COURT FILE NO.: 14-46010
DATE: 2015-09-28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Christine Korczak, Applicant
AND:
Edward Soltyka, Bernard Soltyka,
The Office of the Public Guardian and Trustee, Respondents
BEFORE: The Honourable Mr. Justice D.J. Gordon
COUNSEL:
H.B. Hogan, Counsel for Christine Korczak
A.M. Hill, Counsel for Edward Soltyka
J.J. Bergart, Counsel for Bernard Soltyka
SUPPLEMENTARY ENDORSEMENT re: COSTS
[1] In my endorsement, released July 30, 2015, I invited written submissions from counsel on the issue of costs.
[2] This was a motion for a passing of accounts by an attorney, appointing an interim corporate guardian of property and other relief. The underlying action involves a dispute with respect to several Powers of Attorney granted in favour of Christine and Edward separately and the management of Bernard’s finances.
[3] I granted an order directing Christine and Edward to produce banking records with explanation, essentially an informal accounting. Christine’s motion was otherwise dismissed.
[4] The written submissions of counsel indicate each of the three parties seek cost awards in excess of $33,000 in total.
[5] This proceeding is essentially a sibling dispute, a personal conflict described by their father, Bernard, as “they both hate each other’s guts”. But for this conflict, management of Bernard’s property and personal care decisions for him ought be simple and straightforward matters.
[6] A capacity assessment in January 2014 resulted in the conclusion Bernard was incapable. The Powers of Attorney, granted by Bernard in July and in September 2013 may not be valid. Nevertheless, property and personal care do not involve any degree of complexity.
[7] This proceeding was not necessary. But it became necessary due to the sibling conflict. Their refusal to co-operate and their inability to overcome their personal animosity and act only in the best interests of their father. Bernard is not pleased with this litigation. Nor am I.
[8] Normally, costs follow the event. But costs are discretionary and matters other than the result may be considered. Having regard to the abovementioned comments, I am not prepared to reward either Christine or Edward by granting a cost award. Each of them shall be responsible for their own costs personally.
[9] Bernard’s situation is different. The only sensible step in this proceeding was in seeking an order directing the Public Guardian and Trustee to appoint counsel for Bernard pursuant to section 3, Substitute Decisions Act. This order was granted on August 19, 2014.
[10] Mr. Bergart was appointed as counsel for Bernard. As a result of his interviews, he concluded Bernard was able to provide instructions and he reported on Bernard’s views and preferences. That should have lead to a resolution. Christine and Edward were not listening to their father’s wise advice.
[11] Bernard is entitled to a full indemnity cost award. Mr. Bergart requests $7,631.22. The amount is not challenged by the other parties. Indeed, having reviewed the bill of costs and time dockets, I find the amount claimed to be reasonable.
[12] Costs, therefore, are awarded to Bernard, fixed in the amount of $7,631.22, inclusive of HST and disbursements. In the circumstances, this award shall be paid by Christine and Edward equally.
D.J. Gordon J.
Date: September 28, 2015