Public Guardian and Trustee v. Dodson, 2015 ONSC 2810

COURT FILE NO.: 14 – 50697

DATE: 2015-04-29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: The Public Guardian and Trustee, Applicant

AND:

Jennie Dodson, Respondent

BEFORE: The Honourable Justice G. E. Taylor

COUNSEL: Jael Marques de Sousa, for the Applicant

Jennie Dodson, appearing in person

HEARD: March 18, 2015

Cost ENDORSEMENT

[1] On March 25, 2015 I released Reasons for Judgment confirming the refusal of the Public Guardian and Trustee to issue a Certificate of Guardianship to Jennie Dodson to be the Statutory Guardian of Property for Stella Sobies. I requested written submissions with respect to costs of the Application which have now been received.

[2] The PG&T requests its costs of the Application. Jennie Dodson submits that as a senior citizen, without a pension, on compassionate grounds, there should be no costs awarded against her for the Application. Jennie Dodson attached to her brief written submissions on costs, a copy of a letter dated September 23, 2014 sent to her by Darrell Dauphney, Legal Counsel with the PG&T. Jennie Dodson refers to this letter as “Darrell Dauphney’s forgiveness of costs”. In fact the letter says that a cost award of $1000 made against Jennie Dodson in favour of the PG&T as a result of the filing of a Notice of Objection to probate being issued for the Will of Edmund Sobies, would not be pursued “at this time”.

[3] Section 8 (2) of the Public Guardian and Trustee Act provides that the PG&T is entitled to be reimbursed for expenses incurred in respect of services rendered and things done pursuant to the Act. The PG&T acted pursuant to its statutory obligation in bringing this Application. In my view the PG&T is entitled to its costs of this Application.

[4] In McDougall Estate v. Gooderham, 2005 CanLII 21091 (ON CA), [2005] O.J. No. 2432, the Ontario Court of Appeal held that the modern approach to fixing costs in estate litigation is to follow the costs rules that apply in civil litigation. In Fiacco v. Lombardi, [2009] O.J. No. 3670, Brown J., as he then was, concluded that the rules with respect to costs of estate litigation apply equally to capacity litigation.

[5] Stella Sobies obtained a benefit by having the PG&T confirmed as her Statutory Guardian of Property. It is therefore appropriate that the estate bear a portion of the costs incurred in having that appointment confirmed. However, in my view, the costs of the PG&T were significantly increased as a result of the actions of Jennie Dodson. I therefore conclude that she should be responsible for paying a portion of the costs incurred by the PG&T.

[6] The PG&T seeks an award of full indemnity costs in the amount of $5050 for fees, $210 for disbursements and $582.50 for HST for a total cost award of $5942.50. Of this amount, the PG&T submits that Jennie Dodson should be responsible for $1000 or approximately 1/6 of the amount of the costs claimed. I find this to be an exceedingly generous position to be taken by the PG&T.

[7] Jennie Dodson was put on notice as a result of her unsuccessful challenge to the Will of Edmund Sobies that costs can be awarded against a person such as herself. Nevertheless she persisted in her zealous and unfounded efforts to become Guardian of Property for Stella Sobies. I see no reason why she should now be relieved of her responsibility to pay costs for her unsuccessful opposition to the PG&T being confirmed as Statutory Guardian of Property for Stella Sobies. The message needs to be sent to Jennie Dodson that there are financial consequences to her unjustified behavior.

[8] I have reviewed the Cost Outline and supporting time dockets of the PG&T. I find the time spent and the hourly rates charged to be entirely reasonable. It is significant also, in my view, that no costs are being sought in relation to an appearance in December 2014, at which time the Application was adjourned to a long motions list. The matter was placed on a regular motions list in December 2014, at the insistence of Jennie Dodson, although it was obviously a matter requiring a special appointment.

[9] There will be an order that the PG&T is entitled to costs of the Application fixed in the total amount of $5942.50. Jennie Dodson is to pay $1000 of those costs within 30 days with the balance of the costs in the amount of $4942.50 to be paid from the assets of Stella Sobies.

“G.E. Taylor”

G.E. Taylor, J.

Date: April 29, 2015