COURT FILE AND PARTIES
COURT FILE NO.: 03-62/12
DATE: 20130926
ONTARIO
SUPERIOR COURT OF JUSTICE
ESTATES LIST
IN THE MATTER OF THE PROPERTY AND PERSONAL CARE OF HELENA REIJERS
BETWEEN:
KARIN BLAIR,
Applicant
– and –
HELENA REIJERS and THE PUBLIC GUARDIAN AND TRUSTEE,
Respondents
– and –
HELENE EDWARDS, NICK TAYLOR,
JOHN VERWAY,
Added Parties
Peter A. Grunwald, Counsel for the Applicant
Mara Farmer, Counsel for the Public Guardian and Trustee
Harvey Ash, Counsel for Helene Edwards, Nick Taylor and John Verway
Andrew Munro, Counsel on a watching brief for Helena Reijers
WRITTEN SUBMISSIONS ON COSTS
endorsement: greer j.:
ENDORSEMENT
[1] On June 21, 2013, I delivered an Endorsement in this Application, which was commenced by Karin Blair (“Karin”), one of the children of the incapable Helena Reijers (“Helena”). That Application was dismissed by me for the reasons set out in my Endorsement. Karin was also removed as an Attorney for Helena under Powers of Attorney for Property and Personal Care. I appointed Helena’s son, Nick Taylor (“Nick”), to replace Karin in the Power of Attorney for Property and appointed her daughter, Helene Edwards (“Helene”), to replace Karin as the Attorney for Personal Care. Both were appointed to act with Helena’s other child, John Verway (“John”), Attorney for both Property and Personal Care in Helena’s 2005 Powers.
[2] Other Orders were made by me ordering Karin to account for household goods and personal items she took from Helena’s home without Helena’s consent.
[3] In para. 37 of my Endorsement, I ordered the parties to submit Written Submissions to me on the issue of Costs on the Application, and the Costs of previous appearances by the parties before Madam Justice Stewart and Madam Justice Harvison Young. These Costs Submissions were to be filed by all parties, including the Public Guardian and Trustee (“PGT”), who had been appointed Helena’s Statutory Guardian of Property on April 24, 2012. The PGT was, at that point, unaware of the existence of the 2005 Power of Attorney.
[4] The parties were given 30 days within which to file their Written Submissions. Mr. Ash, Counsel for Helene, Nick and John, served and filed his Submissions on July 12, 2013. The other parties had 10 days within which to respond. The PGT’s were sent to me on July 31, 2013. Mr. Munro, Counsel for Helena, sent me his on July 19, 2013. Karin has served and filed no Submissions.
[5] Submissions were made by Helene, Nick and John, who were Added Parties to Karin’s Application. Karin had served no one when she brought what she said was an “urgent” matter before the Court. The Added Parties made Submissions first, since they also Counter-Claimed against Karin and were the Respondents on Karin’s Application.
[6] There are 4 issues to be considered and decided upon. They are summarized as follows:
(i) What scale of Costs should be applied?
(ii) How and by whom should the Costs as fixed by the Court, be paid, one of the litigants or out of Helena’s assets?
(iii) Is the PGT entitled to Costs, and if so, how should these be paid and on what scale?
(iv) What quantum of Costs should be fixed, including those awarded under the two previous Court Orders?
[7] When fixing Costs, the Court must take into account the principles of proportionality and fairness and reasonability. Costs must be reasonable in the circumstances of the case before the Court. The Court takes into account S.131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and R.57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which outlines the factors the Judge may take into account when fixing Costs.
[8] The Ontario Court of Appeal in Davies v. Clarington (Municipality), 2009 CarswellOnt 6185, 2009 ONCA 722 (C.A.), examined the limits of the Court’s discretion to award Costs on either a substantial indemnity or full indemnity scale. The Court may also consider whether the lower scale of partial indemnity should apply in the circumstances.
[9] In Davies, supra, the Court examined the circumstances where the “substantial indemnity” scale should be applied. The Court looks to see if there is some reprehensible behaviour which makes such Costs desirable as a form of chastisement. If the conduct of the party, by whom Costs are ordered to be paid, is scandalous or outrageous, then the Court may award Costs on a substantial indemnity scale. See: paras. 29-31 of Davies, supra.
[10] In the case at bar, all counsel say that Costs should be awarded against Karin, personally, on a substantial indemnity scale, given her scandalous conduct throughout. In my Endorsement, I set out Karin’s propensity to dismiss her counsel on the eve of the Application or Motion, her failure to obey Court Orders when made against her, the allegations made against her of elder abuse based on Helena’s own affidavit evidence, and her removal of Helena’s household goods without authority. Karin brought on the Application without proper service on her siblings or the PGT.
[11] In my view, Karin’s conduct throughout is such that I order all Costs, except as otherwise noted, to be paid by her on a substantial indemnity basis.
Costs of the Added Parties Helene, Nick and John
[12] The Added Parties have produced the Bills of Costs and time dockets for all three Court proceedings before Madam Justice Stewart, Madam Justice Harvison Young and me as follows:
a) Order of Madam Justice Stewart – September 14, 2012
Senior Counsel on that appearance was Justin de Vries, at $550 per hour plus others at rates between $200 and $450 per hour
(i) Fees - Partial Indemnity $20,800 + HST of $2,704
Substantial Indemnity $31,200 + HST of $4,056
Disbursements $1,045.81
b) Order of Madam Justice Harvison Young – January 29, 2013
There was a change of counsel from Mr. de Vries’ firm to Mr. Harvey Ash. Mr. Ash’s billing rate is $380 per hour.
(i) Fees - Partial Indemnity $10,576.67 + HST of $l,438.33
Substantial Indemnity $16,550 + HST of $21,151.50
Disbursements $528.38
(c) Order of Madam Justice Greer – May 13, 2013
The Application and Cross-Motion were heard.
(i) Fees - Partial Indemnity $7,245.33 + HST of $941.89
Substantial Indemnity $10,868.00 + HST of $1,412.84
Disbursements $491.91
(d) Mr. Ash asks for further Costs arising out of the Settlement of my Order and dealings with the PGT to have the 2005 Powers of Attorney verified and the statutory guardianship of Helena’s property by the PGT terminated.
Mr. Ash’s fees are $4,765.50 on a Partial Indemnity scale inclusive of disbursements and HST, and $6,919.67 on a Substantial Indemnity scale.
Costs of Helena’s Counsel, Andrew Munro
[13] Mr. Munro has acted for Helena for many years and drafted the 2005 Powers of Attorney. The originals were in his possession from that date forward. The children, who were the Added Parties, agreed that Helena should be represented by Mr. Munro and the PGT’s guardianship of Helena’s property by the PGT terminated. They provided Karin with a copy of the 2005 Power of Attorney for Property on August 7, 2012, at which time Karin should have withdrawn her Application. That did not take place and the process then continued before three different Judges.
[14] Mr. Munro’s hourly rate is $350 per hour. His Partial Indemnity Costs are $9,979.20 plus HST of $1,297.38, plus disbursements of $44.44 for a total of $11,320.94. His Substantial Indemnity bill is $15,120 plus HST of $1,965.60 plus $44.44 disbursements for a total of $17,130.04.
Costs of the Public Guardian and Trustee
[15] Ms. Farmer acted for the PGT in this matter. The PGT was appointed the statutory guardian of Helena’s property under the Substitute Decisions Act, 1992, S.O. 1992, c.30 on April 24, 2012. Helena was, at that point in time, a patient at Bridgepoint Hospital and her attending physician completed the Form to have her assessed. The PGT was not aware that Helena had a 2005 Power of Attorney for Property.
[16] Ms. Farmer says that from the outset, Helena expressed concerns about her children’s ability to manage her finances. It was not until August 2012, that the Added Parties and the PGT became aware of the 2005 Powers of Attorney.
[17] The PGT says it is entitled to its Costs and should not be responsible for any of the Added Parties’ Costs. I agree that the PGT operated under its statutory duty without impropriety. By the time the PGT and Added Parties appeared before Madam Justice Stewart on September 14, 2012 she ordered the PGT to continue to act in its capacity a statutory guardian.
[18] While I am aware that the PGT failed to notify Helena’s family members in a timely fashion of its appointment, I ordered the guardianship to continue while Helena’s house was listed for sale and that it remain in place until the 2005 Power of Attorney for Property was confirmed.
[19] The PGT involvement in Helena’s affairs was neither frivolous nor inappropriate. There was no bad faith and no losses. See: DeMichino v. DeMichino, 2009 92116 (ON SC), [2009] O.J. No. 271, 94 O.R. (3d) 379, 50 E.T.R. (3d) 72, 180 A.C.W.S. (3d) 593. Costs should therefore not be awarded against the PGT.
[20] The PGT says its Costs be borne by Karin personally, given her failure to properly inform the Court or the PGT about the 2005 Power of Attorney for Property in a timely manner.
[21] In my view, it is Helena’s assets which should bear the PGT’s Costs, not Karin, although she is not without fault. I ordered the PGT to keep administering Helena’s assets while the house was listed for sale and until the 2005 Power could properly be confirmed. Helena’s medical practitioner ordered the assessment of Helena and so the PGT had no choice but to act.
Order respecting Costs
[22] The PGT is asking for Costs inclusive of HST be fixed at $3,531.25, based on a modest hourly rate of $250 per hour. Ms. Farmer, Counsel for the PGT, was called to the Ontario bar 21 years ago. Order to go fixing the PGT’s Costs at $3,531.25 payable within 30 days payable out of Helena’s assets now administered under the 2005 Power of Attorney for Property.
[23] I order Karin to pay the following Costs personally within 30 days of this Order, failing which, such Costs shall be charged to any interest Karin may have in Helena’s Estate on her death, plus interest at the Courts of Justice Act post-judgment interest rate commencing 30 days after the date of this Order. The Costs fixed are as follows:
- Costs of the Added Parties before Madam Justice Stewart:
A reduced Costs figure given too many hours spent by
3 different experienced counsel $25,000.00
plus disbursements $1,045.81
plus HST $3,250.00
$29,295.81
- Costs of the Added Parties before Madam Justice Harvison Young are
fixed on a Substantial Indemnity scale of $16,550 plus HST of $2,151.50
plus disbursements of $528.38 for a total of $19,229.88.
Costs of the Added Parties before me are fixed on a Substantial Indemnity scale of $10,868.00 plus HST of $1,412.84 plus disbursements of $491.91 for a total of $12,772.75.
Costs of the Added Parties to confirm the 2005 Power of Attorney in the amount of $6,919.67 on a Substantial Indemnity scale shall be paid out of Helena’s assets. These Costs relate to activities arising out of the litigation but not related to Karin’s behaviour. The PGT was already appointed as the Statutory Guardian of Property due to the Assessment ordered by the Hospital medical practitioner and had to be removed when the 2005 Power was produced.
Costs of Andrew Munro, Helena’s Counsel, are fixed at $17,130.04 inclusive of HST and disbursements on a Substantial Indemnity scale.
[24] All Orders shall go accordingly.
Greer J.
Released: September 26, 2013
COURT FILE NO.: 03-62/12
DATE: 20130926
ONTARIO
SUPERIOR COURT OF JUSTICE
ESTATES LIST
IN THE MATTER OF THE PROPERTY AND PERSONAL CARE OF HELENA REIJERS
BETWEEN:
KARIN BLAIR,
Applicant
– and –
HELENA REIJERS and THE PUBLIC GUARDIAN AND TRUSTEE,
Respondents
– and –
HELENE EDWARDS, NICK TAYLOR,
JOHN VERWAY,
Added Parties
ENDORSEMENT
Greer J.
Released: September 26, 2013