Court File and Parties

Court of Appeal for Ontario Date: 20221115 Docket: C70603

Paciocco, George and Favreau JJ.A.

Between

Domenica Klim, Andrew Klim and Julia Klim Plaintiffs (Appellants)

and

Johny Andrew Klim and Jeffrey Michel MacDonald Defendants (Respondents)

Counsel: Ronald N. Brady, for the appellants Richard C. Corbett, for the respondents

Heard: November 7, 2022

On appeal from the order of Justice James A. Ramsay of the Superior Court of Justice, dated April 6, 2022.

Reasons for Decision

[1] This is an appeal from the motion judge’s decision to dismiss the appellants’ action for damages arising from allegedly improper transactions undertaken by the respondents while administering the estate of Michael Klim (“Michael”). The appellants raise three grounds of appeal: the motion judge erred 1) in his credibility assessment; 2) by relying on inadmissible hearsay; and 3) by finding that the respondents could act as attorneys under a Power of Attorney (“POA”) while Michael was still capable.

[2] We reject each of these grounds. We see no reason to interfere with the motion judge’s credibility findings, which attract a high degree of deference. His findings were available to him and well supported by the evidence. Further, the motion judge did not, as alleged by the appellants, rely on inadmissible hearsay evidence. What he did was make determinations about the nature of the relationship between Michael and his children (the appellants Andrew and Julia Klim) based on firsthand observations by the respondents and other witnesses, including evidence that Andrew did not have a good relationship with his father nor attend his funeral. Lastly, the motion judge properly concluded that the respondents were authorized to act as Michael’s attorney before his incapacity, which aligns with the language used in the standard form POA. In this case, Michael’s POA was not subject to any conditions or restrictions, nor was its effective date postponed.

[3] We note that the motion judge awarded full indemnity costs to the respondents. He wrote that “[p]artial indemnity is the norm unless there is some form of reprehensible conduct, either in the circumstances giving rise to the cause of action, or in the proceedings, which makes costs desirable as a form of chastisement”, ultimately concluding that the appellants’ “frivolous allegations that the defendants were involved in serious criminal conduct” warranted full indemnity costs. In our view, given the appellants’ insistence on maintaining that untenable position on appeal, full indemnity costs are warranted here as well.

[4] The appeal is dismissed. Costs to the respondents in the all-inclusive amount of $27,000.

“David M. Paciocco J.A.”

“J. George J.A.”

“L. Favreau J.A.”