CITATION: Landry v. Picard Estate, 2015 ONSC 476

L’ORIGNAL COURT FILE NO.: 203-2014

DATE: 2015/01/21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARGUERITE LANDRY and LOUISE LANDRY, Litigation Guardian, Applicants

AND

ESTATE OF ALBAN PICARD, FERME MON REVE, a sole proprietorship of Alban Picard, deceased, RAYMOND PICARD, in his capacity as Executor of the Estate of Alban Picard, Deceased, and RAYMOND PICARD, in personal capacity, Respondents

BEFORE: Mr. Justice Marc R. Labrosse

COUNSEL: Marguerite Landry and Louise Landry, Self-represented

Marcia A. Green, Counsel for the Respondents

HEARD: December 12, 2014 at L’Orignal

ENDORSEMENT ON MOTION FOR INTERIM COSTS

Overview

1The Applicants bring this motion for interim costs for legal fees payable from the Estate of Alban Picard (the “Estate”) to allow them to pursue their various claims against the Respondents. The Estate has bought a Motion to Strike all or a portion the Applicants’ pleadings which was to be heard on January 30, 2015.

2This file has been prevented from proceeding in a timely manner as a result of a series of preliminary steps, which have delayed the adjudication of the Applicants’ claims. While Louise Landry, as litigation guardian for Eric Kiefer Lewertoff has attempted to assist her mother Marguerite Landry in advancing her claims, the challenge of doing so without legal representation has prevented Marguerite Landry from having her dependents’ relief claim and trust claims dealt with in a timely manner.

3For the reasons which follow, I am of the view that limited funds should be made available to Marguerite Landry to assist her with the drafting of her pleadings and with the upcoming Motion to Strike. The legal test for granting a motion for interim costs has been met by Marguerite Landry and she clearly needs independent representation to advance her claims. As set out below, none of these funds shall be used to assist Louise Landry as litigation guardian for Eric Kiefer Lewertoff.

4The interim legal fees for Marguerite Landry shall be paid directly to the solicitor retained by Marguerite Landry and shall only be used for the limited purpose set out in this endorsement.

Background

5This Application has come before the Court on several occasions and the claims of Marguerite Landry have seen limited advancement. The Court has tried on numerous occasions to provide guidance to both Marguerite Landry and Louise Landry as litigation guardian for Eric Kiefer Lewertoff to simplify the Notice of Application and focus the claims of Marguerite Landry to her dependents’ relief claim and her trust claims. Louise Landry has argued against the guidance provided by the Court and has chosen to broaden the claims of Marguerite Landry to a point that the Notice of Application is at best difficult to understand and there are serious issues surrounding the relief claimed.

6It is apparent that the Applicants acknowledge that there must be amendments to the Notice of Application. A draft Amended Notice of Application had been presented during an earlier appearance, which attempted to address some of the issues raised by the Respondents. On a preliminary review, there is merit to the Motion to Strike as the Notice of Application must be amended. However, even the draft Amended Notice of Application needs to be reviewed by a solicitor on behalf of Marguerite Landry. Consideration should be given to having Marguerite Landry serve and file a revised Amended Notice of Application, which would be limited to her own claims. Louise Landry, as litigation guardian for Eric Kiefer Lewertoff can then advance the claims of Eric Kiefer Lewertoff in a separate Notice of Application.

7I must first consider the motion for interim costs and determine if Marguerite Landry’s request satisfies the established criteria.

Position of the Parties

8The Notice of Motion filed seeks the payment of interim support for payment of legal fees incurred by Marguerite Landry in the amount of $23,396.53 and the payment of a retainer in the amount of $10,000.00 for a lawyer to be retained by Marguerite Landry.

9However, the relief sought at pages 30 and 31 of the Factum are indicative of the inability of Marguerite Landry to focus her pleadings on that which is before the Court. The orders sought at paragraphs 30 to 35 of the Factum seek the payment of various costs, some personally by the Estate Trustee. The Orders sought do not follow the relief requested in the Notice of Motion and go well beyond a claim for interim costs.

10In support of her claim for interim costs, Marguerite Landry has filed an affidavit which provides a summary of her relationship with the deceased, Alban Picard. She also provides information which demonstrates that she is of very limited financial means and does not have the financial resources to retain a lawyer to assist her in advancing her claims against the Estate. Marguerite Landry provides copies of the legal bills paid to date for which she is seeking reimbursement.

11Marguerite Landry claims that her request for interim costs satisfies the legal criteria set out in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 [Okanagan Indian Band]. However, she does not stop there. In response to a six‑page affidavit filed by the Estate Trustee, Raymond Picard, Marguerite Landry has filed a 25‑page Reply Affidavit which only deals with the first two pages of Raymond Picard’s affidavit. This Reply Affidavit is indicative of how Marguerite Landry has been unable to put forward her claims in an efficient manner while being assisted by Louise Landry.

12The Estate of Alban Picard responds to the motion by taking the position that the test for an award of interim costs has not been met. The Estate maintains that Alban Picard and Marguerite Picard were not common‑law spouses but were simply two retired people who shared living expenses.

13The Estate takes the position that there is limited financial viability in the Estate for the payment of interim costs to Marguerite Landry.

14As for the criteria set out in Okanagan Indian Band, the Estate conceded in argument that on the record before the Court, Marguerite Landry has demonstrated a prima facie case. While the Estate disputes that Marguerite Landry is impecunious, the focus of its argument is that there are not special circumstances which warrant an interim costs award.

15In considering the special circumstances criteria, the Respondents first rely on the public importance element as set out in Okanagan Indian Band. The Respondents recognize that interim costs awards have been made in private disputes. An analogy is made with family cases where the indemnificatory purpose of the costs power is fulfilled.

16The Respondents rely on Turner v. Andrews, 2001 BCCA 76 in support of their position that for interim costs to be awarded there must be something very special about the circumstances of the case.

Analysis

17The analysis for an award of interim costs can simply be made from a consideration of the three criteria set out in Okanagan Indian Band being:

• Impecuniosity;

• A prima facie case of sufficient merit to warrant pursuit; and,

• Special circumstances to satisfy the court that the case is within the narrow class of cases where this extraordinary exercise of its powers is appropriate.

18In the case of the claim by Marguerite Landry, I agree with the Respondents that at this point, Marguerite Landry has demonstrated that there is a prima facie case to warrant pursuit. Marguerite Landry has demonstrated that she cohabitated with Alban Picard for approximately 10 years prior to his death. Evidence has been presented that suggests that they were engaged in 2003, bought burial lots beside one another and travelled together. Overall, there is evidence which could lead to a conclusion that they were more than roommates. Marguerite Landry has demonstrated that there is a prima facie case that warrants pursuit.

19On the issue of impecuniosity, I am also satisfied that this criterion has been met. Marguerite Landry has presented evidence which demonstrates that she has spent most of her liquid assets on legal fees pursuing her claims. I disagree with the Respondents that Marguerite Landry has not provided sufficient disclosure of her current financial circumstances. I am satisfied that the evidence shows that at the date of death, she had liquid assets and most of these funds have been spent on litigation. Marguerite Landry does not have the necessary funds to pursue her claims with the assistance of legal counsel. She has met the impecuniosity criteria.

20I have had the benefit of hearing the Applicants argue before me on three separate occasions in the course of this proceeding. I am satisfied that without the benefit of guidance from a lawyer, Marguerite Landry will be unable to advance her claims in a cogent and efficient manner. The main issue which leads me to confirm that there are special circumstances that warrant an award of interim costs, relates to the significant conflict that exists between the Estate and Marguerite Landry and the inability of the Applicants to advance her legitimate claims.

21In coming to this conclusion, I am mindful of the special circumstance criteria and how the analysis cannot be limited to impecuniosity and having a prima facie case. Here, the level of animosity between the Estate Trustee and the Applicants is abundantly clear. The Estate Trustee has denied the existence of any serious relationship between Marguerite Landry and Alban Picard. This is obviously very insulting to Marguerite Landry in the wake of Alban Picard’s death. Simply put, this litigation will not move forward without the assistance of legal counsel who will put aside the conflict and bitterness between the Estate Trustee and the Applicants and move the file forward to be adjudicated on its merits.

22Further, the Applicant Marguerite Landry is not benefitting from the assistance of Louise Landry in the preparation of her pleadings. The documents filed with the Court seek relief which could not reasonably be obtained; they are repetitive and filled with animosity. The documents do not focus on the claims of Marguerite Landry which have prima facie merit.

23This analysis must also address the issue of proportionality. The Respondents would need to spend significant time and fees defending the Notice of Application as currently drafted. This is not a large estate and the liquid assets available for litigation are not significant. The Notice of Application must be simplified to allow the Respondents to reply succinctly and have the claims proceed to adjudication. However, I do not accept the Respondents’ position that there are not sufficient funds in the Estate to pay interim costs.

24I therefore find that this is a case where the three criteria in Okanagan Indian Band for interim costs have been met. However, I am not prepared to simply make an order for interim costs and allow these funds to be used without focus on the specific needs of Marguerite Landry. The interim costs to be awarded will be limited to certain proceedings which should allow for Marguerite Landry’s claims to be presented in an efficient manner.

25I hereby order the following:

1. The sum of $15,000.00 shall be paid in trust to the solicitor for Marguerite Landry and shall be used exclusively to advance the legitimate claims of Marguerite Landry. No funds shall be used for the benefit of Eric Kiefer Lewertoff’s claims and no funds shall be used receiving input from Louise Landry as to how Marguerite Landry’s claims should be advanced. These funds are to be used exclusively to allow Marguerite Landry to obtain legal services.

2. The said amount of $15,000.00 shall be used as follows:

a. $5000.00 shall be available to the solicitor for Marguerite Landry with respect to the Motion to Strike. Consideration shall be given to filing a fresh Notice of Application which complies with the Rules of Civil Procedure. The goal should be to avoid the Motion to Strike through the drafting of a proper Notice of Application.

b. $10,000.00 shall be available to the solicitor for Marguerite Landry with respect to the hearing of the Application for dependents’ relief and the trust claims over the property of the Estate.

26In restricting the amount and use of the interim costs, I am mindful that these amounts may not be sufficient for Marguerite Landry to receive full representation during the entire proceedings. Unfortunately, the issues of proportionality discussed above apply in these circumstances and cannot be ignored by the Court. In order for Marguerite Landry to benefit from legal representation, she may need to focus her claims on those issues which are the most important and rely on the evidentiary record which already exists.

27Marguerite Landry has already spent a significant amount on legal fees to date because of her inability to focus her claims. There has been a lack of focus of her claims under the assistance of Louise Landry. If Marguerite Landry continues to be unable to properly structure her claims under the Rules of Civil Procedure, the Motion to Strike will proceed and the Court will adjudicate on the form and content of the Notice of Application.

28The claims for reimbursement for legal fees incurred are denied. This will be dealt with at the conclusion of the Application, as per the normal course.

Conclusion

29For the reasons set out above, it is ordered that the Estate of Alban Picard shall make an interim payment for costs in the amount of $15,000.00 payable in trust to the solicitor retained by Marguerite Landry. The use of such funds shall be limited as set out in this Endorsement and if not fully utilized, they shall be returned to the Estate.

30Finally, the timetable set out in my September 25, 2014 Endorsement is no longer valid. The Motion to Strike has been adjourned to February 20, 2015 for two hours. Unless the parties agree otherwise, there is likely not sufficient time from the date of this Endorsement to allow Marguerite Landry’s legal counsel to advise her on the Motion to Strike and assist with cross‑examinations on affidavits. The Motion to Strike date of February 20, 2015 will likely need to be adjourned. If the parties are not able to agree to a new timetable with the trial coordinator, I may be contacted to set new dates for the Motion to Strike.

Costs

31The Applicant Marguerite Landry has been substantially successful on this motion and as such is entitled to the payment of a portion of her costs. If the parties are unable to agree on the issue of costs, they may write to me. The Applicant shall provide written costs submissions within 14 days of the date of release of this Endorsement. Thereafter, the Respondent shall provide written costs submissions within 14 days. Thereafter, the Applicant shall have a right of reply within 7 days. Each costs submission shall be no longer than two pages in length, excluding the Costs Outline. The parties shall comply with Rule 4.01 of the Rules of Civil Procedure.

Mr. Justice Marc R. Labrosse

Date: January 21, 2015

CITATION: Landry v. Picard Estate, 2015 ONSC 476

L’ORIGNAL COURT FILE NO.: 203-2014

DATE: 2015/01/21

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: MARGUERITE LANDRY and LOUISE LANDRY, Litigation Guardian, Applicants

• AND -

ESTATE OF ALBAN PICARD, FERME MON REVE, a sole proprietorship of Alban Picard, deceased, RAYMOND PICARD, in his capacity as Executor of the Estate of Alban Picard, Deceased, and RAYMOND PICARD, in personal capacity, Respondents