ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Public Guardian and Trustee
Applicant
– and –
Ana Friesen
Respondent
Sarah Jones, for the Applicant
Patricia Brown and Alyssa Jarvis, for the Respondent
HEARD: April 19, 2022, via Zoom
RULING ON COSTS
OVERVIEW
1This matter involved an application brought by the Public Guardian and Trustee (“PGT” or the “applicant”) to be appointed as guardian for the property of Ana Friesen (“Ana” or the “respondent”). Ultimately that order was made on consent and now the PGT seeks an order for costs. The respondent opposes the court making such an order.
BACKGROUND
2This matter began with an application filed by the PGT pursuant to ss. 22, 25 and 79 of the Substitute Decisions Act, 1992, S.O. 1992, C. 30 as am. (“SDA”) on August 5, 2020. At that time, the PGT was seeking an order declaring that Ana was incapable of managing her property and, as a result, it was necessary for decisions to be made on her behalf.
3In addition, the PGT was seeking an order that Ana submit to an assessment of her capacity to manage property. They were also seeking other related relief including an order for the appointment of counsel for her, pursuant to s. 3 of the SDA and that reasonable legal fees for counsel be paid from the property of Ana Friesen. The PGT was also seeking an order for its costs of the application on a substantial or full indemnity basis payable from the property of the respondent.
4Briefly stated, the basis for the application was that the respondent, who has been diagnosed with schizophrenia, paranoia and depression and hospitalized on a number of occasions as a result, has significant assets, approximately $1.6 million dollars, however, she had been going through her assets quickly and is unable to manage her own property. Ana’s sister and parents were unwilling to take on the role of guardian or to assist in the management of her property.
5Accordingly, the PGT Guardianship Investigations Department commenced an investigation on December 3, 2019. As a result of that investigation, this application was brought and by order of Bondy J. dated October 21, 2020, Ana was required to undergo a capacity assessment by a qualified capacity assessor pursuant to s. 79 of the SDA.
6Ana was assessed by Kelly-Ann Spezowka, a qualified capacity assessor who found her to be incapable of managing her property. Ms. Spezowka determined that the respondent’s memory and thinking are impaired which impacts her ability to make reasoned decisions in the basic management of her finances.
7On February 25, 2021, Mr. Robertazzi, on behalf of the PGT, emailed Ms. Friesen to attempt to arrange a date for hearing of the application. He had arranged with the trial coordinator of the Superior Court to have the matter scheduled for April 30, 2021. At that time, he provided Ana with information regarding the Law Society Referral Service. Ana responded by email indicating that she had other obligations around that time and, as a result, she was seeking a later date. She also indicated that she wished to retain counsel herself. Ultimately, a hearing date was arranged, to be conducted by Zoom, on June 3, 2021.
8On June 3, 2021, the parties appeared before me and Ms. Brown indicated she was counsel of record. Ms. Brown indicated that she had only recently been retained and required time to review the material filed and file responding material. Accordingly, the matter was adjourned to July 14, 2021, for hearing.
9On July 14, 2021, the court made a temporary order on consent of the parties, pursuant to s. 79 of the SDA. The respondent was seeking to have another capacity assessment conducted by a certified capacity assessor of her choosing. Pending that further assessment, and based on the assessment of Ms. Spezowka, under s. 27(6) of the SDA, the court made an order appointing the PGT as temporary guardian of the respondent’s property with conditions. The matter was adjourned for continuation to October 27, 2021.
10Because the above-noted order was only effective for 90 days, the parties appeared before Verbeem J. on October 12, 2021, to extend that order to the date scheduled for hearing, October 27, 2021. However, on October 20, 2021, at the request of counsel for the respondent, Ms. Jervis, the date set for continuation of the hearing was adjourned to November 16, 2021, and the temporary order of Verbeem J. was extended to that same date.
11On November 16, 2021, the parties appeared before me by Zoom. Ms. Jones was representing the PGT and Ms. Jervis appeared on behalf of the respondent. On consent, an order was made to extend the order for temporary guardianship of the property of Ms. Friesen and the matter was adjourned for hearing on February 28, 2022, with the issue of costs reserved to the final disposition of the application.
12On February 28, 2022, the parties appeared before me by Zoom; Ms. Jones appeared on behalf of the PGT and Ms. Jervis for the respondent. At that time, an order was made on consent for full guardianship of the property of Ms. Friesen by the PGT. The matter was thereafter adjourned sine die to be returned on 30 day’s notice by either party. The only outstanding issue was the issue of costs which was adjourned to March 15, 2022, and then adjourned further to April 19, 2022, when it was argued.
THE POSITION OF THE PARTIES
13The PGT is seeking costs in the amount of $21,173.37 inclusive of HST and disbursements which includes services performed by three different lawyers, with the most senior lawyer, Dermot Moore, waiving a majority of his fees, and 68.25 hours spent by investigator Denise Hannivan at the rate of $100 per hour. All student time spent on this file was waived.
14The PGT relies on s. 27(3.1) of the SDA which mandates the PGT to commence an application once the investigation is complete, and s. 8 of the Public Guardian and Trustee Act, R.S.O. 1990, c. P.51 (“PGTA”), which permits the PGT to charge fees for services rendered by its employee and agents and to deduct its fees and expenses from the property held for the person. The Attorney General must approve the rate charged. The applicant’s position is that in a case of this nature, given the statutory authority to charge fees, that r. 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, does not apply.
15In this case, there were five court appearances, and a motion in writing filed in addition to the initial application and the material filed in support. Many of those adjournments were at the request of the respondent because she was having difficulty in arranging an independent capacity assessment. Accordingly, the applicant argues that given the fees that have been waived, and the time spent by the PGT which ultimately resulted in a consent order, the cost order sought is reasonable.
16The respondent disagrees with the finding of incapacity. She argues that there should be no order made for costs or, in the alternative, that the amount of costs sought by the applicant is excessive. Further, the respondent takes the position that she was a self-represented litigant at the outset of these proceedings (although according to her submissions, she retained counsel through Legal Aid Ontario on May 11, 2021), that the PGT could have taken steps to have counsel appointed at the outset to make the process more expeditious.
17The respondent argues that r. 57 of the Rules of Civil Procedure applies to the circumstances of this case and that she has not conducted herself in a manner that would justify an order of costs being made against her. She argues that her assets are her own and the PGT is seeking to take those assets from her in order to satisfy their claim for costs.
18She argues that it is fundamentally unfair to permit the PGT to recover its costs from the respondent due to the significant power imbalance between the parties and asks the court to dismiss the request of the PGT for costs.
THE LEGAL PRINCIPLES
19The applicant relies on s. 8 of PGTA. Sections 8(1) to (1.2) state the following:
Fees
8 (1) The Public Guardian and Trustee may charge fees for anything done by the Public Guardian and Trustee under this or any other Act. 1996, c. 2, s. 75 (3).
Fees
(1.1) The Public Guardian and Trustee may charge fees for services rendered and things done by his or her employees and agents. 1997, c. 23, s. 11 (2).
Reimbursement for expenses
(1.2) The Public Guardian and Trustee is entitled to be reimbursed for expenses incurred by the Public Guardian and Trustee or his or her employees or agents in respect of services rendered and things done under this or any other Act.
20Section 8(3.1) of the PGTA permits the Public Guardian and Trustee to deduct fees and expenses from the money held for a person, estate or trust.
21Section 8(4) of the Act states:
(4) This section prevails over a provision relating to fees in any other Act, except subsection 40 (3) of the Substitute Decisions Act, 1992.
22Section 40(3) of the SDA states:
(3) The guardian or attorney may take an amount of compensation greater than the prescribed fee scale allows,
(a) in the case where the Public Guardian and Trustee is not the guardian or attorney, if consent in writing is given by the Public Guardian and Trustee and by the incapable person’s guardian of the person or attorney under a power of attorney for personal care, if any; or
(b) in the case where the Public Guardian and Trustee is the guardian or attorney, if the court approves.
23When read together, those provisions seem to be determinative of the issue of entitlement and quantum of costs available to the PGT and, accordingly, r. 57 of the Rules of Civil Procedure would not apply to the issue of costs in these circumstances.
24Rule 57 sets out guidelines for a court to consider when it exercises its discretion under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C 43, to make an order for costs in the context of a civil matter.
25The applicant relies upon the decision in The Public Guardian and Trustee v. MacFarlane, 2021 ONSC 1070, a decision of Corthorn J. After determining in that case that the PGT should be appointed as the guardian of property for the respondent, the court went on to consider the request by the PGT for payment of its costs from the estate of the respondent. In that case, the court determined the following at para. 41 after considering s. 27(3.1) of the SDA and s. 8 of the PGTA:
In summary, the PGT has the statutory authority to charge and deduct its legal fees and expenses, in respect of this application, from the funds it holds for Ms. MacFarlane. I find that the PGT is entitled to its costs of the application. The application was pursued on an efficient, cost-effective basis, with regard to Ms. MacFarlane’s rights, and on the basis of materials that were well-prepared and of assistance to the court throughout.
26In that case, Corthorn J. determined that the PGT was entitled to costs and that the costs sought were reasonable.
ANALYSIS
27In my view, s. 8 of the PGTA and, in particular, s. 8(4) of the Act is determinative of this issue. The PGT is statutorily entitled to seek an order for costs, and if it does so, that Act takes precedence over r. 57 of the Rules of Civil Procedure. The respondent has not pointed to any authority to the contrary.
28Rule 57 refers to the factors that a court should take into account in exercising its discretion pursuant to s. 131 of the Court of Justice Act in making an order for costs including a determination of who the “successful party” was, the amount claimed, and the amount recovered in a proceeding, the complexity of the proceeding and the importance of the issues and any offer to settle. Many of these concepts do not apply in the context of an application for the appointment of a guardian for property.
29The PGT is mandated, pursuant to s. 27(3.1) of the SDA, to seek an order to be appointed the temporary guardian of property, where as a result of conducting an investigation into an allegation that a person is incapable of managing their property, it is determined that the person is incapable. That section is meant to prevent “serious adverse effects” which is defined in s. 27(1) as: “Loss of a significant part of a person’s property, or a person’s failure to provide necessities of life for himself or herself or for dependants….”
30Ultimately, this matter was resolved by a consent order for the appointment of the PGT as guardian of the respondent’s property. The application was adjourned on at least four occasions from June 3, 2021 to February 28, 2022 to give the respondent time to seek an independent capacity assessment to challenge the determination made by Ms. Spezowka. In the end, that was not done, and the opinion of Ms. Spezowka, a certified capacity assessor, remains unchallenged, despite the position of the respondent that she does not agree with that assessment.
31There is no evidence before this court that the PGT took an interest in Ms. Friesen because she is a person with a high net worth. The evidence indicates that Ms. Friesen’s family refused to assist her by being appointed as guardians of her property, and following a thorough investigation, the PGT was required to bring the application.
32Counsel for the respondent raised the issue that the fees sought by the PGT were excessive in relation to the fees paid to her on a legal aid certificate. While it is true that the fees charged by the PGT and approved by the Attorney General exceed those payable on a legal aid certificate, the respondent has funds available to pay counsel and an order for payment of reasonable fees to respondent’s counsel could also be made by the court. This does not negate the provisions of s. 8 of the PGTA.
[33] As a result of having determined that the PGT is properly entitled to costs, the only issue to now be determined is the quantum of costs. The PGT is entitled to “reasonable fees.” The fee schedule relied upon must be approved by the Attorney General (s. 8(2) PGTA). In this case that hourly fee is set at $250 for the work performed by Dermot Moore, a lawyer of 32 years experience (at the relevant time) who spent 34.1 hours on this file, $150 for Anthony Robertazzi, a lawyer of one year experience who spent 56.5 hours, and $200, subsequently raised to $225 per hour for Ms. Jones, with ten years experience who spent a total of 12.2 hours time. Those rates have been unchanged since 2004.
34The full fees for the time spent is $21,130, however, the PGT has waived approximately 34% of that fee, and seeks fees in the amount of $13,775 exclusive of HST and disbursements. In this case, in addition to the legal fees, 68.25 hours were expended by an investigator at $100 per hour in the investigation into this matter prior to the application being made.
35The fundamental purpose of the application for the appointment of a guardian for property is to prevent a vulnerable person, who is incapable of managing his or her own property from unnecessarily depleting their property and thereby suffering “serious adverse effects.” The legislation recognizes that the PGT is entitled to be compensated, for their reasonable fees and expenses from the property of the individual.
36In my view, the quantum of the fees is not unreasonable. The only issue is whether the time spent by the investigator in this matter represents a reasonable expense. I was not provided with a breakdown of how the investigator spent her time, although it is apparent by the volumes of material filed in support of the application that a significant amount of time would have been expended.
CONCLUSION
37Accordingly, there will be an order that, pursuant to s. 8(3) of the PGTA, the applicant is entitled to deduct the following amount for fees and expenses from the money held on behalf of Ana Friesen:
Fees: $13,775
Disbursements: $ 4,962.50
HST: $ 2,435.88
Total: $21,173.38
Original signed by Justice Maria V. Carroccia
Maria V. Carroccia
Justice
Released: May 13, 2022
COURT FILE NO.: CV-20-29136
DATE: 20220513
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Public Guardian and Trustee
Applicant
– and –
Ana Friesen
Respondent
Ruling on costs
Carroccia J.
Released: May 13, 2022