COURT FILE NO.: CV-20-59422
DATE: 20210713
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF the Substitute Decisions Act, 1992, S.O. 1992 c.30, as amended. Advocacy, Consent and Substitute Decisions Statute Law Amendment Act, 1996, S.O. 1996, sections 17 and 18;
AND IN THE MATTER OF the property of JOANA MARTINS
BETWEEN:
THE PUBLIC GUARDIAN AND TRUSTEE
Applicant
– and –
JOANA MARTINS and ALWYN MARTINS
Respondents
M. Phan, for the Applicant
S. Beeksma, for the Respondent J. Martins
A. Martins self-represented
– and –
MARTYN MARTINS
Non-party
D. Fonseca, for the non-party
HEARD: January 23, 2021; cost submissions due June 18, 2021
THE HONOURABLE Justice R. B. Reid
decision on costs
[1] The Public Guardian and Trustee (the “PGT”) sought an order confirming its refusal to issue a certificate of statutory guardianship to Alwyn Martins (“Alwyn”) in respect of his mother, Joana Martins (“Joana”), and a declaration that the PGT should continue to act as the statutory guardian of the property of Joana.
[2] The non-party, Martyn Martins (“Martyn”), is the brother of Alwyn and son of Joana. He sought an order that a certificate of statutory guardianship in respect of Joana be issued to him, but at the hearing withdrew that request and supported the position of the PGT.
[3] Joana sought an order that Martyn be appointed as her guardian rather than the PGT, or in the alternative that the PGT continue as guardian, in preference to the appointment of Alwyn in that capacity.
[4] Alwyn sought an order requiring that the PGT issue him a certificate of statutory guardianship in respect of Joana.
[5] By way of history, in May 2019, Alwyn applied to the PGT to replace it as statutory guardian of property in accordance with provisions of s. 17 of the Substitute Decisions Act, 1992 (the “SDA”). The PGT refused in writing, primarily because Joana Martins communicated her strong opposition to that appointment. In response, Alwyn gave written notice on October 16, 2019 that he disputed the PGT’s refusal to issue a certificate of statutory guardianship to him and as a result, the PGT sought a court order pursuant to s. 18 of the SDA.
[6] The question for the court was how to protect the best interests of Joana who is incapable of managing her own affairs: either under the auspices of the PGT or Alwyn? I concluded that the best interests of Joana were aligned with her own wishes, namely that the PGT rather than Alwyn should be confirmed as guardian of her property and therefore, for the reasons set out in my decision of March 5, 2021 (2021 ONSC 1623), I granted the order requested by the PGT.
[7] At the parties’ request, I permitted written submissions on the issue of costs according to a timetable with all submissions to be filed by June 18, 2021. Submissions were received from the PGT, Joana, and Alwyn. No submissions were received from Martyn.
Positions of the parties:
[8] The PGT claims costs in the all-inclusive amount of $5,091.78 on a partial indemnity scale. It requests an order that costs be payable by Alwyn based primarily on the successful result on the part of the PGT. In the alternative, the PGT seeks an order that its costs in the same amount be paid by Joana because the work was carried out for her benefit as a result of the request for review under s. 18 of the SDA.
[9] Joana requests a costs order in her favour against Alwyn in the all-inclusive amount of $5,435.91 on a partial indemnity scale, based primarily on her success in resisting the request of Alwyn that he be appointed statutory guardian for Joana.
[10] Alwyn submits that in preparing for and attending on the matter, he expended $1,724 in disbursements plus his own time in the amount of $7,650 calculated at $90 per hour. He did not engage counsel and therefore incurred no expense for legal fees. He acknowledges that while costs may be awarded against him in favour of the PGT, they should be in a reduced amount based on his circumstances. Alwyn requests that no costs be awarded in favour of Joana in that her interest was adequately protected by the position of the PGT.
Discussion:
[11] My discretion to award costs arises from s. 131 of the Courts of Justice Act. I have considered the factors which guide the exercise of that discretion found in rule 57.01 of the Rules of Civil Procedure.
[12] The PGT was required under s. 18 of the SDA to bring the matter to court based on Alwyn’s dispute to the PGT’s refusal to issue a certificate of statutory guardianship to him. Success is a presumptive factor in the award of costs under rule 57.01 and in this case, the PGT was successful.
[13] Alwyn submits that costs should not be awarded to the PGT since it is part of a publicly funded ministry of the Government of Ontario and is not financially dependent on cost recovery. I am unable to accept that submission. The PGT should not be considered differently from any other litigant simply because it is supported by taxpayer money. Policies underlying the costs rules include the indemnification of successful litigants, encouragement of settlement and the sanctioning inappropriate behaviour. It would be inappropriate to allow unsuccessful litigants to avoid the application of those policies simply because the successful party was publicly funded.
[14] A partial indemnity scale is appropriate, since there were no steps taken by either party that could justify the quasi-punitive application of the substantial indemnity scale.
[15] The hourly rates claimed by the PGT are reasonable, as is the number of hours spent in preparation for and attendance on the application.
[16] Alwyn submits that no costs should be awarded because he was motivated to request the guardianship in his mother’s best interests and that he acted professionally and with courtesy to all parties. He submits that he felt conscience-bound to dispute the PGT’s refusal to issue a certificate of statutory guardianship to him. Even accepting all those points to be true, they do not relate to the factors that the court must consider under rule 57.01 and the policies underlying the rule.
[17] Based on the foregoing, there will be an order that Alwyn Martins pay costs to the PGT fixed in the all-inclusive amount of $5,091.78.
[18] As to the costs claim by Joana, she was also successful although her initial position supported the appointment of Martyn as guardian. The hours and hourly rates claimed by her counsel are reasonable. Alwyn submits that the court should consider whether it is appropriate to award any costs to Joana on the basis that it was unnecessary for her to separately respond to the application in that she had a similar interest to that of the PGT. As well, to the extent that her response supported the position of Martyn, she was unsuccessful.
[19] While on one hand, the affidavit material filed by Joana was helpful to the court in arriving at its decision, on the other there was some lack of success (as to the claim that Martyn should be appointed guardian) and there was overlap with the interests protected by the PGT (as to her alternative claim that the PGT should continue as guardian). On that basis, there will be an order that Alwyn pay costs to Joana, but in the reduced all-inclusive amount of $3,500.
[20] Alwyn requests an extension of time to pay costs beyond the 30 days that is typically ordered. He submits that he was under a disability for eight months during which time he did not earn his regular income. I will accede to that request to the extent that while the order is effective as of this date, no enforcement proceedings are to be undertaken to enforce the order until six months have expired from this date.
[21] In summary, there will be an order as follows:
a. Alwyn Martins is to pay costs in the all-inclusive amount of $5,091.78 to the Public Guardian and Trustee.
b. Alwyn Martins is to pay costs in the all-inclusive amount of $3,500 to Joanna Martins.
c. No enforcement proceedings are to be taken as to the collection of the costs ordered until January 13, 2022.
Reid J.
Released: July 13, 2021
COURT FILE NO.: CV-20-59422
DATE: 20210713
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE PUBLIC GUARDIAN AND TRUSTEE
Applicant
– and –
JOANA MARTINS and ALWYN MARTINS
Respondents
– and –
MARTYN MARTINS
Non-party
decision on costs
Reid J.
Released: July 13, 2021