Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Raymond Tanti, Applicant
AND:
Paul Tanti and Sharon Joseph, Respondents
BEFORE: Conlan J.
COUNSEL: William R. Gilmour, for the Applicant
Kathleen Kinch, for Paul Tanti
Joy Nwawe, for Sharon Joseph
Sarah Jones, for the Public Guardian and Trustee
ENDORSEMENT ON COSTS
I. The Hearing and The Judgment
1This Court heard a request by Sharon Joseph (“Sharon”) to set aside an Order made by my colleague, Mr. Justice Harris, on September 12, 2019 (the “Guardianship Order”).
2The Guardianship Order adjudged that Mr. Paul Tanti (“Paul”) is incapable of personal care and incapable of managing property, and Paul’s son, Raymond Tanti (“Raymond”), was appointed as the sole guardian of property for Paul and the sole guardian of the person of Paul.
3The hearing before this Court was participated in by Sharon and her counsel, Raymond and his counsel, and counsel for Paul. It took place over a number of days, entirely via the Zoom platform, and it consisted of both oral and written evidence.
4In its decision reported at Tanti v. Tanti, 2022 ONSC 4419, dated July 27, 2022, this Court set aside the Guardianship Order but stayed the setting aside for a period of ninety (90) calendar days.
5Written costs submissions were invited from the parties, and those have now been received and reviewed.
II. The Positions of The Parties on Costs
6Raymond, whose written submissions were filed first in time, seeks costs on a partial indemnity basis in the total amount of $35,270.13.
7Sharon, whose written submissions were filed next in time, “seeks substantial indemnity costs against Raymond Tanti personally as set out in the attached Costs Outline” (paragraph 35). Unfortunately, that attached Costs Outline shows no amount for substantial indemnity but rather sets out $53,002.65 (full indemnity) and $31,532.65 (partial indemnity). This Court can only assume that the quantum being sought by Sharon falls somewhere between those two amounts, though for some unknown reason the Costs Outline also asks for $30,000.00 in costs (page 2).
8Counsel for Paul “does not seek a specific costs outcome” (paragraph 1) but filed brief written submissions and a Costs Outline “for informational purposes and to assist the court” (paragraph 1), for which I am grateful. The said Costs Outline shows the following: $23,752.60 (full indemnity), $21,310.22 (substantial indemnity), and $14,226.70 (partial indemnity).
III. The General Law of Costs
9Any costs order should aim to produce a result that is fair, just, reasonable, and proportionate in all of the circumstances presented. The key objectives are to (i) partially indemnify the successful litigant, (ii) encourage settlement, and (iii) discourage bad or inappropriate conduct by a litigant.
10In exercising its discretion under section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, the Court should consider, among other things, the result in the proceeding, any offer to settle, and the various factors outlined in Rule 57.01(1) of the Rules of Civil Procedure.
11Although a successful litigant is presumed to be entitled to some costs, the Court retains the discretion to award no costs in favour of that litigant or to even order costs against that litigant – Rule 57.01(2).
IV. The Decision of This Court
12There shall be no order as to costs.
13Although Sharon was successful, there are good reasons for not awarding to her any costs, including the following:
i. she unreasonably prolonged and complicated the hearing by challenging the issue of Paul’s incapacity in the face of overwhelming evidence to the contrary of her position (the Court included this same observation at paragraph 30 of its reasons dated July 27, 2022);
ii. she, through her counsel, ignored the entire spirit and intent of the judgment, particularly paragraphs 56 and 57 of the reasons dated July 27, 2022, by immediately (the very next day after the reasons were released) writing a lengthy letter to the Regional Senior Justice (“RSJ”) dated July 28, 2022, in which letter she (a) asserted that no consent was forthcoming (how that could be determined within mere hours of the decision being released is puzzling to me), and (b) requested that the RSJ intervene to schedule a further hearing to determine the validity of the competing powers of attorney, and (c) then proceeded to suggest that it was unreasonable for this Court to have determined that any further hearing was necessary in that regard, and finally (d) expressed that she would not want to appear before this judge on the next step of the proceeding (if this costs decision is appealed, the letter of counsel for Sharon dated July 28th will speak for itself); and
iii. she, in her written costs submissions, again took issue with this Court’s determination that the question of the validity of the competing powers of attorney could not be decided at this time; see for example paragraph 23 of the submissions – “we know that Raymond arguments against POAs granted to Sharon by Paul Tanti were rejected at Court of Appeal and the Supreme court f Canada” (errors in the original), which submission is both irrelevant to costs and patently incorrect.
14Sharon is entitled to disagree with this Court’s decisions. Next time, however, it would be more prudent to take her complaints to Osgoode Hall rather than to relitigate matters under the guise of costs submissions and case management through the Office of the RSJ.
15There is no basis for an award of costs in favour of Raymond. He was unsuccessful in that the Guardianship Order was set aside (stayed or not), and his own evidence at the hearing made clear that the said Order was based on inaccurate information
16The most just result in all of the circumstances is no order as to costs.
17I remind all counsel to comply with the reasons dated July 27, 2022, including paragraph 56 therein. If item (iii) of paragraph 56 is necessary, then that court appearance shall be scheduled by contacting the trial coordinator’s office of the Superior Court of Justice in Brampton.
Conlan J.
Date: September 6, 2022