COURT FILE NO.: CV-14-5820

DATE: 2015/12/31

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KENNETH ROELANDT

(Applicant)

And:

YVONNE ROELANDT, MARTINA ROELANDT, NELLY BURWELL and THE PUBLIC GUARDIAN AND TRUSTEE

(Respondents)

BEFORE: Justice I. F. Leach

COUNSEL:
Ian N. McLean, for the applicant (and respondent to counter-application) Kenneth Roelandt

James McIlhargey, for the respondent (and counter-applicant) Yvonne Roelandt

Philip Cornish, for the respondent (and counter-applicant) Nelly Burwell

Mary E. Cull, for the respondent Martina Roelandt

No submissions received from the respondent Public Guardian and Trustee

HEARD: In writing

ENDORSEMENT - COSTS

Overview

[1] On November 16, 2015, I released my substantive decision in this matter, addressing two competing applications brought primarily pursuant to the Substitute Decisions Act, 1992, S.O. 1992, c.30, (“the SDA”).

[2] Both applications requested formal authority to look after the property and person of Martina Roelandt, (commonly known as “Tina”).

[3] The underlying circumstances and various party positions were outlined in detail in my substantive decision, and I therefore will not repeat them at length here. However, for present purposes, and by way of broad summary:

• Tina is in her late fifties, but since her very early childhood she has lacked capacity to manage property or look after her personal care owing to significant cognitive and developmental limitations.

• For more than 54 years, Tina remained in the unchallenged primary care of her mother and unofficial guardian, Yvonne Roelandt.

• However, in the wake of Yvonne’s temporary hospitalization, and the discovery of Yvonne’s estate arrangements by her son Kenneth Roelandt and his wife Julie Roelandt, (“Julie”), Kenneth and Julie effectively removed Tina from Yvonne’s care, took Tina with them from Goderich to their home in North Bay, and thereafter sought, by way of formal application, to obtain legal authority over Tina and her property.

• In response, Yvonne and her other daughter, Nelly Burwell, (“Nelly”), sought to have Tina returned to the formal care and custody of Yvonne, or to the formal care and custody of Yvonne and Nelly jointly. Initially, Yvonne and Nelly were represented by the same lawyer. However, during the litigation, a decision was made to have each represented by separate counsel, and I think that was appropriate in the circumstances given that their respective interests diverged in some respects. (For example, Kenneth and Julie had advanced allegations of certain misconduct by Nelly, in which Yvonne had no alleged participation. Such allegations, although denied and not established in the result, posed a risk to the relief being sought by Yvonne.)

• In the course of the ensuing bitter and protracted litigation which followed, Tina was returned to Yvonne’s de facto care and custody through a negotiated temporary return visit to Goderich, which Yvonne and Nelly nevertheless effectively then made permanent when they failed to return Tina to Kenneth and Julie as contemplated. Arrangements also were made, with the assistance of the Public Guardian and Trustee, for the appointment of independent counsel to ascertain Tina’s wishes and provide Tina with separate representation in the proceedings.

• For reasons outlined at length in my substantive decision, I dismissed Kenneth’s application, and granted relief sought via the cross-application brought by Yvonne and Nelly. This included requisite formal declarations that Tina was incapable of managing property or personal care, an order appointing Yvonne and Nelly as joint guardians of property and personal care for Tina, and an order requiring Kenneth to pass accounts for the period during which he had de facto care and control of Tina.

[4] Because my decision on the competing applications was reserved, (following hearing of the matter on August 6, 2015), the parties had no opportunity to make submissions regarding costs. My reasons therefore invited written cost submissions, and set a timetable for their delivery.

[5] Written cost submissions now have been delivered by the parties. In particular:

• written cost submissions, including an attached formal Bill of Costs, were delivered on Yvonne’s behalf on November 30, 2015;

• written cost submissions on Tina’s behalf were delivered the same day;

• written cost submission were delivered on Nelly’s behalf on December 1, 2015, (at approximately 12:30am);

• responding written cost submissions then were delivered on behalf of Kenneth on December 11, 2015; and

• it seems that that Yvonne, Nelly and Tina, (and/or their respective counsel), each chose not to tender any further written cost submissions by way of reply.

Overview of Party Positions

[6] Yvonne now seeks costs of the litigation, on behalf of herself and Nelly for the period of their joint legal representation, and on behalf of Yvonne alone for the following period during which she and Nelly had separate lawyers. In particular, relying on a detailed Bill of Costs, and submissions that misconduct by Kenneth and Julie warrant an award of costs on a full indemnity basis, Yvonne seeks costs totaling $23,468.95 for incurred legal fees, disbursements and applicable taxes.

[7] Nelly also seeks an award of costs, albeit one restricted to those costs incurred during the period in which she had separate legal representation. She too submits that misconduct by Kenneth warrants an award of costs on an elevated scale, although she requests costs on a substantial indemnity (rather than full indemnity) basis. Nelly’s counsel tendered no supporting Bill of Costs, but his written cost submissions include indications of his hourly rate, and a general description of the legal services he performed in relation to the litigation; services which were said to have required 16 hours of time. The letter makes no mention of disbursements. However, it confirms that Nelly is seeking a total cost award of $4,520.00, inclusive of HST.

[8] A request for costs also is made, on Tina’s behalf, to provide some measure of reimbursement for the legal expense incurred by her counsel, who was appointed through the assistance of the Public Guardian and Trustee pursuant to a court order made under section 3 of the SDA. In that regard, funding assistance eventually was obtained from Legal Aid Ontario, as Tina herself is of very modest financial means. Like Nelly’s counsel, the lawyer representing Tina has not submitted a supporting Bill of Costs, but her written cost submissions include confirmation of her hourly rate through Legal Aid, her clerk’s hourly rate, a broad description of the legal work performed in relation to the litigation on Tina’s behalf, and a claim on Tina’s behalf for costs totalling $4,231.27, inclusive of fees, disbursements and applicable taxes. There is no indication of the scale on which costs are being sought by Tina.

[9] The responding written costs submissions from Kenneth’s counsel were admittedly brief, and took issue with the aforesaid cost requests only in relation to certain issues. In particular:

• It was suggested that cost awards only on a partial indemnity basis were appropriate, given that Yvonne herself was said to have been guilty of questionable conduct. For example, reference once again was made to the failure to return Tina to Kenneth and Julie, following the negotiated return visit to Goderich that was intended to be temporary. Reference also was made to Yvonne’s failure to attend for a requested further oral examination, with no excuse or reason being given.

• It was emphasized that Nelly’s counsel fairly had acknowledged and admitted, during the course of oral submissions, that Nelly herself had done much of the work underlying preparation of her court filings, and that counsel was appearing primarily to assist in conveying Nelly’s position in that regard. In the result, it was said that the costs of preparation by Nelly’s lawyer accordingly should have been minimal.

• It was submitted that compensation for Tina’s costs already has been provided by the Ontario Legal Aid Plan. Moreover, counsel for Tina was said to necessarily have proceeded with preparation of court filings and legal argument without “significant instructions” or “significant input” from Tina, (because of her Tina’s limited capacity). The implicit if not express suggestion seems to be that minimal preparation time therefore should have been required by Tina’s counsel, and/or that her resulting efforts and contributions should somehow be devalued.

[10] With the above in mind, I turn to application of the legislation and legal principles governing cost determinations in relation to such matters.

Analysis

[11] I was not referred to any legislative provisions or authority mandating or suggesting an approach to cost determinations, in relation to SDA applications, that differs in any material way from the approach to be taken in relation to the costs of civil litigation generally.

[12] Costs therefore fall to be determined pursuant to the court’s broad discretion confirmed by s.131 of the Courts of Justice Act, R.S.O. 1990, c.C.43, as expanded by Rule 57.01 of the Rules of Civil Procedure.

ENTITLEMENT

[13] Given the undivided success of Yvonne and Nelly in relation to the applications, as well as the general indemnity principle[^1], I see no reason why costs should not follow the event as far as they are concerned.

[14] In my view, the same principles also warrant a cost award in favour of Tina. In particular:

• The outcome was consistent with the wishes expressed by Tina to her appointed counsel, and contrary to the outcome sought by Kenneth. In that fundamental sense, Tina also therefore enjoyed “success” in the litigation, even though she brought neither application.

• In my view, this is not a situation giving rise to concerns of champerty or maintenance, and I am not aware of any other principled basis on which the court should deny costs to a successful litigant, in Tina’s position, on the basis of her having received financial support for initial payment of her legal expense from a third party, including the Ontario Legal Aid Plan. To the contrary, it seems to me that such an approach would undermine access to justice by parties such as Tina, who effectively require such financial assistance if they are to have any meaningful personal say in litigation pursuant to the SDA that fundamentally determines their future. Such parties no doubt would find it harder to obtain such interim financial assistance if there was no prospect of their ever receiving an award of costs that might facilitate some measure of reimbursement to others from whom financial assistance is requested.

• I reject any suggestion that the involvement of Tina’s counsel should be devalued, based on Tina’s compromised ability to provide instructions. As noted in my substantive reasons, the SDA expressly requires consideration of an incapable person’s current wishes, if they can be ascertained. In my view, steps taken to ascertain and present those wishes to the court in an independent and objective fashion, in highly contentious and adversarial litigation such as this, are of great value and assistance to the court.

SCALE

[15] In the particular circumstances of this case, I also think it would be appropriate to address such costs on a substantial indemnity basis.

[16] In that regard, I do not do so on the basis of any relevant settlement offers, as it seems no such offers were made. In the circumstances, neither Rule 49.10 nor Rule 49.13 applies to this situation.

[17] However, I do think the conduct of Kenneth in this matter, (and his implicit adoption and support of the conduct of his wife Julie), warrants an award of costs on an elevated scale.

[18] In saying that, I am mindful that, although the court has a broad discretion in relation to costs, our appellate courts repeatedly have emphasized that awards of costs on a partial indemnity basis generally strike the proper balance as to the burden of costs that should be borne by the “winner”, and that elevated cost awards should be reserved for “rare and most exceptional” cases. See, for example, Foulis v. Robinson (1987), 21 O.R. (2d) 179 (C.A.), and Isaacs v. MHG International Ltd., (1984), 1984 1862 (ON CA), 45 O.R. (2d) 693 (C.A.)

[19] The sort of conduct meriting elevated cost awards has been described in various ways.

[20] In Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at p.134, McLachlin J. indicated that elevated cost awards are warranted “only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties”.

[21] In Mortimer v. Cameron (1994), 1994 10998 (ON CA), 17 O.R. (3d) 1 (C.A.), and McBride Metal Fabricating Corp. v. H&W Sales Co. (2002), 2002 41899 (ON CA), 59 O.R. (3d) 97, whose principles were echoed and emphasized again by the Court of Appeal in Davies v. Clarington, 2009 ONCA 722, [2009] O.J. No. 4236 (C.A.), conduct warranting elevated cost awards was described as “reprehensible”, “egregious”, or “acts that clearly indicated an abuse of process”, justifying enhanced costs as a form of chastisement.

[22] In this case, I believe the conduct of Kenneth, and supported by Kenneth, regrettably falls within such descriptions and characterizations.

[23] For the detailed reasons set forth in my substantive decision, I found that the underlying conduct of Kenneth and Julie was precipitous, inconsiderate, cruel, needlessly belligerent, and generally motivated by collateral dissatisfaction with Yvonne’s estate arrangements and corresponding resentment, rather than any genuine concern for Tina’s welfare. The provisions and process of the SDA accordingly were being used for an unintended purpose.

[24] Such conduct needs to be discouraged.

[25] In particular, those contemplating resort to the SDA for ulterior motives, focused on direct or indirect financial gain, should also bear in mind the distinct possibility of costs being awarded against them on an elevated scale.

[26] Moreover, in the particular circumstances of this case, I do not think such concerns are negated by repeated reference to Yvonne failing to return Tina to Kenneth and Julie at the end of the negotiated “temporary” visit, and/or her failing to attend for a further oral examination.

[27] In relation to the former, “self-help” generally is not to be encouraged. However, there is no small degree of irony in Kenneth and Julie criticizing Yvonne, in that regard, when this entire unfortunate situation was set in motion by Kenneth and Julie unilaterally removing Tina from her home in Goderich contrary to the expressly stated wishes of Yvonne. Consistent with my findings and conclusions as to the underlying merits of the case, I think any degree of “self-help” exercised by Yvonne pales in significance to the conduct of Kenneth and Julie.

[28] As for Yvonne’s alleged failure to attend for a further oral examination, Kenneth had remedies available to him pursuant to Rules 39 and 34 to compel such a further attendance. In my view, his failure to take any steps in that regard gives rise to an inference that both he and his counsel felt the contemplated further examination was not really necessary, or that Yvonne’s failure to attend was significant. In the circumstances, any failure in that regard by Yvonne should not have any greater significance now, in the context of determining appropriate cost awards.

[29] For all these reasons, I think awarding costs on an elevated scale, (beyond those normally awarded on a partial indemnity basis), is appropriate in this particular case.

[30] I nevertheless think that awarding costs on a substantial indemnity basis, rather than a full indemnity basis, is sufficient to reflect the court’s disapproval.

QUANTIFICATION

[31] An award of costs on a substantial indemnity basis does not entail accepting the “base figures” of the successful parties without question.

[32] In other words, having to deal with egregious conduct on the part of a litigation adversary is not an effective licence to run up legal expense with the expectation of substantial reimbursement that will not be examined or questioned.

[33] The court is still obliged to consider the discretionary factors set forth in Rule 57.01, as well as the “overriding principle of reasonableness” as applied to the factual matrix of the case, pursuant to the ultimate “cross check” required by such authorities as Boucher, Moon and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 2005 1042 (ON CA), 75 O.R. (3d) 638 (C.A.), and Anderson v. St. Jude Medical Inc. (2006), 2006 85158 (ON SCDC), 264 D.L.R. (4th) 557 (Ont.Div.Ct.).

[34] In this case, having regard to applicable discretionary factors set forth in Rule 57.01(1):

• To some extent, I already have addressed the principle of indemnity, in the context of my remarks concerning entitlement. However, to address the residual aspects of Rule 57.01(0.a):

o The indicated hourly rates claimed for Mr McIlhargey, Mr Cornish and Ms Cull seem appropriate to me. The claimed hourly rate for Mr Armstrong nevertheless seems somewhat high, given his much more limited years of experience at the bar.

o No issue was taken with the amount of hours reflected in the written cost submissions submitted on behalf of Yvonne, and I generally find the indicated hours to be unsurprising and reasonable in the circumstances. I also was favourably impressed by the frequency of indications, in the Bill of Costs submitted on behalf of Yvonne, that fees relating to certain expended time repeatedly were reduced or not charged because they related to administrative time or other reasons. To me, that reflects an ongoing and sensible effort to monitor the reasonableness of time that would be charged, and in respect of which reimbursement would be sought. Having said that, I think there inevitably must have been a degree of overlapping time spent on the matter by Yvonne’s successive lawyers, (as each familiarized himself with the matter), and Kenneth should not be held responsible for inherent duplicative costs associated with Yvonne’s change of legal representation.

o The absence of a Bill of Costs relating to Nelly’s claim for costs makes it difficult to assess whether the time claimed was necessary or appropriate, and the merits of the objections raised in that regard by Kenneth’s written cost submissions. However, given the indications that Nelly prepared much of her material filed with the court, it does give rise, I think, to legitimate concerns about whether all the time spent on the matter by Mr Cornish was necessary or appropriate, particularly when that time is compared to the time spent on the matter by Mr McIlhargey, who assumed primary responsibility for presenting the position effectively shared by Yvonne and Nelly. Having said that, I think it reasonable to assume that Mr Cornish would have spent a fair amount of time familiarizing himself with the substantial material filed with the court, and not only that material which may have been prepared by his client.

o Similar challenges are raised by the absence of a Bill of Costs relating to Tina’s claim for cost reimbursement, and the corresponding lack of any detailed breakdown of the hours spent on the matter by Ms Cull and her clerk respectively, or the precise disbursements which are being claimed. On the one hand, I suspect that the amount claimed, and the much lower hourly rate claimed by Ms Cull, provides an indirect indication that she may have spent comparatively more time on the matter than Nelly’s counsel, which at first blush seems surprising, given the more limited focus of Ms Cull’s involvement. On the other hand, I can well imagine that Tina’s limitations entailed the spending of far more time than usual in establishing familiarity with a client and that client’s wishes, before those wishes could then be expressed properly to the court.

• As for Rule 57.01(0.b) and its mandated consideration of the amount of costs that an unsuccessful party could reasonably expect to pay:

o In this case, Kenneth chose not to supply me with any information detailing the time and disbursements devoted to the matter from his perspective.

o As emphasized by such authorities as Smith Estate v. Rotstein, 2011 ONCA 491, [2011] O.J. No. 3075, at paragraphs 50-51, leave to appeal refused, [2011] S.C.C.A. No. 441, and my own comments in Valastro v. The Corporation of the City of London, [2013] O.J. No. 1353, at paragraph 12(b), an unsuccessful party’s failure to supply information concerning its own costs is an important consideration in assessing the parties’ reasonable expectations, and permits an inference that the resources devoted to the matter by the unsuccessful party were comparable to those expended by the successful party.

o However, as emphasized by the provisions of Rule 57.01(0.b), viewed in context, the amount of costs that an unsuccessful party could reasonably expect to pay is but one factor to be considered.

o Moreover, I do not think the court’s independent obligation to determine what conforms to that “overriding principle of reasonableness” is eliminated or constrained by an unsuccessful party’s failure to tender its own bill of costs, or otherwise supply the court with an indication of the fees the unsuccessful party incurred in dealing with that matter.

o In this particular case, I think it also important not to lose sight of the fact that Kenneth was but one party, facing several parties, whose factual and legal submissions overlapped to some extent. In other words, it cannot readily be assumed that his costs were comparable to the combined costs of all the other parties.

• As for Rule 57.01(1)(c), in my view there was substantial complexity to the matter, at least insofar as the factual matrix was concerned.

• I also accept the submission, pursuant to Rule 57.01(1)(d), that the issues raised by the application were monumentally important to the parties, and to Tina, Yvonne and Nelly in particular. It is no exaggeration to say that Tina’s entire future effectively was at stake, along with the ability of her mother and sister to maintain any relationship with Tina in the future.

• In my view, the duration of this litigation was lamentable, and steps taken by Kenneth, (and/or taken by Julie with Kenneth’s apparent approval), complicated and lengthened the proceeding, within the meaning of Rule 57.01(1)(e). In a similar vein, steps were taken by Kenneth that, in my view, were improper, vexatious or unnecessary. To cite but a few examples:

o The litigation should never have been initiated in North Bay, given Tina’s habitual residence in Goderich, and the clearly anticipated opposition to Kenneth’s application. Ensuing legal discussion and debate concerning matters of jurisdiction, and the cost and delay associated with the eventual transfer of Kenneth’s application to Goderich, could have been avoided.

o Kenneth and Julie’s extended and unreasonable refusal to permit access to Tina by Yvonne and Nelly, and their similar unreasonable efforts to monitor and restrict telephone contact with Tina, inevitably led to a good deal of time and legal expense being devoted to addressing such interim access and contact. Early co-operation in that regard would have prevented the need for lawyer involvement to deal with such issues.

o Kenneth apparently insisted on oral examinations and, as noted above, made requests for a further oral examination of Yvonne. However, while completion of such examinations seems to have delayed the progress of the litigation considerably, the examinations do not seem to have advanced the matter substantively. No reliance was placed on the transcript of any such examination in the hearing before me.

o For the reasons outlined above, and in my substantive decision, the entire litigation might properly be characterized as vexatious, insofar as Kenneth and Julie seem to have been motivated by bitter dissatisfaction and resentment prompted by their discovery of Yvonne’s estate arrangements, rather than any genuine concern for Tina’s welfare.

• In my view, having regard to Rule 57.01(1)(g), there similarly are numerous aspects of this matter in respect of which Kenneth and Julie could and should have advanced matters by making appropriate admissions. To take but one important example, matters were delayed considerably by the need to appoint independent counsel for Tina, in order to ensure that the court was provided with an accurate view of her wishes. When that was done, it was confirmed that Tina’s wishes were quite different from representations, made by Kenneth and Julie, that Tina regarded their Bonfield residence as her new home, where she was entirely happy and wished to stay. An earlier, more candid and more accurate acknowledgment of Tina’s wishes would have forestalled much of that delay and associated expense.

[35] On the whole, having regard to the above considerations, the circumstances of the case, and the ultimate “cross-check” described above, (to ensure the overriding principle of reasonableness), I think justice will be done in this matter by an order directing Kenneth to pay the following costs, on a substantial indemnity basis, fixed in the following total amounts, (inclusive of fees, disbursements and HST), to the following parties:

• To Yvonne Roelandt: $18,000.00;

• To Nelly Burwell: $3,200.00; and

• To Martina Roelandt: $3,000.00.

[36] There was no specific evidence or indication as to the relative means of the parties, apart from confirmation of the reality that Tina has modest assets of her own. However, I think it not unlikely, given the circumstances described in the evidence, that Kenneth may not have ready access to funding necessary to make the above payments forthwith. He therefore will be given 90 days, from the release of this order, in which to satisfy his cost obligations.

[37] An order awarding the above costs, on that basis, should go accordingly.

Justice I F. Leach

Date: December 31, 2015

[^1]: See Rules 57.01(1)(0.a) and 57.01(1)(b).