responding application record. Her determination that “the positions that [the appellant] took in the litigation regarding the 1995 Powers of Attorney, the management of Mrs. Vrantsidis’ property, and her care needs were not reasonable” is grounded in the record.
12Moreover, it was within her discretion to order the appellant to pay part of those costs: see e.g., Childs v. Childs, 2017 ONCA 516, at paras. 101-104, leave to appeal refused, [2017] S.C.C.A. No. 414. Section 3(2) of the Substitute Decisions Act does not provide otherwise. In declaring that the person who has received legal representation pursuant to s. 3(1)(a) is “responsible for legal fees”, s. 3(2) addresses responsibility for legal costs as between a solicitor and a client not eligible for legal aid but does not purport to define or limit responsibility for party and party costs after litigation. Nor does it fetter the court’s exercise of its discretion to make an appropriate costs order under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Although Mrs. Vrantsidis is responsible for the legal fees pursuant to s. 3(2) of the Substitute Decisions Act, she is entitled to the benefit of the costs order made after litigation in her favour to assist in paying those costs. The trial judge reasonably exercised her discretion in the circumstances of this case.
[13]
Disposition
Accordingly, the appeal is dismissed. Leave to appeal costs is denied.
14The respondents are entitled to their all-inclusive costs of the appeal in the amount of $16,000 payable by the appellant, with the balance of $10,000 as a charge on Mrs. Vrantsidis’ estate, payable after her death. Section 3 counsel is entitled to his costs in the amount of $7,583, all inclusive, from the appellant. These costs are reasonable, fair and proportionate, and should have been within the appellant’s contemplation if unsuccessful on the appeal.
“L.B. Roberts J.A.” “David M. Paciocco J.A.” “P.J. Monahan J.A.”
1The order states the costs are in the amount of $43,572.60; in the reasons, the application judge states the costs are $43,572.67. Nothing turns on this difference.