COURT FILE NO.: 03-061-16 DATE: 20181001 SUPERIOR COURT OF JUSTICE – ONTARIO
In The Matter of the Property and Personal Care of Dale Jebodhsingh
RE: Allan Socken, in his capacity as co-guardian for property of Dale Jebodhsingh, Applicant
AND:
Arvind Jebodhsingh, Sally Bell, Dev Jebodh, Dale Jebodhsingh, Judy Rampersad, Keith Jebodhsingh and the Office of the Public Guardian and Trustee, Respondents
BEFORE: Wilton-Siegel J.
COUNSEL: M. Husseini, for Keith Jebodhsingh A. Socken, Self-represented S. Eisen, for Arvind Jebodhsingh Judy Rampersad, Self-represented Dev Jebodh, Self-represented
HEARD: In Writing
COSTS ENDORSEMENT
[1] This Endorsement addresses the costs of the parties in respect of certain applications and motions described below.
Factual Background
[2] The proceedings arose as a result of protracted litigation beginning in 2011 concerning the guardianship of Dale Jebodhsingh (“Dale”) and the estate of Sheila Jebodhsingh, the mother of all of the parties, who are siblings of Dale. The guardianship dispute was settled by minutes of settlement that were incorporated into an order dated December 6, 2012 (the “Judgment”). Pursuant to that order, Allen Socken (“Allen”) and Keith Jebodhsingh (“Keith”) were appointed Co-Guardians for Property of Dale and Judy Rampersad (“Judy”) and Sally Bell were appointed Dale’s Guardians for Personal Care, with Dale to live with Judy.
[3] As a significant issue in the litigation between the parties was the treatment of the monies payable in respect of Dale under the “Passport” programme, I have set out the basic facts pertaining to this dispute as I understand them. The management plan of the Co-Guardians for Property, which was incorporated into the Judgment, treated Passport funds as Dale’s income. This is contrary to the mandate of Toronto Family Services, which administers the Passport programme. Accordingly, Dale risked disqualification from future Passport funding if the management plan was not amended. All parties appear to have agreed that an amendment to the management plan was necessary to correct this. However, the parties disagreed on how to deal with the Passport monies that had been received from the date of the Judgment.
[4] The Judgment contemplated that issues relating to the guardianships would be arbitrated. Judy had a number of claims as a result of an increase in her involvement as a caregiver to Dale over the level originally anticipated, including the treatment of the Passport programme monies. Judy claimed that, under the approved arrangement with Family Service Ontario, she was entitled to all of the Passport funds received in respect of Dale, given the nature of her involvement with him. These claims were arbitrated in accordance with the provisions of the Judgment. Among other things, the arbitrator’s award provided that Judy was entitled to all of the Passport monies received from the date of the Judgment.
[5] Allen was concerned with implementation of this award by the Co-Guardians for two reasons. He was concerned that payment of the monies previously received in accordance with the arbitrator’s award would breach the management plan and therefore the Judgment. He was also concerned that payment of the monies to be received in the future would deplete Dale’s estate, given the relatively modest level of Dale’s trust monies. After seeking legal advice, Allen took the position that the Co-Guardians for Property should bring a motion for directions under s. 60 of the Trustee Act, R.S.O. 1990, c. T.23 before any Passport monies were paid to Judy in order to protect the Co-Guardians from any claim for breach of fiduciary duty. Keith wanted to have the Passport monies paid to Judy and did not believe that such a motion was necessary.
[6] In addition to the issue of the need for a court order respecting the payment of the Passport monies, Allen and Keith were unable to agree on a number of other matters including the preparation of Dale’s tax returns and the accounts of the co-guardianship. In particular, preparation of the tax returns and the accounts required a determination of the proper treatment of the Passport monies received in Dale’s account and Socken’s legal bills. Matters were worsened by an issue pertaining to a will challenge brought by the Co-Guardians in respect of the will of another sister who died after the Judgment. This dispute primarily involved Keith and Arvind Jebodhsingh (“Arvind”). However, Allen sought legal advice on this matter as well.
[7] As a consequence of the foregoing matters, the relationship between Keith and Allen became acrimonious and hostile. Allen brought an application to resign as Co-Guardian and to pass his accounts to the date of the order sought, as he and Keith were unable to agree on the manner of preparing the accounts. Judy bought a motion seeking payment of the monies previously received under the Passport programme in accordance with the arbitrator’s award. Arvind brought a motion to replace Keith, as the remaining Co-Guardian for Property, with TD Canada Trust as a sole Guardian for Property. Keith opposed Arvind’s motion and subsequently brought a motion seeking an order confirming himself as the sole Guardian for Property as well as certain other relief, including an order that Keith and Allen pass their accounts and that the management plan be amended to deal with the Passport monies issue. After a court hearing, Allen brought a further application to pass his accounts which was the subject of notices of objection from Keith and Judy. Keith opposed Allen’s discharge and the passing of his accounts until the outstanding matters were addressed. Keith also provided accounts to which Arvind objected.
[8] Ultimately, the parties reached an agreement on all of the issues raised in the various motions other than costs (the “Settlement”). Under the Settlement, a third party, Philip Bradshaw, was appointed as a Co-Guardian for Property of Dale to act together with Keith in substitution for Allen. The Settlement contemplated that costs of the various motions would be determined by the Court.
Preliminary Comment
[9] As a general rule, I do not think it is advisable for parties to reach an agreement in multi-party litigation which leaves costs to be determined by the court where the court has had no involvement in the litigation in any meaningful manner. In this case, the cost claims of the parties are complex and are dependent on their own very different views of the facts giving rise to their applications and motions, and, therefore, of their respective merits. The matter was further complicated by a dispute between the parties regarding which documentary evidence could be put before the Court. The Court is not in a position to make a decision based on a full knowledge of the circumstances pertaining to the administration of the Co-Guardianship for Property or the various proceedings brought by the parties. The following determination reflects my best assessment of the merits of the positions of the parties and what is fair in the circumstances after a review of the extensive record.
Positions of the Parties
[10] The positions of the parties are summarized as follows.
Allen’s Position
[11] Allen seeks costs totalling $24,997.58 on an all-inclusive basis. These costs comprise partial indemnity costs of $9,992.50 representing himself, together with a disbursement of $11,750 plus HST for legal advice rendered to him by a law firm. Allen seeks these costs against Keith or, in the alternative, out of Dale’s assets.
[12] Allen’s position is that he was completely successful in his motion in that: (1) the Court ordered that Allen and Keith should separately file applications to pass their accounts; (2) Allen was removed as a Co-Guardian for Property pursuant to the Settlement; and (3) Allen’s accounts were ultimately passed, also pursuant to the Settlement.
Arvind’s Position
[13] Arvind does not seek any costs of his participation in the proceedings and resists costs sought against him by Keith.
[14] He says that the appointment of a neutral third party as a Co-Guardian for Property with Keith was a fundamental condition of the settlement in 2012 and was clearly in Dale’s best interest. He says that it was in Dale’s best interest that he bring his motion in the absence of any motion by either of the Co-Guardians to appoint a replacement for Allen and Keith’s intention to act as a sole Guardian for Property. He says further that it was necessary to seek the appointment of TD Canada Trust to avoid further legal costs in the future as a result of likely conflicts between Keith and any other third-party appointed as a Co-Guardian for Property. In other words, he did not trust Keith to act as the sole Guardian for Property and did not believe that Keith could work co-operatively with any other individual appointed by the Court.
Keith’s Position
[15] Keith seeks payment of his costs, which total $52,007.38 on a substantial indemnity basis and $35,676.06 on a partial indemnity basis. He seeks substantial indemnity costs against Arvind in the amount of 75% of his costs, being $39,005.53, and against Allen for 25% of such costs, being $13,001.84. Alternatively, he seeks the full amount of his substantial indemnity costs from Arvind and Allen jointly and severally. (I assume that “jointly or severally” in his costs submissions in an inadvertent error).
[16] Keith says that he was entirely successful in the proceedings as he was permitted to continue to act as Dale’s Co-Guardian for Property. With respect to his claim for costs against Arvind, he says that Arvind failed to provide any evidence of untrustworthy behaviour on his part despite his allegations. He relies on the fact that the Court ultimately approved the accounts of the Co-Guardians. With respect to his claim against Allen, he says that the Passport issue and the completion of Dale’s taxes were required to be addressed before Allen could be released as a Co-Guardian and therefore his opposition to Allen’s application was justified. In addition, he says his opposition to the appointment of TD Canada Trust as the sole Guardian for Property was necessary to protect Dale’s estate, given the level of fees that would be charged by TD Canada Trust.
Dev’s Position
[17] Dev submits that Keith should not be responsible for any costs including his own. He says Keith’s costs should be borne by Arvind or, in the alternative, by Dale’s estate. In his view, there were no grounds for removing Keith as a Co-Guardian for Property and that the costs to Dale’s estate of the appointment of TD Canada Trust would have been excessive.
[18] With respect to Allen, Dev submits that Allen should bear his own costs for two reasons that he says increased the costs of the proceedings. First, he says Allen brought his application without fulfilling his obligations to complete Dale’s tax returns. Second, he says Allen did not accept the decision of the arbitrator regarding the treatment of Passport income.
Judy’s Position
[19] Judy says she incurred costs of approximately $13,000 in bringing her motion for reimbursement of monies out of the Passport funds in respect of her services. This matter was also resolved pursuant to the Settlement. She does not seek any of her costs for these proceedings. Judy takes essentially the same position as Dev regarding both Keith’s fees and Allen’s fees for the same reasons as Dev.
Principal Determinations Relevant for the Conclusions in this Endorsement
[20] In reaching the determinations herein, the following considerations are relevant.
[21] First, the starting point must be the Court’s concern for the best interests of Dale. Dale was 48 years old at the time these proceedings began. He has Down Syndrome and many health issues which will only increase with age. His trust fund was approximately $300,000. He has a small income plus the monies made available under the Passport program for his personal care and activities. His expenses exceed his income by approximately $25,000 annually. There is therefore a serious concern for preservation of his estate to the extent possible. Further, these proceedings did not benefit Dale. Instead, they addressed issues among the parties in their capacities as Co-Guardians. There is, therefore, no basis for an award against Dale’s Estate.
[22] Second, guardianship of a person, whether of property or personal care, is a responsibility not a right. It is not clear that Keith understands this from his actions in the proceedings.
[23] Third, Co-Guardianship is not an easy relationship. However, if parties accept such obligations, particularly in respect of a relatively small estate, they have an obligation to work out issues between them involving differing views of their legal obligations on a practical and cost-effective manner. Keith and Allen were clearly unable to do so in this case and must bear some responsibility for this. It is unfair to charge Dale’s Estate with costs for their inability to work out difficulties between themselves.
[24] Fourth, these matters involve siblings who have a long history of difficult relationships. In particular, there is evident acrimony between Arvind, on the one hand, and Keith, Judy and Dev, on the other hand, that stems from, at least, the proceedings in 2011 and 2012.
[25] Fifth, there have been no findings by the Court of any mismanagement of Dale’s assets by either Allen or Keith. However, that is because all matters were ultimately settled between the parties. Ultimately, what is more important is that all of the parties consented to the passing of the accounts of the Co-Guardianship of Keith and Allen. Accordingly, I have proceeded on the basis that the parties themselves, including Arvind, have concluded that there was no mismanagement.
[26] Sixth, while Arvind was entitled to raise the issue of whether the principle of two Co-Guardians should be maintained, there was nothing sacrosanct about that principle. It was reasonable to revisit the necessity of such arrangement after three and a half years’ experience.
[27] Seventh, while Allen’s position on the potential conflict between the Judgment and the arbitration decision might have appeared technical, he was entitled to raise the issue as a solicitor concerned with compliance with his professional obligations. Keith’s unwillingness to deal with that issue in a manner which avoided litigation prompted much of what followed – namely, Allen’s application to withdraw and Arvind’s motion in response. Keith must bear some responsibility for that.
[28] Eighth, these proceedings appear to have been prompted most immediately by Allen’s concerns regarding the Passport funds, both past and future, which Keith did not share. Rather than assist Allen to resolve his concern, Keith opposed him and sided with Judy in her request for payment to her of the previously received Passport monies in accordance with the arbitrator’s award. This prompted Allen to seek to resign, which Keith also opposed, to Allen’s applications, and to Arvind’s motion, based on his distrust of Keith. This produced Keith’s response. Each of Keith, Arvind and Allen say they offered to settle on terms that were reflected in the Court’s order implementing the Settlement. I do not think that is accurate in the case of any of their offers. Regardless, because the Court order was on consent, Rule 49.10 does not apply to these offers. Accordingly, there is no basis for an award of costs on a substantial indemnity scale.
Analysis and Conclusions
[29] I will deal with the claims of Allen, Keith, Arvind and Judy in that order.
Allen’s Costs
[30] Allen’s costs include a claim for legal services rendered to him as well as a claim for his own legal services in representing himself. The former is reasonable. He sought legal advice in circumstances in which there was a reasonable, if technical, concern that could not be resolved in discussions with his Co-Guardian, Keith, who should have been responsive to finding a consensual solution that resolved Allen’s concern. On the other hand, in the absence of evidence that Allen’s personal time represented an opportunity cost in the form of lost business, the remainder of his claim cannot succeed.
[31] Accordingly, he is awarded costs of $11,913.50 plus his other disbursements for a total of $13,097.25. Such costs are to be payable by Keith in view of his actions described above.
Keith’s Costs
[32] Keith’s costs total $35,676.06 on a partial indemnity basis, of which $28,905 represents legal fees. This represents 130 hours of legal time and, apparently, 24.2 hours of counsel’s assistant’s time in document preparation. The latter is not a proper charge.
[33] The 130 hours compares with approximately 38 hours for Allen and 136 hours for Arvind’s counsel. This, in turn, reflects the fact that the majority of the time spent by Keith’s counsel was directed to opposing Arvind’s motion. The 75/25 split in Keith’s claim is a further reflection of this allocation of time.
[34] Given the determination above regarding Allen’s claim, I see no basis for awarding 25% of Keith’s costs against Allen. He should bear those costs himself. With respect to the remaining costs, being the 75% attributable to responding to Arvind’s claims, I find that Keith should be entitled to reasonable costs on a partial indemnity basis. In my view, given the relative complexity of the issues, and the importance of the matters at issue, reasonable costs would have been approximately $23,000.
[35] I also find that these costs should be payable by Arvind. Arvind’s application was based on an assertion that Keith could not be trusted to act as the sole guardian for property of Dale. However, he failed to produce any evidence to support this assertion. In the circumstances, therefore, Arvind had no basis for his application, which was opposed on the reasonable grounds of increased costs to an estate with limited assets. The fact that the parties resolved the outstanding matters by appointing a third-party Co-Guardian for Property together with Keith is not evidence in support of Arvind’s position. Nor is it evidence of a “success” on this application. Given his own costs of approximately $28,000, Arvind would reasonably expect Keith’s costs to be in the same range. Accordingly, Arvind is to pay Keith costs in the all-inclusive amount of $23,000.
The Costs Claims of Arvind and Judy
[36] As neither Arvind nor Judy seeks their costs of these proceedings, none are awarded in their favour.
Wilton-Siegel J.