BARRIE COURT FILE NO.: 09-1171

DATE: 20121116

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ROSE MENARD and LEGACY PRIVATE TRUST, Applicants

AND:

STEVEN MENARD and PUBLIC GUARDIAN AND TRUSTEE, Respondents

BEFORE: M.P. EBERHARD, J.

COUNSEL:
D. Friend, Counsel, for the Applicants Rose Menard and Tyler Gingras

C. Love, Counsel, for the Applicant Legacy Private Trust

F. Grise, Counsel, for the Respondent Steven Menard

M. Farmer, Counsel, for the Respondent PGT

HEARD: October 13, 2009, September 13, 2011, September 30, 2011, December14, 2011 and September 19, 2012

ENDORSEMENT

[ 1 ] Rose Menard and Legacy applied, as required by previous order, for a finding that her son Steven Menard was incapable of managing his property and to be appointed guardians. This changed in a second Application by Rose Menard and Steven’s brother, Tyler Gingras to serve as guardians.

[ 2 ] Bills of Costs, claiming full indemnity costs inclusive of HST from the property of Steven Menard, were received in writing from all participants as follows:

(a) Rose and Tyler: $66,238.47;

(b) Legacy: $28,741.09;

(c) Steven Menard: $15,090.59;

(d) Public Guardian and Trustee: $2,260.

[ 3 ] Rose and Tyler replaced Rose and Legacy as trustees. In an overarching context of each of the four costs claimants having a duty to protect Steven’s interests, the dispute ultimately became one where Rose and Legacy had different views as to the use of Steven’s fund in a manner that benefitted Steven. Very broadly put, Rose maintained that she expended her own funds and rendered compensable services for Steven. Legacy had concerns that Rose had her own interest in some of the proposals she had for the use of Steven’s fund.

[ 4 ] The tension in the costs decision is whether Legacy should receive full indemnity costs or costs at all, having been compensated for their administrative activities for the fund by the management plan. This invokes a distinction between estate/guardianship litigants who must necessarily pursue litigation to promote the rights of the beneficiary of the fund against misuse of the fund and litigation about different views where the result of the litigation discloses a successful party and an unsuccessful party.

[ 5 ] Rose’s submissions suggest that Legacy raised criticisms of her use of the fund that were unsubstantiated, that the participation of Legacy in obtaining the order was more of an impediment to structuring an appropriate management plan than any real contribution to achieving a plan in Steven’s interests and that Legacy is fully compensated for their efforts by the fees for administering a simple fund that required little effort.

[ 6 ] Legacy suggests that they played a key role in moving the matter forward in the face of Rose’s inaccurate and incomplete record keeping. Legacy did schedule the Application when it first came before me in 2009.

[ 7 ] The momentum was painfully slow but Rose and Tyler’s counsel did shoulder the carriage of its progress.

[ 8 ] The difficulty in assessing the relative value of Legacy’s involvement is that I have no real evidence as to the negotiations or the expressed concerns of Legacy that were remedied to allow for the consent resolution. I have the assertion in the cost submissions but no substance to measure.

[ 9 ] The order of Lissaman J. necessarily required the involvement of the PGT, Rose and counsel for Steven. The consent appointment of Rose and Tyler supports a finding that they did what they had to do to create a management plan for Steven’s benefit to which all parties could agree. They, Rose in particular, could not avoid the litigation. It had to be done. I have no evidence to found a view that their conduct takes them outside the principle that Trustee doing what is necessary from the circumstances of the estate ought not to be out of pocket. Similarly counsel for Steven and the PGT.

[ 10 ] In the absence of real insight into whether Legacy’s input was necessary to promote the agreed result I have little grounds to criticise but do note their declining involvement as the plan took shape. There monitoring became less necessary as counsel for Steven and the PGT took it on. Further, the charged rate exceeds the conventions based on years of experience of counsel. The rate of $225/hour is appropriate.

[ 11 ] Accordingly I fix costs payable from the estate at:

a. Rose and Tyler: $66,238.47;

b. Legacy: $16,603;

c. Steven Menard: $15,090.59;

d. Public Guardian and Trustee: $2,260.

EBERHARD J.

Date: November 16, 2012