Amended - CITATION : Olivieri et al v. Colangelo et al, 2012 ONSC 3549

COURT FILE NO.: 09-10688
DATE: 2012/06/20

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Dr. Nancy Olivieri , Ann (Olivieri) Morgan and Victoria Olivieri

Applicants

and

Joseph Colangelo, Dr. Fernando Olivieri, The Public Guardian and TRUSTEE on behalf of Dr. Fernando Olivieri, incapable within the meaning of the Substitute Decisions Act. 1992 S.O. c. 30 as amended, MARGOT OLIVIERI, SARAH ELLEN (OLIVIERI) FEJTEK and JULIE (OLIVIERI) MURRAY

Respondents

BEFORE: Turnbull, J.

COUNSEL:
Jerome Morse and Asher Honickman, Counsel, for the applicants

Chris Dockrill, Counsel, for the respondent Joseph Colangelo and the Estate of the late Dr. Fernando Olivieri, Margot Olivieri, Sarah Ellen (Olivieri) Fejtek and Julie (Olivieri) Murray

Mark Castle: Counsel for the respondent Victoria Olivieri.

HEARD: December 6 th and 17th, 2011, and January 16th, 2012

ENDORSEMENT

Motion #1 . 2
Overview of the Relationship of the Parties . 3
Overview of the Chronology of Events . 5
Position of the Applicants . 8
Position of the Respondents . 9
The Law .. 10
Analysis . 11
Conclusion . 14
Motion #2 . 14
Motion of Mr. Colangelo for Legal Costs . 14
Position of the Applicants: 15
Issue #1: Does the court have jurisdiction to award the costs once the applicants were relieved of their duties as Guardians of the Person. Is the court limited to awarding costs within the costs mechanism under the order dated March 8, 2011? . 16
Issue #2: Were the Costs Incurred as a result of contentious proceedings? . 17
Issue #3: Did Mr. Colangelo’s behaviour contribute to the necessity for protracted legal proceedings? 17
Issue #4: Was the work and time incurred related to contentious legal proceedings or was some of that time related to duties he would have performed as Guardian of Property and Guardian of the Person in any event? . 19
Issue #5: Are the costs claimed Reasonable? . 19
Guardianship Fees Claimed by Mr. Colangelo . 19
Costs Sought by Mr. Colangelo to Retain and Instruct Counsel 20
Issue #6: Who should pay the costs assessed? . 21
Conclusion re Motion #2 . 21
Motion #3: Costs of Victoria Olivieri 22
Motion #4: Approval of Accounts of Guardian of the Property . 22
Costs of Arguing these Motions . 22

Turnbull, J. 22

[ 1 ] There are four motions before the court. I will deal with them in the same order as they were presented so ably by counsel.

Motion #1

[ 2 ] The applicants Dr. Nancy Olivieri (Nancy) and Ann Morgan (Ann) have brought a motion seeking their costs of these proceedings from the month of November 2010, when their present counsel became solicitors of record for them, until March 8, 2011, when the applicants Nancy and Ann ceased to be Guardians of the Person of the late Dr. Fernando Olivieri (Fernando).

[ 3 ] The costs sought were summarized in a Costs Outline provided to the court by Mr. Morse which can be summarized as follows:

a. Fees to March 8, 2011 (partial indemnity) $89,000.00
b. HST on fees at 13% $11,500.00
c. Fees for appearance to argue this motion $ 5,000.00
d. Disbursements $ 9,950.00
e. HST on disbursements $ 1,293.58

Total Claimed from Estate $116,743.58

[ 4 ] The respondents vigorously opposed the payment of any of these costs or disbursements.

Overview of the Relationship of the Parties

[ 5 ] The late Fernando died in August 2011. He had been married to the applicant Victoria Olivieri (Victoria) for approximately 60 years at the time of his death. Though she is named as an applicant in the style of cause, she has been opposed in interest to her co-applicants and hence, I shall refer to her as a respondent in these reasons.

[ 6 ] Fernando and Victoria had five daughters: the two applicants Nancy and Ann and the respondents Margot Olivieri (Margot), Sarah Ellen Fejtek (Sarah) and Julie Murray (Julie).

[ 7 ] Nancy is a medical doctor practicing in Toronto and is a specialist in haematology. Her late father Fernando was a well respected paediatrician who practiced in the City of Hamilton.

[ 8 ] On December 16, 2006, Victoria, Nancy and Ann were appointed as the Co-Guardians for Property and Personal Care by Fernando. Over the next few years, his health deteriorated and in the process, so did the relationship between his Co-Guardians. Nancy and Ann retained Ms. Whaley of Whaley Estate Litigation to represent them and Victoria retained Ross McBride LLP to represent her, Margot, Sarah Ellen and Julie.

[ 9 ] On April 21, 2009, the parties entered into a consent order which was signed by Carpenter-Gunn J. It provided that the respondent Joseph Colangelo, who was a personal friend to Fernando and his family, would be appointed the sole Guardian for Property, and that he, Victoria, Ann and Nancy would be appointed as Co-Guardians for Personal Care with the provision that any decision taken must include Mr. Colangelo in the majority. The order stipulated that Mr. Colangelo, a solicitor with over thirty years legal experience, much of it in the health care field, would only seek compensation for his involvement in “contentious” issues between or among family members. That did not take long to come to fruition. In a short period of time, the battle lines in this acrimonious and tragic affair were drawn. As Nancy lamented in one of the many affidavits filed by her in this lengthy matter, she quickly realized that she had made a mistake in consenting to Mr. Colangelo’s appointment.

[ 10 ] The issue which divided the family and resulted in enormous legal costs being incurred by the Estate, Nancy, Ann and Victoria was the nature and extent of care to be given to Fernando as his health gradually declined. There was no question that Fernando was incapable of making decisions on his own behalf. The disagreement between the applicants and the respondents revolved around three questions:

a. What was in the best interests of Fernando and what would his decisions be if he were able to communicate them?

b. Who should be able to make those decisions?

c. What decisions should be made?

[ 11 ] When Nancy and Ann jointly made application for the consent order of Carpenter-Gunn J., they expressly stated in the Guardianship Plan filed with the court that they had no knowledge of any pre-incapacity wishes or instructions of their father. In subsequent submissions filed with the court [1] they varied that position by indicating that their father did not advise anyone of his wishes in writing.

[ 12 ] Victoria and Mr. Colangelo have taken the position throughout this period that Fernando would have wanted them to cease treatment when it would only prolong life without improving the quality of life. Mr. Colangelo swore that Fernando’s position on life treatment was well known to Victoria, his wife of many years, who has throughout these proceedings viewed the actions Fernando has taken in his life as exemplifying his direction to her on how he was to be medically treated in the event of his incapacity.

[ 13 ] The applicants’ position was neatly summarized in the report of Dr. Howard Dombrower, MD, FRCPC, who is a specialist in geriatric medicine, end-of-life-care, palliative care and dementia. In his report dated January 25, 2011, addressed to the applicants’ counsel, he stated at page 9 that “in the absence of consensus Dr Fernando Olivieri should be treated with potentially life saving therapies that have a reasonable chance of extending survival so long as the treatment itself does not contribute to an obvious deterioration.”

[ 14 ] Paragraph 46 of the consent order of April 21, 2009, granted the parties leave to move for such further directions as the parties or the court deemed advisable. The insertion of this paragraph in the order opened the door to almost three years of interminable litigation. That provision in the court order was the basis upon which both parties, but particularly the applicants, brought numerous motions before the court from time to time.

[ 15 ] It is important in considering all the events in this unfortunate matter to keep in mind that Mr. Colangelo was approached to become involved because he was a friend of the family. As he noted in his letter of January 17, 2010, “his appointment had become necessary because the authority of Ann and Nancy to act as attorneys was being challenged and the three existing attorneys were at an impasse.” [2]

[ 16 ] In due course, and certainly by September 2010, the applicants could not get along with him either.

Overview of the Chronology of Events

[ 17 ] To give some context to my ruling in this matter, I feel it is important to summarize some of the various court related motions and applications.

a. December 18, 2006 – Victoria, Nancy and Ann were appointed as Co-Guardians for Property and Personal Care by Fernando

b. April 21, 2009 – By Consent Judgment, (a) Mr. Colangelo was appointed sole Guardian for Property; (b) Victoria, Ann, Nancy and Mr. Colangelo were appointed as Co-Guardians for Personal Care and any decision taken must include Mr. Colangelo in the majority; (c) Mr. Colangelo only requested compensation only for involvement in “contentious” issues between or among family members.

c. April 28, 2009 – mediation was conducted by Mark Handleman pursuant to the April 21/09 Consent Judgment. Mr. Handleman then reported to Carpenter-Gunn J.

d. July 30, 2010 – Dr. Christopher Patterson, a consulting gerontologist, reported on his assessment of Fernando and noted: (a) “considerable family disharmony”; (b) Nancy’s challenges to the care provided at St. Joseph’s Villa; (c) “the level of care, which he is currently receiving, is exemplary and I see no reason to have him move to any other location.”

e. August 24, 2010 – Mr. Colangelo presented guardianship accounts at a family conference.

f. September 21, 2010 – Counsel for Mr. Colangelo wrote to the Trial Co-ordinator at Hamilton requesting a chambers’ appointment to schedule a motion for directions, pursuant to paragraph 46 of the April 21, 2009, Consent Judgment.

g. September 23, 2010 – on agreement of all Guardians, Fernando was transferred to McMaster Hospital for treatment, including transfusion, then returned to St. Joseph’s Villa.

h. September 24, 2010 – Ann and Nancy retained new counsel and moved, without notice, for an interim ex parte order permitting Nancy to act solely in urgent circumstances. Nancy used the order to have her father transferred immediately to McMaster Hospital for treatment. A motion for a permanent order appointing Dr. Fernando Bianchi as Guardian was scheduled for September 28, 2010.

i. September 28, 2010 – the September 24, 2009 Interim Order was set aside by Lococo J. An order for the hearing of a motion brought by Nancy and Ann and a cross-motion brought by Mr. Colangelo for directions was made, subject to scheduling. An order for costs of $10,000 was awarded against Nancy and Ann.

j. October 26, 2010 – Ann and Nancy abandoned their motion for directions and re-appointed former counsel, Ms. Whaley.

k. November 16, 2010 – Ann and Nancy appointed Adair Morse as counsel.

l. January 13, 2011 – Applicants served an “urgent” motion, returnable January 18, 2011, in which the applicants sought directions from the court and again sought the appointment of Dr. Bianchi as sole Guardian of the Person, or alternatively Co-Guardians of the Person with Ann and Nancy, or alternatively Co-Guardian with Ann and Victoria, or alternatively Co-Guardian with the existing four Co-Guardians with a majority vote governing decision making. Further supplementary materials were served January 17, 2011. The respondent Mr. Colangelo’s motion for directions adjourned from September 28, 2011, was also before the court.

(Decision text continues exactly as in the original document.)

Turnbull, J.
Date: June 20, 2012.

[1] Submissions of the Applicants dated November 30, 2011, page 7, paragraph 12.

[2] Affidavit of Nancy Olivieri sworn May 30, 2011, exhibit L, page 4. (marked as Book 4 on these motions)

[3] Fiacco V. Lombardi [2009] O.J. No. 3670 (S.C.), at para. 33 ; Tab 1 Book of Authorities of the Applicants.

[4] Ibid., at paras. 33 and 36

[5] Letter dated January 27, 2011, from Kathryn Frelick to Jerome Morse, found as exhibit J to the affidavit of Dr. Hugh Fuller sworn February 14, 2011.

[6] Letter dated January 28, 2011 from Kathryn Frelick to Jerome Morse, found as exhibit U to the affidavit of Dr.Hugh Fuller sworn February 14, 2011

[7] Letter from Mr. Dockrill to Mr. Morse dated December 22, 2010, affixed as exhibit D to the affidavit of Nancy Olivieri sworn May 30, 2011.