Court File and Parties

Court File No.: 09-1479 (Hamilton)
Moser et al v Ahonpa et al
Court File No.: 11-25023 (Hamilton)

Date: 2012-03-02

Superior Court of Justice – Ontario

Re: Bonnie Smith, Applicant Court File No: 09-1479

And: Erkki Ahonpa, Michael Moser, Beryl Ann Rayner, Aloa Ahonpa and the Office of the Public Guardian and Trustee, Respondents

Re: Michael Moser and Beryl Rayner, Applicants Court File No: 11-25023

And: Erkki Ahonpa and The Office of the Public Guardian and Trustee, Respondents

Before: The Honourable Mr. Justice P. J. Flynn

Counsel:
Brad Wiseman, for the Applicant Bonnie Smith

Lianne J. Armstrong, for the Applicant Michael Moser

Mara Farmer, for The Office of the Public Guardian and Trustee

Ruling on Costs

[1] I asked for and got costs submissions from the Applicant Bonnie Smith, the Applicant Michael Moser and The Office of the Public Guardian and Trustee. At the conclusion of the hearing we had determined that there would be no costs submissions required from the subject of these proceedings, Erkki Ahonpa.

[2] It is evident that these parties are not finished their fight. Sometimes the court can’t do much after it has cursed the parties by calling for a pox on both their houses. Certainly neither Mr. Moser nor Ms. Smith come to court with perfectly clean hands. But the attitude of Mr. Ahonpa’s daughter Bonnie Smith is the most distressing and manifests the most harm to her own father. She would have her way no matter what.

[3] Mr. Moser on the one hand, seeks payment of legal fees from Erkki Ahonpa on a full indemnity basis in the sum of $6,469.25 inclusive of disbursements and HST. Then he seeks a total of $46,940.80, half of which from Mr. Ahonpa in the amount of $23,470.40, and finally, he asked for an order that if any of Bonnie Smith’s costs are ordered to be paid by Mr. Ahonpa, that that amount be paid instead to him as a set off against the amounts that Mr. Ahonpa is to pay him.

[4] Ms. Smith requests that she and Mr. Moser bear their own costs, and that Mr. Ahonpa bear only the cost of Mr. Moser’s accounting in the amount of $6,469.25, the costs of the Capacity Assessment in the amount of $1.508.55 and Mr. Cunningham’s costs, as agreed upon by the Public Guardian and Trustee or as assessed.

[5] Now, the matter of Mr. Cunningham’s costs is between the Public Guardian and Trustee and Mr. Cunningham and will not form part of my ruling.

[6] The Public Guardian and Trustee takes the following position:

a. Mr. Moser and Ms. Smith should bear their own legal costs and in that the Public Guardian and Trustee adopts Ms. Smith’s submissions;

b. the costs of the Capacity Assessment in the amount of $1,08.55 should be payable to Ms. Smith from the estate of Errki Ahonpa

[7] In the alternative, the Public Guardian and Trustee submits that the costs claimed by Mr. Moser are excessive and ought not to be payable on a full indemnity basis but ought to be fixed under general principles of estate litigation, in light of the quantum of the estate, the benefit conferred upon the incapable person and in light of the misconduct on the part Mr. Moser that contributed to the escalation of his costs.

[8] While there has been a benefit conferred on Mr. Ahonpa as a result of this litigation, in that his finances are being dealt with in a responsible fashion by the office of the Public Guardian and Trustee, that Mr. Moser was now appointed Guardian of Personal Care along with his wife, and that he is receiving companionship from his grandson and his grandson’s wife, nonetheless there have been substantial negative impacts on Mr. Anhonpa.

[9] Bonnie Smith and various persons on “her side” have been permanently alienated from Mr. Ahonpa’s life. Instead of being surrounded by family focused on him and setting aside their differences, Mr. Ahonpa has been exposed, as the Public Guardian and Trustee says, in the twilight of his life to the turmoil and angst of litigation. I agree with Public Guardian and Trustee that both parties have significant responsibility to bear for this.

[10] This case involved a very limited estate. Mr. Ahonpa receives monthly income consisting of Old Age Security, Canada Pension Plan, Guaranteed Income Supplement, Veteran’s Affairs Pension, Veteran’s Independence Program Benefits and RBC Dexia Pension. From this he has to satisfy the monthly retirement home cost of $2,952 and some personal needs including telephone costs.

[11] The Public Guardian and Trustee has received the real estate funds held by the lawyer in the amount of approximately $54,000 and currently holds about $58,000.

[12] There were only two half day court appearances.

[13] The account rendered by Mr. Moser is excessive in the extreme. There ought to be a sense of proportionality in costs claims like these. And there aren’t.

[14] While Bonnie Smith’s submits that substantial costs were incurred on her behalf by Mr. Moser’s harassment and other actions and that Mr. Moser’s actions further inflamed the passions of this litigation, it is clear to me that Ms. Smith’s dogged determination to do not only what she wanted but what made no sense has escalated the costs of this litigation beyond belief. And for that she should bear a portion of Mr. Moser’s costs. She prolonged the litigation. She failed to come to any compromise solution that would contain further legal costs. She was not at all realistic with respect to the difficulties present in the facts of her situation which in the main consisted of her geographic distance from Mr. Ahonpa and her very real alienation from him.

[15] Parties in estate litigation involving an incapable person should not expect as a matter of course that their legal costs will be borne by the estate of that incapable person.

[16] As I said before, and it bears repeating, there should be a sense of proportionality in the costs claimed.

[17] The conduct of the parties must be evaluated in determining those costs. In order to show the court’s displeasure with the conduct of Ms. Smith in the way that this litigation was conducted without absolving Mr. Moser at all, I have determined that the parties should bear their own costs, except that Ms. Smith be ordered to pay $10,000 to Mr. Moser. I also agree that the cost of the Capacity Assessment in the amount of $1,508.55 be payable to Ms. Smith from the estate of Erkki Ahonpa.

P. J. Flynn J.

Date: March 2, 2012