Johnson v. Marzouca

Ontario Reports

Court of Appeal for Ontario,

Weiler, Cronk and Benotto JJ.A.

April 22, 2016

130 O.R. (3d) 795 | 2016 ONCA 298

Case Summary

Wills and estates — Costs — Appellant applying unsuccessfully for declaratory relief concerning her aunt's estate and respondent's role under power of attorney — Appellant making serious allegations of fraud and wrongdoing which were either abandoned or not established — Conduct of appellant's counsel unnecessarily lengthening hearing — Award of costs to respondent in amount of $8,000 affirmed on appeal.

Wills and estates — Remedies — Appellant applying unsuccessfully under rule 14.05 of Rules of Civil Procedure for declaratory relief concerning her aunt's estate and respondent's role under power of attorney — Application judge not basing dismissal of application on appellant's failure to move under Rule 74 to be appointed estate trustee without will of her aunt's estate but simply noting correctly that Rule 74 route was available to challenge propriety of respondent's actions under power of attorney — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 14.05, 74.

The appellant applied under rule 14.05 of the Rules of Civil Procedure for declaratory relief concerning the estate of her aunt, who died intestate, and with respect to the respondent's role under a power of attorney granted to him by [page796] the deceased. The application was dismissed, and the appellant was ordered to pay the respondent costs in the amount of $8,000. The appellant appealed.

Held, the appeal should be dismissed.

The application judge did not dismiss the application on the basis that the appellant had failed to apply under Rule 74 to be appointed estate trustee without will of the deceased's estate, but simply noted, correctly, that the Rule 74 procedural route was available if the propriety of the respondent's actions under the power of attorney was to be challenged.

The appellant made allegations of fraud and serious wrongdoing against the respondent that were either abandoned or not substantiated at the hearing. Moreover, the application judge concluded that the conduct of the hearing by the appellant's counsel had unnecessarily lengthened the duration of the hearing and that the respondent was entirely successful. The costs award was not unreasonable or disproportionate.

Statutes referred to

Substitute Decisions Act, 1992, S.O. 1992, c. 30 [as am.]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 14.05, 57.01, 74

APPEAL from the judgment of Woollcombe J. of the Superior Court of Justice dated May 26, 2015.

Matthew Tubie, for appellant.

David Campbell, for respondent.

[1] Endorsement BY THE COURT: -- The appellant is the sole surviving relative of her aunt, Mary Simpson, who died intestate on March 6, 2014 at 87 years of age. Following her aunt's death, the appellant applied under rule 14.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rules") for various declaratory relief concerning her aunt's estate, including with respect to the respondent's role, for a brief time, under a power of attorney granted to him by the deceased. In her application, the appellant alleged, among other things, that the power of attorney held by the respondent was obtained by fraud and, further, that he had no lawful authority to be designated by the deceased as the beneficiary of her life insurance policy. The appellant also sought an accounting from the respondent of his activities under the power of attorney and of how the money collected under the deceased's life insurance policy had been used.

[2] Before this court, the appellant maintains that at the hearing of the application, she narrowed the relief sought, seeking only an accounting from the respondent and a declaration that she had a vested interest in the deceased's estate and life insurance policy. [page797]

[3] The application was originally scheduled for a 30-minute hearing. In the event, almost one-full day of court hearing time was required to complete argument of the application. After hearing submissions from both parties, the application judge dismissed the application and awarded costs to the respondent in the amount of $8,000.

[4] The appellant appeals. She argues in her factum that the application judge erred (i) by dismissing the application on the basis that the appellant had failed to apply for relief under Rule 74 of the Rules, rather than rule 14.05; (ii) by relying on evidence that was not properly before her; (iii) by concluding that the appellant lacked standing to bring the application; and (iv) by awarding costs in favour of the respondent.

[5] We conclude that the appeal must be dismissed.

[6] Contrary to the appellant's contention, the application judge did not base her dismissal of the application on the fact that the appellant had not moved for relief under Rule 74 to be appointed estate trustee, without a will, of her aunt's estate. Nor did she make any ruling that the appellant lacked standing to bring her application. Rather, the application judge noted that the Rule 74 procedural route is available if the propriety of the respondent's actions under the power of attorney granted to him by the deceased is to be challenged.

[7] The application judge did not err in her comments regarding the availability of Rule 74. There were several routes available to the appellant -- under the Rules and the Substitute Decisions Act, 1992, S.O. 1992, c. 30 -- to seek relief regarding her aunt's estate and an accounting from the respondent. She has failed to date to pursue these options.

[8] The application judge found that

(1) after the respondent received the power of attorney from the deceased, he assisted her with her medical appointments and care conferences at the nursing home in which she lived, and paid her bills;

(2) the respondent paid for the deceased's funeral expenses from the proceeds of the insurance policy of which he had been made beneficiary. These expenses exceeded the value of the proceeds under the life insurance policy;

(3) the respondent had not claimed to be the deceased's next of kin, nor had he made any claim on her estate;

(4) there was no evidence to support the claims that the deceased did not have the required mental capacity to increase her life insurance or that the respondent had no [page798] lawful authority to become the beneficiary of the insurance policy in question;

(5) there was no evidentiary basis for a claim of fraud;

(6) the respondent had provided an accounting of the insurance proceeds under the policy. (We note, in any event, that the policy did not form part of the deceased's estate); and

(7) there was no basis to declare that the respondent's exercise of the power of attorney was ineffective and void.

[9] We see no error in these findings. They were available to the application judge on the record before her.

[10] At the appeal hearing, the appellant also challenged the fairness of the hearing before the application judge. This challenge fails.

[11] The transcript reveals no unfairness to the appellant at the application hearing, nor any impediment, caused by the application judge, to her opportunity to fully argue the application. To the contrary, the transcript confirms that the application judge extended every accommodation to the appellant's counsel notwithstanding that he had grossly understated the time required for the hearing, was double-booked in another court, returned late to the Superior Court after the matter was held down to accommodate his conflicting court appearances, advanced arguments not set out in the appellant's notice of application and sought to file a supplementary affidavit by the appellant without proper notice or service. We note that, notwithstanding these difficulties, the application judge afforded the appellant an opportunity to file additional written materials and the appellant did so.

[12] We also see nothing in the record to support the claim that the application judge relied on evidence that was not properly before her.

[13] Finally, the application judge's discretionary costs award attracts deference from this court. Unless it is demonstrated that the award is tainted by an error in principle or that it is plainly wrong, there is no basis for appellate intervention with the award.

[14] In this case, the appellant made allegations of fraud and serious wrongdoing against the respondent that were either abandoned or not substantiated at the hearing of the application; the application judge concluded that the conduct of the hearing by the appellant's counsel lengthened unnecessarily the duration of the hearing, leading to increased costs; and the [page799] respondent was entirely successful on the application. These were proper and necessary considerations in the fixing of costs under rule 57.01 of the Rules. In the circumstances, we see nothing unreasonable or disproportionate in the application judge's costs award.

[15] For the reasons given, the appeal is dismissed. Pro Bono Law Ontario assisted the respondent with this appeal. Counsel's submissions on behalf of the respondent were helpful to the court. The respondent is entitled to his costs of the appeal, fixed, as requested, in the modest amount of $1,000 to reflect only disbursements and all applicable taxes.

Appeal dismissed.

End of Document