COURT FILE NO.: CV-18-101-ES

DATE: 2019/08/06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Marjorie Howard Johnson and Griffin Howard Johnson, Applicants

AND

Elizabeth Anne Howard and The Public Guardian and Trustee and Jon Howard, Respondents

COURT FILE NO.: CV-18-252-00ES

DATE: 2019/08/06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jon Howard, Applicant

AND

Elizabeth Anne Howard and The Public Guardian and Trustee and Marjorie Howard Johnson and Griffin Howard Johnson, Respondents

BEFORE: Justice R. Ryan Bell

COUNSEL: Dishad (Dilly) Mohammed, for Marjorie Howard Johnson and Griffin Howard Johnson

K. Gordon Gwynne-Timothy, for Jon Howard

Claire Kadwell, for Elizabeth Howard

No one appearing for The Public Guardian and Trustee

HEARD: July 24, 2019

ENDORSEMENT

Overview

Overview

1The parties have resolved these competing guardianship applications except for the issue of costs. On July 24, 2019, I signed judgment appointing CIBC Trust Corporation as Elizabeth Howard’s guardian of property and appointing Marjorie Howard Johnson, Griffin Howard Johnson, and Jon Howard as joint guardians of the person for Elizabeth.

2Marjorie and Griffin are Elizabeth’s daughter and son. Jon is Elizabeth’s brother. Counsel was appointed for Elizabeth pursuant to s. 3 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”).

3Marjorie and Griffin seek their costs of the applications as against Jon, on a full indemnity basis, in the approximate amount of $33,200. Marjorie and Griffin do not seek to recover any costs as against Elizabeth.

4Jon’s position is that he is entitled to recover his costs of the proceeding, on a substantial indemnity basis, from Marjorie and Griffin, and in the alternative, from Elizabeth. His substantial indemnity costs are approximately $31,500. If his costs are ordered to be paid by Marjorie and Griffin, Jon asks that they be “topped up” from Elizabeth’s assets by way of a “blended” award. In addition, Jon seeks an order that the outstanding balance of an account for legal services rendered by the office of G. Edward Lloyd be paid by Elizabeth. The outstanding balance is $8,349.62.

5Elizabeth’s position is that she should not have to pay costs in this proceeding, and she should not be responsible for the outstanding balance on the invoice.

6Pursuant to s. 3(2) of the SDA, Elizabeth is responsible for the legal fees incurred by counsel acting on her behalf. Counsel has provided a bill of costs which I reviewed. I am satisfied that the amounts claimed are reasonable and were properly incurred on Elizabeth’s behalf. Section 3 counsel is entitled to her costs in the amount of $15,521.83, inclusive of fees and disbursements. An order shall go accordingly.

7For the following reasons, I make no other orders with respect to the costs of these proceedings.

Analysis

Analysis

(i) Elizabeth’s responsibility for costs of the guardianship applications

Elizabeth’s responsibility for costs of the guardianship applications

8I deal firstly with whether Elizabeth should be responsible for any of the applicants’ costs associated with these proceedings, recognizing that it is only Jon who seeks a costs order involving Elizabeth’s estate.

9The SDA does not deal specifically with the costs of guardianship applications. Section 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure therefore govern.

10As the Court of Appeal made clear in McDougald Estate v. Gooderham, 2005 CanLII 21091 (ON CA), [2005] O.J. No. 2432, at para. 80, estates litigation, like any other form of civil litigation, operates subject to the general civil litigation costs regime, except in a limited number of circumstances where public policy considerations permit the costs of all parties to be ordered paid out of the estate. The “loser pays” principle brings needed discipline to civil litigation by requiring parties to assess their personal exposure to costs before commencing a lawsuit or initiating a motion. Given the charged emotional dynamics often present in estates litigation, an even greater need exists to impose the discipline of the general “loser pays” principle (Salter v. Salter Estate, 2009 CanLII 28403 (ON SC), 2009 CarswellOnt 3175 (Ont. S.C.J.)).

11As D.M. Brown J., as he then was, observed in Fiacco v. Lombardi, 2009 CarswellOnt 5188 (Ont. S.C.J.), at para. 32, these comments apply with equal force to capacity litigation involving incapable persons, with some modification to fit the particularities of guardianship applications.

12When faced with a claim for costs against the estate of an incapable person, the court must examine what, if any, benefit the incapable person derived from the legal work which generated those costs. In Fiacco, at para. 36, D.M. Brown J. recognized that,

[w]hile bona fide disputes may exist amongst those interested in the well-being of the incapable person as to who should be appointed her guardian, a significant risk exists that a contested guardianship application may lose sight of its purpose – to benefit the incapable person – and degenerate into a battle amongst siblings or other family members, some of whom may have only their own interests at heart. In such circumstances courts must scrutinize rigorously claims of costs made against the estate of the incapable person to ensure that they are justified by reference to the best interests of the incapable person.

13Both applications sought relief relating only to substitute decision-making for Elizabeth and related relief under the SDA; however, it is evident from the parties’ written materials, oral submissions, and the quantum of the costs claimed, that there were a number of ancillary issues pursued by Marjorie, Griffin and Jon. Ultimately, the applications were resolved on consent. Elizabeth has received a benefit because her property will now be managed for her benefit by the appointed guardian of property and Marjorie, Griffin and Jon, guardians of the person, will act for Elizabeth’s benefit in accordance with the approved guardianship plan. However, I fail to see how Elizabeth derived any benefit from the battles that ensued amongst her family members in the context of the competing applications.

14Applying the principles which must guide the court’s exercise of its discretion on costs, there is no basis to justify a “top up” in respect of Jon’s costs from Elizabeth’s estate. In Sawdon Estate v. Sawdon, 2014 ONCA 101, at para. 97, the Court of Appeal recognized that the availability of a blended costs order in estates litigation gives the court the ability to both respect the public policy considerations involved and maintain the discipline imposed by the “loser pays” principle. To make a “blended” order of the nature requested by Jon in this case would ignore the very purpose of a guardianship application – to benefit the incapable person – and would encourage family members to opt for litigation in contested guardianship cases, rather than to resolve their differences.

(ii) The outstanding legal account

The outstanding legal account

15I do not agree with Jon’s claim that Elizabeth’s estate should be responsible for the outstanding balance on the invoice for legal services for several reasons. First, the invoice is with respect to legal services provided prior to the appointment of s. 3 counsel. The fees relate to an alleged joint retainer by Jon and Elizabeth, but the reminder notice is made out to Elizabeth alone and is “Re: Application for Guardianship.”

16Second, it is not clear what benefit there was to Elizabeth in the services provided by Mr. Lloyd’s office.

17Third, the only evidence as to Elizabeth’s capacity at the time to instruct counsel, Mr. Lloyd and Mr. Gwynne-Timothy, comes from Jon. Jon is represented in these proceedings by Mr. Gwynne-Timothy, and Jon would be responsible for outstanding balance on the invoice if it is not paid by Elizabeth.

18In these circumstances, I decline to order Elizabeth’s estate to pay the outstanding balance of $8,349.62 in relation to legal services rendered prior to the appointment of s. 3 counsel.

(iii) Costs as between the competing applicants

Costs as between the competing applicants

19As between the competing applicants, I make no order as to costs. This is an appropriate case for each side to bear their own costs. The costs incurred by both sides are comparable. More importantly, the competing applications were resolved on consent. Viewed in this light, all applicants achieved success on the issues relating to substitute decision-making for Elizabeth.

Summary

Summary

20I order that section 3 counsel is entitled to her costs from the estate in the amount of $15,521.83, inclusive of fees and disbursements. There shall be no other orders as to costs of these proceedings.