Dawson v. Dawson
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Sheila Dawson and Rachel Harris Applicants/Respondents on motion
– and –
Josephine Dawson Respondent/Moving party on motion
– and –
Anthony Dawson, Michael Dawson, and the Office of the Public Guardian and Trustee Respondents
COUNSEL:
Ken Dunham for Sheila Dawson and Rachel Harris
Alyssa Tomkins for Josephine Dawson
Matthew Smith and Gary Boyd for Anthony Dawson
Michelle Marasco for the Public Guardian and Trustee
Heard: In writing
COSTS ENDORSEMENT OF MOTION TO APPOINT LITIGATION GUARDIAN
1Josephine Dawson seeks costs on her successful motion to have herself appointed as her husband Michael Dawson’s litigation guardian. She seeks substantial indemnity costs of $2923.88 against Sheila Dawson and Rachel Harris, and partial indemnity costs of $2172.99 against the Public Guardian and Trustee (PGT).
Background
2Josephine originally hoped that her motion would be unopposed and proposed that it be heard in writing.1 When the notice of motion was served in December 2019, however, Sheila and Rachel’s lawyer Mr. Dunham advised that they would oppose it and that he wished to cross-examine Josephine on her affidavit. Lawyers for Josephine and for Anthony Dawson subsequently sent Mr. Dunham emails asking about the purpose of the cross-examination and the basis for his clients’ opposition to the motion. He did not respond.
3In February 2020, Josephine’s counsel served an amended motion record. Since it appeared that the motion would be opposed by Sheila and Rachel, it was set to be heard in-person on June 16, 2020. The PGT’s counsel had also, by this time, weighed in with a letter on February 19, 2020 setting out its objections to the proposed appointment.
4On May 12, 2020, in the wake of province-wide restrictions on in-person hearings as a result of the Covid-19 pandemic, Josephine’s counsel Ms. Tomkins wrote to the court asking that the June 16 hearing proceed by telephone or teleconference. She also raised concerns about Mr. Dunham’s failure to respond to her emails asking again for the basis of Sheila and Rachel’s opposition and proposing a timetable for cross-examinations and the exchange of materials.
5I convened a case management conference on May 28 to determine Sheila and Rachel’s position on the motion and to provide directions on how it would be heard. Mr. Dunham failed to attend the case conference. I adjourned the conference to June 4, 2020 and directed Ms. Tomkins to make further attempts to communicate with Mr. Dunham by phone in the interim.
6On June 1st, 2020, Mr. Dunham spoke with Ms. Tomkins. He told her that he had been occupied with personal emergencies and apologized for not responding to her emails. He stated that Sheila and Rachel still intended to contest the motion and undertook to obtain their instructions on the mode and timing of a hearing.
7Mr. Dunham attended the continuation of the case conference on June 4, 2020. He apologized for his failure to attend on May 28 and announced that his clients were no longer opposing the motion. In light of this, I concluded that the motion could be heard in writing. I directed Josephine’s counsel to file her amended record along with the PGT’s February 2020 letter.
8In early July, having considered the arguments raised by the PGT, I asked its counsel and Ms. Tomkins to file further written submissions. On September 25, 2020, I issued an endorsement granting the motion.
Costs against Sheila Dawson and Rachel Harris
9Josephine seeks substantial indemnity costs of $2923.88 against Sheila and Rachel. She contends that some of her legal costs are directly attributable to their failure to communicate their position in a timely way, and that this failure attracts a higher level of costs.
10A party who loses a motion is generally required to pay the winning party a portion of its reasonable costs within in 30 days. In most cases, such costs are calculated on a partial indemnity basis; DUCA Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601, at para. 5. Judges however consider the specific circumstances of each case before exercising their discretion to fix costs pursuant to s. 131 of the Courts of Justice Act and r. 57.01(1) of the Rules of Civil Procedure.
11Having reviewed the chronology of events from December 2019 forward, I conclude that Sheila and Rachel are liable for some of Josephine’s costs.
12As Josephine acknowledges in her submissions, she would have had to bring the motion and provide the court with evidence and argument in support of the appointment even had all of the other parties consented to it. She is not entitled to recover costs she would have had to incur in any event and does not seek to do so. Josephine also acknowledges that some of her costs are attributable to the PGT, which opposed the motion. Sheila and Rachel are not liable for these costs either.
13Sheila and Rachel are however responsible for costs that are attributable to their lawyer’s conduct in respect of the motion. It may not have been necessary to hold the May 28 case conference had Mr. Dunham responded to emails sent by Ms. Tomkins and Mr. Smith over the preceding months. It would certainly not have been necessary to convene a second case conference on June 4 had Mr. Dunham attended the first one and sought instructions from his client in a timely way.
14Josephine’s counsel has submitted a spreadsheet showing the fees that, in her view, are attributable to Sheila and Rachel. They all relate to efforts to engage Mr. Dunham or to attendance at the case conferences. Josephine is entitled to recover these costs on a partial or substantial indemnity basis from Sheila and Rachel. These fees total $2875 or $3248.75 with HST.
15I am not, on the other hand, persuaded that Josephine is entitled to costs on a substantial indemnity basis.
16Substantial indemnity costs are the exception rather than the rule. They are awarded only where there has been “reprehensible, scandalous or outrageous conduct” by a party: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at p. 134; Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, at para. 43.
17At the June 4 case conference, Mr. Dunham said that he failed to respond to emails from opposing counsel and to attend the May 28 case conference due to a series of personal emergencies. In the early stages of the Covid-19 pandemic, many individuals faced personal challenges and prioritized the health and safety of family members over their professional commitments. This does not entirely excuse Mr. Dunham’s conduct, but it is relevant to my decision on the level of costs to be awarded.
18The PGT’s conduct in response to the motion is also relevant. In her February 19, 2020 letter, its counsel argued that an appointment of litigation guardian was not required and inappropriate, that Josephine was potentially in a conflict of interest, and that the PGT would oppose her appointment if it were not limited in scope. Sheila and Rachel never articulated any reason why the Court ought not grant the relief sought, nor did they make any argument that Josephine had to address. Their lawyer’s failure to co-operate with her counsel was frustrating but ultimately did not affect how or when the motion was heard. It was ultimately the PGT’s position that delayed the resolution of the motion.
19I conclude that Mr. Dunham’s conduct was unprofessional and discourteous, but that it did not rise to the level of conduct that justifies a costs sanction against Sheila and Rachel in the form of substantial indemnity costs. Josephine should accordingly recover partial indemnity costs from Sheila and Rachel, which I fix at $1949.25 inclusive of HST.
Costs against the PGT
20Josephine seeks partial indemnity costs of $2172.99 against the PGT. She says that it should be liable for the legal fees incurred as a result of its opposition to her appointment.
21The PGT contends that it should not be liable for any costs. It argues that, since it is a statutory agency dedicated to the protection of vulnerable citizens, it is liable for costs only where the court concludes that it behaved improperly or unfairly or adopted an untenable position.
Legal principles
22The PGT relies on Children’s Aid Society of Toronto v. K. (S.), [2010] OJ No. 6031 (QL); Koch (Re) (1997), 1997 CanLII 12265 (ON SC), 35 O.R. (3d) 71, [1997] O.J. No. 2506 (Gen. Div.); and Re S.(D.) (2003), 2003 CanLII 88994 (ON SCDC), 39 RFL (5th) 209 (ON SCDC). None of these decisions is squarely on point.
23Re S.(D.) and CAS of Toronto v. K.(S.) were child protection cases. Costs in those instances were governed by r. 24 of the Family Law Rules, O. Reg. 114/99, which provides that the winning party in a procedure is presumptively entitled to costs, but that this presumption does not apply in a child protection proceeding or to a party that is a government agency. In Re S.(D.), the Divisional Court stated that the rationale for this presumption “stems from the fact that a children’s aid society has a statutory obligation to initiate and pursue proceedings if there is reason to believe a child is in need of protection and it should not be dissuaded from the pursuit of its statutory mandate by costs considerations”.
24It is significant that the presumption that governed the result in these cases does not apply here. The Family Law Rules do not apply to this proceeding. Although the PGT also has a mandate to protect the interests of vulnerable persons, the legislature did not create a similar presumption in the Rules of Civil Procedure for proceedings involving capacity.
25Re Koch involved the liability of a capacity evaluator whose employer was paid a fee for the assessment of a person whose capacity was at issue in a proceeding before the Consent and Capacity Board. Quinn J. overturned the Board’s finding that the person lacked capacity to manage their affairs and awarded them their costs before the Board and on the appeal. He held that, although it is in the public interest not to deter evaluators from carrying out assessments, this must be weighed with the public interest that such individuals be held accountable for the manner in which they executed these duties. Quinn J. found that the assessor and the employer did not act out of a sense of duty but for profit and that the evaluator’s assessment was furthermore unreasonable.
26Re Koch is factually distinct from this case, because the PGT did not gain anything from opposing Josephine’s motion to appoint a litigation guardian. The principle that individuals performing statutory duties should be held accountable for the manner in which they perform them is relevant to this proceeding. Like the child protection cases, however, Re Koch does not resolute the central issue in this case, that is, whether a statutory agency such as the PGT is presumptively insulated from costs unless it engages in clearly unreasonable conduct or takes an untenable position.
27In Lee v. Toronto District School Board, 2008 CanLII 38261, 91 OR (3d) 787 (ONSC), Justice Ferguson addressed whether there is a special set of rules governing the award of costs against the PGT. In Lee, the Children's Lawyer, in its capacity as litigation guardian for the infant defendant in a personal injury action, unsuccessfully opposed a motion for production of school and police records. Counsel for the Children's Lawyer submitted that it should not be liable for the costs of the motion, on the basis that costs should not be awarded against a statutory litigation guardian unless that guardian pursues an issue which is frivolous or otherwise acts improperly. Ferguson J. rejected this argument and ordered the Children’s Lawyer to pay partial indemnity costs on the motion.
28In his reasons in Lee, Justice Ferguson began by considering the decision in Cameron (Public Guardian and Trustee of) v. Louden, [2002] O.J. No. 2184, [2002] O.T.C. 659 (S.C.J.), which was referred to approvingly by the Court of Appeal in Hockey-Sweeney v. Sweeney, 2004 CanLII 34840 (ON CA), [2004] O.J. No. 4412, 192 O.A.C. 118 (C.A.). He concluded that neither endorsed a general rule limiting a statutory litigation guardian’s exposure to costs to exceptional circumstances. In the passages in Cameron approved by the Court of Appeal, Aitken J. stated as follows, at paras. 31 and 32:
There is no statute law or rule that prohibits a costs award against a litigation guardian or more particularly against the Public Guardian and Trustee . . .
I glean from these rules [Rule 57.06] that in cases involving litigation guardians: (1) costs awards can be made against litigation guardians in the same fashion as they are made against other parties; (2) successful parties should be reimbursed for costs as they would be in no litigation guardian were involved in the case; and (3) litigation guardians should, if possible, be reimbursed for their costs — with those costs ultimately being paid by the party responsible for costs or by the person under disability.
29Ferguson J. concluded that these passages “are not consistent with a blanket policy that a statutory litigation guardian should be made to pay costs only if they act frivolously or improperly”.
30Ferguson J. then reviewed the policy concerns advanced to support a special costs regime for statutory agencies. He rejected the proposition that public officials might not fulfill their statutory duties because of the risk that the government might have to pay litigation costs. He further held that a policy of creating a special costs regime for a statutory agency such as the Children’s Lawyer would be contrary to the principled modern approach to costs articulated by the Court of Appeal in 1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), 2006 CanLII 35819 (ON CA), 82 O.R. (3d) 757, [2006] O.J. No. 4248 (C.A.).
31In 1465778 Ontario Inc., at paras. 26 and 27, the Court stated that the goal of costs awards was not only to indemnify the winning party, but to encourage settlement to deter frivolous actions and defences and to discourage unnecessary steps that unduly prolong litigation. Justice Ferguson endorsed the Court of Appeal’s observations about the risk to the fairness of the justice system if some parties are insulated from costs.
32I agree with and adopt Justice Ferguson’s reasoning in Lee. Parties do not benefit from a level playing field if one of them can bring unnecessary motions or take unreasonable positions in response to them without fear that they may be liable for the other side’s costs if they lose. The Court of Appeal’s concerns about fairness in 1465778 Ontario Inc. were made in the context of litigation involving pro bono or impecunious litigants. As found by Ferguson J., however, the same considerations prevail in a case where a party who is a statutory agency takes the position that it should not be liable for costs on a motion absent special circumstances. In fact, in my view, there is an even greater concern about maintaining a level playing field in a case involving a statutory agency, because it almost always has far greater resources than other parties to a litigation.
33The Children’s Lawyer was the litigation guardian for an infant defendant in Lee whereas the PGT is not Michael’s litigation guardian. This is not a meaningful difference. The PGT’s more limited role here is only relevant insofar as it may have fewer occasions to take steps that might attract a cost sanction.
34I conclude that there is no principled reason why the overall approach to costs in a case involving the PGT should be different than the approach in other civil proceeding. The modern purposes of costs awards, and the need to ensure access to justice by maintaining a level playing field, must guide the analysis. There is nothing in the Rules of Civil Procedure or the Substitute Decisions Act, 1992, SO 1992, c 30, that creates a special regime for the assessment of costs in a proceeding involving the PGT. There is no policy consideration that dictates that the PGT is immune from costs unless it has engaged in unfair or improper behaviour or taken untenable positions. The recognition of the PGT’s statutory mandate is a relevant, but not determinative, factor under r. 57.01(1).
Application of the principles in this case
35There are various r. 57.01(1) factors that support an award of costs against the PGT in this case. Josephine won the motion over the PGT’s objections. Her costs are reasonable. The hourly rates charged by her lawyers, and the time they spent responding to the PGT’s arguments, are within an acceptable and expected range. The outcome on the motion was important to Josephine and, judging from its submissions, important to the PGT as well.
36I find that the PGT’s statutory mandate to protect vulnerable persons to be a factor relevant to the exercise of my discretion pursuant to r. 57.01(1)(i). I find that this factor must be weighed against the PGT’s pursuit of arguments that were devoid of any merit.
37In its costs submissions, counsel for the PGT states that its submissions on Josephine’s motion were as follows: “if the Court saw fit to appoint a litigation guardian, the appointment ought to restrict the litigation guardian from making decisions about Michael’s capacity or choice of substitute decision maker”.
38The PGT’s submissions on the motion in fact went well beyond this. In addition to suggesting that Josephine’s appointment should be limited in its scope, the PGT contended that:
(a) The appointment of a litigation guardian for a person whose capacity is at issue is unnecessary in proceedings under the Act, because the other parties, the PGT and the court will protect the interests of a vulnerable person;
(b) An appointment in such proceedings is also unnecessary because the Court may direct the appointment of a lawyer to a vulnerable person under s. 3 of the Act; and
(c) Josephine’s appointment gave rise to concern because she might be in a conflict of interest.
39I rejected each of the PGT’s submissions as unfounded in law and the evidence on the motion, for the following reasons:
(a) Rule 7.01(2) gives the court discretion to appoint a litigation guardian for the person whose capacity is at issue in an application for guardianship under the Act. In other words, the Rules explicitly contemplate circumstances where an appointment is necessary to protect the interests of a vulnerable person.
(b) Contending that the appointment of s. 3 legal counsel obviates the need for a litigation guardian shows a profound misunderstanding about their respective roles.
(c) The PGT did not provide any examples of how Josephine might use her role as litigation counsel to advance her own interests in the litigation, Sheila and Rachel had not raised any conflict, and I did not identify an actual or apprehended conflict.
40Finally, with respect to the PGT’s submission that Josephine’s mandate as litigation guardian should be restricted if she were appointed, I noted that it is the Court, and not Michael’s litigation guardian, who will determine whether he lacks capacity and who should act as his substitute decision-maker. I therefore concluded that it would serve no purpose to limit the scope of Josephine’s appointment as proposed by the PGT.
41A party has the right to make submissions that the court ultimately rejects. A party should however avoid taking positions that are clearly inconsistent with legislation or established legal principles. The PGT’s submissions about the appropriateness and role of a litigation guardian fall into this category. By taking such an extreme position on the motion, I find that the PGT unnecessarily lengthened the proceedings and drove up Josephine’s costs.
42Weighing all relevant factors under r. 57.01(1), I conclude that the PGT should pay a portion of Josephine’s costs on the motion and fix them at $2172.99 inclusive of fees and HST.
Disposition
43Sheila and Rachel must pay Josephine costs of $1949.25, and the PGT must pay her costs of $2172.99, within 30 days of the release of this endorsement.
Justice Sally Gomery
Released: November 9, 2020