INTRODUCTION

[1] The parties are unable to settle the terms of the formal Order following on my decision of December 11, 2018. The principal disagreement rests with the compensation to be allowed for Ms. Perreault. There is also a dispute over the question of whether or not HST is payable.

[2] I have reviewed the respective submissions. I see that counsel for Ms. Perreault has conceded some of the more minor concerns relating to the recitals and the acknowledgment that Messrs. Roger Daniel Gosselin and Benoit Cardinal did not appear though duly served with the Application at issue.

[3] It would also appear that the parties have reached agreement on the account of the $6,000.00 reduction in the Revenue Disbursements.

[4] With respect to the appropriate compensation for Ms. Perreault as Attorney, the submissions advanced by counsel on behalf of Mr. Cardinal amount to an attempt to re-litigate the issue of Ms. Perreault’s compensation.

[5] For ease of reference, the two principal reductions to Ms. Perreault’s accounts related to the $6,000.00 as discussed in paragraphs 95 and 96 of my decision of December 11, 2018, and the management fee of $14,181.47 as discussed in paragraph 98 of the same decision.

[6] Insofar as counsel for Mr. Cardinal wish to capitalize on paragraph 46 of my decision where I merely recorded a proposal made by Ms. Perreault’s counsel on how to respond to Mr. Cardinal’s challenges to the sum of $43,000.00, the possible duplication in accounting for the care of Mr. Benoit, and the fee she claimed as attorney, I hasten to note that I did not accept that proposal. Instead, I exercised my inherent discretion to reduce the Revenue Disbursements claimed by Ms. Perreault by $6,000.00. I left it to the parties to determine how they would treat the sum of $6,000.00.

[7] Concerning Ms. Perreault’s compensation as Attorney, the total claim advanced to the court was the sum of $37,148.86 inclusive of HST. Of that sum, the only figure that was disallowed was the management fee of $14,191.47. There was no dispute over the remaining sum of $22,967.39 and accordingly that is the accepted sum for Ms. Perreault’s compensation as Attorney. I disagree with the submissions counsel for Mr. Cardinal to the effect that Ms. Perreault’s compensation as Attorney for the administration of Mr. Benoit’s affairs was not addressed.

[8] As to whether Ms. Perreault has already been paid some or all of her allowed expenses, I do not recall any evidence on that point. It is in part for that reason that in paragraph 96 of my decision, I left the accounting / reconciliation of the particular figures to the parties.

[9] Although I note Mr. Allison’s current representations to the court that Ms. Perreault has not been paid, I would require formal evidence on that point to be able to make such a finding. Cognizant and concerned over the time and resources already spent on this case, for the purposes of settling the Final Order the following language is appropriate:

THIS COURT ORDERS that Ginette Perreault is entitled to be paid fair and reasonable compensation for services as Attorney and for disbursements expended in administering the affairs of the estate during the period of January 28, 2008 to June 27, 2015 in the sum of $22,967.39.

THIS COURT FURTHER ORDERS that in the event that Ginette Perreault has received any payment from the estate and that such payment amounts to an overpayment, such overpayment shall be deducted from her said compensation as Attorney. If there is no overpayment, then there will be no need for any adjustment to the sum of $22,967.39 and she shall be paid that sum.

[10] The Applicant has also raised a concern over the claim for HST. This concern was not raised before me during the application when the parties made their submissions on the various figures and claims at issue. I am uncertain if the thrust of what the Applicant is saying amounts to a request to revisit Mr. Allison’s figures. If it does, I note that to reopen and reexamine Ms. Perreault’s 550 plus pages of accounting would be entirely disproportionate to the issue at hand and I am not prepared to undertake that task.

[11] Insofar as the wording of the Final Order is concerned, the sum of $37,148.86 which was claimed by Ms. Perreault was inclusive of HST. In the result, my awarding of $22,967.39 is also inclusive of HST. To include in the Order “plus applicable HST” would be to claim HST two times. It would be appropriate, though not essential or necessary to insert after the awarding of the sum of $22,967.39 “inclusive of any applicable taxes”. Or, the final Order could be left silent on the HST.

[12] On the subject of costs, I have no objection to the proposed schedule of submissions, but such submissions are to be limited to five pages double-spaced, exclusive of a Bill of Costs. As well, there shall be no Reply. I also strongly encourage counsel for both sides to be reasonable in their respective claims and if possible, to reach agreement. I consistently expressed my concerns over the sum at stake and the proportionality of the challenge. As counsel consider their respective positions, I remind them that ultimately, the overall adjustments to the accounts related to two sums: a $6,000.00 reduction to the Revenue Disbursements, and the reduction of Ms. Perreault’s attorney fee by the sum of $14,181.00.

[13] Finally, to expedite this process, I ask that counsel collaborate to submit to my office a draft Final Order in accordance with this endorsement for my review. If I am satisfied with the proposed draft, I will sign it and then see to it that it is issued and entered so that any delays are minimized.

Tzimas J.

Date: October 9, 2019

COURT FILE NO.: CV-16-1090

DATE: 20191009

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Roger Cardinal, Applicant

AND:

Ginette Perrault, Respondent

BEFORE: TZIMAS J.

COUNSEL: Sophie Sauvé and Christian Pilon, Counsel, for the Applicant

R. Dean Allison, Counsel, for the Respondent

ENDORSEMENT

Tzimas J.

Date: October 9, 2019

Cardinal v. Perreault, 2019 ONSC 5734

Case Summary

INTRODUCTION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues