COURT FILE NO.: CV-10-407304

DATE: 20120501

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: GIOVANNA NICOLETTI, Applicant

AND:

VITTORIA NICOLETTI, by her litigation guardian, the Public Guardian and Trustee, PIETRO NICOLETTI and BRUNA NICOLETTI, (aka GUIDO), Respondents

BEFORE: MATLOW, J.

COUNSEL:
Tony N. Nguyen, for the Applicant

Yeon-Tae Kim, for the Litigation Guardian

Pietro Nicoletti in person

Bruna Nicoletti, in person

HEARD: March 11, 2011 to February 7, 2012

costs ENDORSEMENT

Background

[ 1 ] This endorsement addresses claims for costs in relation to no fewer than eleven appearances that took place before me on an interim motion between March 11, 2011 and February 7, 2012.

[ 2 ] I will refer, for the sake of brevity, to the parties whose surname is ÒNicolettiÓ by their respective given names. Giovanna, Pietro and Bruna are the adult children of Vittoria who is of advanced years and a person under disability to whom Rule 7 applies.

[ 3 ] The appearances were in response to a motion made by Giovanna, within a pending application that she had commenced that had already precipitated prior attendances before other judges of this court. In her motion Giovanna made various allegations of wrongdoing on the part of Bruna in relation to her care of Vittoria and her handling of VittoriaÕs financial affairs and sought an order finding Bruna in contempt of prior orders and granting various items of interim relief.

[ 4 ] The motion proceeded in the midst of an ongoing feud between Giovanna and Bruna in which Pietro took no overt part. Giovanna has been represented by Mr. Nguyen throughout the period when the motion was before me. Bruna was initially represented by counsel but, at an early stage, she discharged him and has since been self-represented. In April, 2011, I appointed the PGT to act as litigation guardian of Vittoria, the person who was most directly affected by this proceeding but who had not previously been represented by counsel.

[ 5 ] It became evident to me soon after the early appearances that the motion was about to turn into an extremely costly and destructive exercise for the parties and, like in most family disputes, it would be in the best interests of all parties, especially Vittoria, if a settlement of all of the issues in the pending application could be reached. It was my hope that, even if the sibling relationships might not be repairable, the hostilities might still be reduced and the siblings might be able to devote their attention, and what remained of their and VittoriaÕs assets, to Vittoria. All of the parties appeared to support my initiative and, over the ensuing ten month period, extensive efforts were made by counsel, working with Bruna, to promote a settlement. Those efforts, despite valiant efforts by Mr. Nguyen and Mr. Kim, were not successful and, as a result, in my order of December 19, 2011, I directed that the time had come to take a different course.

[ 6 ] In that order, for which a detailed written endorsement was released, I set out an interim regime that would govern the conduct of the parties in relation to the matters in dispute and I provided that the application, and this motion, be transferred to the Estates List for continuation. My order also provided that I would no longer be seized of this matter except that I would, on request, hear costs submissions Òrelating to the various steps taken in this application before meÓ. Pursuant to requests made, I subsequently fixed February 7, 2012, for a hearing with respect to costs and directed that materials, including costs outlines and bills of costs, be delivered.

Claims for costs

[ 7 ] The following are the claims for costs that were made. The amounts claimed all included a provision for HST.

〈 Giovanna claimed a total of $36,794.38, on a substantial indemnity basis or, in the alternative, $27,090.38, on a partial indemnity basis, both inclusive of disbursements of $694.38.

〈 Bruna claimed a total of $94,933.00, without specifying the basis, inclusive of disbursements of $3,905.57.

〈 The PGT claimed $8,398.73 on a partial indemnity basis. No separate claim for disbursements was made.

Analysis

[ 8 ] My order of December 19, 2011, should be viewed as my last disposition of the same motion that came before me from time to time as described above. That motion may well proceed further in the Estates List.

[ 9 ] Pursuant to my order, Vittoria continues to reside with Giovanna and remains under her care. The provisions of my order seem to have provided a workable framework for the care of Vittoria, the management of her financial affairs and a truce between the feuding sisters. They may even provide the basis for a final settlement at some time in the future.

[ 10 ] It is noteworthy that Vittoria is a respondent in these proceedings and that no claim has been asserted by her or on her behalf.

[ 11 ] Nevertheless, Giovanna had ample justification to seek the intervention of the court and no objection was raised about her standing to do so. She, and her counsel, acted reasonably throughout. I am satisfied that Giovanna genuinely wished to protect Vittoria from what she perceived, with some justification, as wrongful conduct on the part of Bruna and to safeguard the flow of funds necessary for VittoriaÕs ongoing care. She has incurred substantial legal costs and has taken on direct responsibility for VittoriaÕs care. She was also amenable, on at least three occasions, to various settlements that would have resolved all outstanding issues. I am persuaded that Giovanna should be given an award of costs.

[ 12 ] Although I have not made any findings of contempt against Bruna, there is substantial evidence that she repeatedly failed to comply with the orders made and undertakings given by her. Throughout, she repeatedly displayed her articulated desire to be seen by others as the victor in this litigation regardless of the consequences of that approach. When, shortly after this motion was brought, her lawyer recommended a settlement which Giovanna had already accepted, she disavowed it and discharged him. On two subsequent occasions, while acting on her own behalf, she expressed her consent in open court to settlements that Giovanna had accepted and stated unequivocally that she would sign minutes of settlement after they were prepared. However, after Mr. Nguyen and Mr. Kim prepared the minutes of settlement, she disavowed them too and raised new clearly unreasonable issues to justify scuttling those efforts. As a result, many hours of work performed by Mr. Nguyen and Mr. Kim, for which substantial costs were incurred by Giovanna and the PGT, were wasted. Bruna continues to be unrealistic, unreachable and perhaps uncontrollable and, even in making her outlandish claim for costs, she continues on her own fantasy path motivated mainly by self-interest, vanity and hostility toward Giovanna. There is no good reason why Bruna should be given any award of costs.

[ 13 ] The Public Guardian and Trustee, and its lawyer, Mr. Kim, have provided an important service to Vittoria and much assistance to the court for which I am grateful. I am satisfied that the PGT should be given awards of costs for the amount claimed against both protagonists in fair and appropriate proportions.

[ 14 ] There are several unusual circumstances that I must bear in mind in making my awards of costs. It is impossible to predict whether or not this motion will proceed further when it reaches the Estates List. Although my final order effectively disposed of many of the issues raised in this motion, it did not dispose of all of them. The issue of contempt, which still remains to be determined, is one example.

[ 15 ] Although my order was very much in favour of the positions advanced by Giovanna and adverse to BrunaÕs, it would be wrong to blindly apply the general rule that the costs should follow the event. However, I cannot ignore BrunaÕs conduct throughout this proceeding, particularly her repeated pattern of consenting to proposed settlements and then disavowing them. Her pattern of conduct shows that she did not litigate or negotiate in good faith. Were it not for BrunaÕs unreasonable conduct, an early settlement would almost certainly have been achieved and the required participation of the PGT would likely have been minimal. Bruna should not be permitted to obstruct as she has with impunity. Nor should Giovanna be required to shoulder the financial burden of this proceeding without some interim contribution from Bruna.

Dispositions

[ 16 ] For the reasons set out above, I make the following interim orders with respect to costs. It is my intention to provide, except with respect to the award to the PGT, for their modification, as may be appropriate, by a judge presiding in the Estates List. The possibility that modification does not extend the time for payment but any payment made will be subject to any modification that might later occur.

〈 Giovanna shall be entitled to recover costs, fixed at $10,000.00, from Bruna, payable within one month from the date of the release of this endorsement.

〈 Bruna shall not be entitled to recover any costs.

〈 The PGT shall be entitled to recover costs, fixed at $6,000.00 from Bruna, plus costs, fixed at $2,398.73, from Giovanna, both payable within one month from the date of the release of this endorsement.

Matlow, J.

Date: May 1, 2012.