Court File and Parties

COURT FILE NO.: CV-20-644620-0000 DATE: 2023-03-27 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KONTHEAR SAING, Applicant AND: SOKLY SAING, PHARY SAING and THE PUBLIC GUARDIAN AND TRUSTEE, Respondents

BEFORE: VERMETTE J.

COUNSEL: Peter Askew, for the Applicant Marc Cumbo, for the Respondent Sokly Saing Sarah Latimer, for the Respondent Phary Saing Jamie Chiang, for the Respondent The Public Guardian and Trustee

HEARD: In writing

Endorsement as to Costs

[1] On December 30, 2022, I released an endorsement (2022 ONSC 7341) ordering that the Public Guardian and Trustee (“PGT”) be appointed as Phary Saing’s guardian of property and as litigation guardian with respect to this application.

[2] The parties were not able to agree on costs and have delivered costs submissions.

Positions of the parties

a. Position of Konthear Saing

[3] Konthear Saing seeks her costs of the application and motion from Sokly Saing and Vothy Saing, jointly and severally, on a substantial indemnity basis in the amount of $71,523.27 ($49,358.60 on a partial indemnity basis). While Vothy Saing is not a party to the application, Konthear Saing submits that the court has inherent and statutory jurisdiction to award costs against non-parties.

[4] Konthear Saing submits that she was successful in securing the appointment of the PGT as Phary Saing’s guardian of property and litigation guardian, which she sought in the alternative to her own appointment.

[5] Konthear Saing argues that her efforts to protect and secure Phary Saing’s assets from the predatory conduct of Sokly Saing and Vothy Saing were vigorously opposed by them. She states that they responded to her application and motion by attacking her character with largely irrelevant and inflammatory allegations that have now been found by the court to be lacking in substance. She points out that Sokly Saing and Vothy Saing sought to have themselves, or each other, appointed as guardian of property and litigation guardian for Phary Saing, but their requests were dismissed by the court.

[6] Konthear Saing submits that the conduct of Sokly Saing and Vothy Saing was outrageous and warrants an award of substantial indemnity costs. She points out that the courts have held that a party may be entitled to substantial indemnity costs where a party makes an unproven allegation of fraud, bad faith or misconduct against another party or conducts itself improperly during the litigation. She notes that the court made a number of findings that were critical of Sokly Saing’s and Vothy Saing’s conduct in the litigation. She states that Sokly Saing and Vothy Saing forced her to incur significant costs unnecessarily by making various unfounded allegations against her and by improperly seeking relief, without application or motion.

[7] In addition, Konthear Saing seeks costs of her prior motion to compel Phary Saing to undergo a capacity assessment in the amount of $15,000, to be paid from Phary Saing’s assets. This request is based on paragraph 61 of the endorsement of Justice Akbarali dated June 14, 2021 (2021 ONSC 4287). Konthear Saing submits that the evidence obtained on the capacity assessment was central to the court’s findings on the within application and motion, and that it is therefore appropriate that she be paid costs in recognition of the financial burden she undertook in bringing that necessary motion.

[8] Konthear Saing argues that Phary Saing’s offer to settle dated April 25, 2022 for the within motion and application was incapable of acceptance because the PGT would not agree to its appointment. She also points out that by the time the offer was made, she had already incurred significant costs for which there was no provision in the offer.

b. Position of Sokly Saing

[9] Sokly Saing seeks costs on a partial indemnity basis in the amount of $19,682 as against Konthear Saing or, in the alternative, an order that the costs be assessed in the cause.

[10] According to Sokly Saing, the appropriateness of including Phary Saing as a party to the application has yet to be determined. He states that none of the allegations made by Konthear Saing have been proven and are matters to be decided in the main litigation. He argues that if Konthear Saing is not successful in the main litigation, this threshold issue will have been proven to have been unnecessary and both Sokly Saing and Phary Saing will have greater cause to claim costs against Konthear Saing for initiating the litigation and the threshold issue.

[11] Sokly Saing points out that he took no position on the issue of Phary Saing’s capacity and that he only became involved in order to prevent Konthear Saing from becoming the guardian of Phary Saing. He states that from the beginning he recognized that neither he nor Konthear Saing were appropriate guardians and he supported both Vothy Saing and the PGT as guardians for Phary Saing. [1]

[12] With respect to Phary Saing’s offer to settle, Sokly Saing states that he expressed his willingness to agree to the appointment of the PGT as the guardian for Phary Saing, but that he believed that counsel for the PGT and counsel for Konthear Saing would not agree.

[13] Sokly Saing points out that the court’s decision was within both the alternative relief sought by Sokly Saing and Konthear Saing. However, he submits that as long as Konthear Saing was going to force the issue to a decision, it was reasonable for Sokly Saing to maintain the appointment of the PGT in the alternative, especially considering the position maintained by the PGT that they ought to be the last resort where there is a family member willing to take on the role.

[14] Sokly Saing states that no findings have been made with respect to the ownership interest of any of the parties in this litigation. He submits that it was Konthear Saing who first sought to co-opt Phary Saing’s voice in support of her unproven ownership claims against Sokly Saing and initiated the proceedings which she may ultimately lose. He argues that it would be unjust for Sokly Saing to pay the costs for Konthear Saing’s unsuccessful claims and litigation.

c. Position of Phary Saing

[15] Phary Saing submits that it would be inappropriate for any of the other parties’ costs to be paid from her present or future funds. She further submits that she should be awarded costs on a partial indemnity basis in the amount of $24,600 to be paid equally by Konthear Saing and Sokly Saing, less a $5,000 credit to Sokly Saing who advanced monies for Phary Saing’s retainer, while the rest of her fees were billed to Legal Aid Ontario.

[16] Phary Saing points out that she did not initiate these proceedings or request the court’s involvement. She states that she is caught in the middle of a conflict between her siblings Konthear Saing and Sokly Saing regarding the legal and equitable ownership of the property in issue. She argues that she should not pay for her siblings’ inability or unwillingness to try to resolve their dispute before turning to the court or for the demonstrably poor documentation and confused legal arrangements between Konthear Saing and Sokly Saing that appear to necessitate the within proceedings.

[17] Phary Saing submits that she has taken a reasonable position throughout the proceeding and taken many steps that would have eliminated the need for this contested hearing. She refers to the fact that she served an offer to settle on April 25, 2022 which provided that the PGT would be appointed as her litigation guardian and her statutory guardian for property. She notes that none of the parties responded to the offer. Phary Saing argues that since the court’s decision provided for the same outcome as the offer, Rule 49.10(2) consequences should run from April 25, 2022. She states that the court’s decision was also within the relief sought in her factum and repeated in submissions by counsel during the hearing.

[18] Phary Saing argues that Konthear Saing and Sokly Saing have each pursued their respective appointments as her litigation guardian and guardian for property at the exclusion of the other and in the face of overwhelming evidence that they each stood in a conflict of interest and neither were appropriate. She states that at no point did either Konthear Saing or Sokly Saing withdraw their positions and support Phary Saing’s position to request the involvement of the PGT. Instead, according to Phary Saing, they let the dispute with each other overwhelm all proportionality on the motion with five application records, six cross-examinations, and no offers to settle.

d. Position of the PGT

[19] The PGT requests to be paid its fees in this matter in the amount of $500 plus HST for a total of $565. The PGT submits that it is entitled to this fee for reviewing both guardianship applications in this proceeding for a court-appointed guardian of property. The PGT does not seek additional costs in this proceeding.

Discussion

[20] In my view, except for the PGT, the parties’ costs submissions are all revisionist to some extent, and some more than others. The positions actually taken by the parties on the motion are summarized in paragraphs 35 to 38 of my endorsement dated December 30, 2022.

a. Costs of the motion to compel Phary Saing to undergo a capacity assessment

[21] This motion was heard by Justice Akbarali in June 2021. Justice Akbarali wrote the following with respect to the issue of costs at the end of her endorsement:

[59] With respect to the factors relevant to an award of costs, I note the following: a. Konthear succeeded in obtaining the orders she sought on the motion; b. The issues raised were very important, and impact Phary’s financial interests, as well as her dignity and autonomy. It was appropriate for counsel to treat these issues seriously and with sensitivity, as they did. c. The parties prepared thoughtful material, appropriate to the importance of the issues; d. No party took unreasonable positions on the motion; e. Konthear’s partial indemnity costs, all inclusive, amount to $15,443.27. Phary’s partial indemnity costs, all inclusive, amount to $20,056.35.

[60] Ultimately, at the hearing of the application, the court will be able to assess the importance of the capacity assessments I have ordered in determining the issues in the application. The court may be in a position to make findings about which of the siblings, if any, are truly acting in Phary’s best interest, and how her interests are best protected.

[61] As a result, I conclude that it is most just to reserve the determination of who should pay the costs of this motion, if anyone, to the application judge. However, I fix the costs of this motion, all inclusive, at $15,000 which, in my view, represents a fair and reasonable sum on a partial indemnity scale.

[22] Based on paragraph 60 of Justice Akbarali’s endorsement and my review of her entire decision, it is my view that she intended to reserve the issue of the costs of the motion before her to the judge who would finally determine all the issues in the application, including the issues related to the ownership of the property. My view is reinforced by the fact that Konthear Saing is the only party who made submissions with respect to the costs of the capacity assessment motion. Notably, Phary Saing’s costs submissions did not address the costs of the motion heard by Justice Akbarali.

[23] In the circumstances, I conclude that it would be inappropriate for me to determine who should pay the costs of the motion heard by Justice Akbarali (which she fixed at $15,000). As I believe she intended, I direct that the determination of this issue is reserved to the judge who will hear the balance of the application.

[24] I now turn to the costs of the motion and the part of the application that I heard.

b. Offer to settle of Phary Saing

[25] In my view, the offer made by Phary Saing did not qualify as an offer to settle under Rule 49 of the Rules of Civil Procedure because there is no evidence before me that, at the time the offer was made, the PGT had agreed to be appointed as Phary Saing’s litigation guardian and her statutory guardian for property. Therefore, the offer could not be accepted.

[26] I note the following: a. By the time the offer to settle was made, the parties’ affidavit evidence was in, and cross-examinations had taken place. It was clear that there were three family members of Phary Saing who were proposing to be appointed as her litigation guardian and guardian of property. b. In her costs outline dated June 13, 2022, Phary Saing recognized that the motion had been made more complex by “the PGT’s stated requirement that the court be satisfied there is no alternative to its appointment before it consents to being either Phary’s litigation guardian or guardian for property.” c. In light of the above, Phary Saing knew or should have known that her offer to settle could not be accepted.

[27] I also note that the appointment of the PGT was not Phary Saing’s primary position on the motion. Like all the other parties, she requested the appointment of the PGT in the alternative.

[28] Accordingly, I do not take Phary Saing’s offer to settle into consideration in determining costs.

c. Entitlement to costs

[29] The PGT is entitled to the payment of its fees. Konthear Saing and Sokly Saing should each be responsible to pay half of the fees sought by the PGT, i.e., $282.50 each.

[30] In my view, Phary Saing should not be awarded any costs. She was unsuccessful in attacking the capacity assessment and I did not accept her position with respect to the management of her property. Further, her primary position was that Vothy Saing should be appointed as her litigation guardian and, if necessary, as her guardian of property, but I held that Vothy Saing would not be an appropriate litigation guardian and/or guardian of property for Phary Saing. I also find that some of Phary Saing’s submissions on costs fail to acknowledge that the motion and the part of the application that I heard were to protect her interests, notably her potential interest in the property in issue.

[31] Since no party is seeking costs against Phary Saing on this motion, no costs are awarded against her.

[32] I am not prepared to order costs against Vothy Saing, a non-party. The statutory and inherent jurisdiction of this court to order costs against a non-party are not triggered in this case as the relevant tests are not met: see 1318847 Ontario Limited v. Laval Tool & Mould Ltd., 2017 ONCA 184 at paras. 59-79. Further, Vothy Saing was not given notice.

[33] This leaves the issue of whether Konthear Saing and Sokly Saing, the main parties to this application, should be ordered to pay costs.

[34] I disagree with Sokly Saing’s submission that the appropriateness of including Phary Saing as a party to the application has yet to be determined. While no determination has been made in relation to any ownership interest in the property in issue, the evidence before me shows that, at a minimum, Phary Saing is an interested party who could be affected by the orders sought.

[35] The issues of Phary Saing’s capacity, the appointment of a litigation guardian and the appointment of a guardian of property were issues that needed to be determined and it is Konthear Saing who took the necessary steps to bring them before the court. While I have found that Konthear Saing had a conflict of interest and, as a result, should not be appointed as Phary Saing’s litigation guardian and guardian of property, Konthear Saing has a documented history of providing care and assistance to Phary Saing prior to the litigation, contrary to Sokly Saing and Vothy Saing, and she sought an order appointing the PGT in the alternative.

[36] In contrast, Sokly Saing: a. took the position shortly after the beginning of the litigation that Phary Saing was competent to make litigation decisions without the need for a litigation guardian; b. took the position that it was appropriate for Phary Saing to be represented by the same lawyer as him; c. requested to be appointed as Phary Saing’s litigation guardian and guardian of property, even though his position in the litigation is that Phary Saing has no ownership in the property in issue. Sokly Saing’s conflict of interest is patent and, in my view, more significant than Konthear Saing’s conflict of interest; d. put forward Vothy Saing as a potential litigation guardian and guardian of property. Vothy Saing never brought her own application, she was not represented by a lawyer, and her Management Plan was almost identical to Sokly Saing’s Management Plan. Since she was not a party, Sokly Saing acted as a conduit for her evidence and her position, which I found concerning and problematic. e. only requested the appointment of the PGT in the second alternative, i.e., in the alternative to his own appointment and Vothy Saing’s appointment.

[37] In light of the foregoing, I find that Sokly Saing should be ordered to pay a portion of Konthear Saing’s costs. However, it is my view that Konthear Saing is not entitled to more than a portion of her costs because: (a) she was unsuccessful with respect to her primary position; and (b) I agree with Phary Saing’s submission that the way the parties litigated this motion “overwhelm[ed] all proportionality”.

d. Scale of costs

[38] As has been observed in many cases, costs on an elevated scale are exceptional and are reserved for those situations when a party has displayed reprehensible, scandalous or outrageous conduct: see Quickie Convenience Stores Corp. v. Parkland Fuel Corporation, 2021 ONCA 287 at para. 4. It is my view that the conduct of Sokly Saing in this case does not rise to the egregious level required to award costs on an elevated scale. While the parties have made serious allegations against each other, I have not made any determination or finding with respect to these allegations: see paragraphs 33-34 of my endorsement dated December 30, 2022. Therefore, I conclude that this is not an appropriate case for costs on an elevated scale.

Conclusion

[39] Taking the foregoing into account, as well as the factors set out in Rule 57.01(1) of the Rules of Civil Procedure and the reasonable expectations of the parties, I find that the fair and reasonable award of costs to be paid by Sokly Saing to Konthear Saing is on a partial indemnity basis in the all-inclusive amount of $15,000.00.

[40] In addition, Konthear Saing and Sokly Saing are to pay to the PGT costs in the amount of $282.50 each.

[41] The costs are to be paid within 30 days.

Vermette J.

Date: March 27, 2023

[1] This is inaccurate. The position taken by Sokly Saing is set out in paragraph 36 of my endorsement dated December 30, 2022.