Court File and Parties

COURT FILE NO.: CV-22-00681290-00ES DATE: 20230525

ONTARIO SUPERIOR COURT OF JUSTICE (Estates List)

IN THE GUARDIANSHIP OF PERSON OF SHYAM MOHAMED ADAM

BETWEEN:

SHAZAD ADAM Applicant

AND:

SHYAM MOHAMED ADAM, BIBI HASENA HANUMAN and SELENA SHAZELA HASENA and THE OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE Respondents

BEFORE: Justice Sanfilippo

COUNSEL: Kas Marynick, for the Applicant Matthew Urback, Section 3 Counsel for Shyam Mohamed Adam Bibi Hasena Hanuman, Self-represented Respondent Selena Shazela Hasena, Self-represented Respondent

HEARD: April 14, 2023

Endorsement

[1] The Respondent, Shyam Mohamed Adam, is a 58-year-old whose capacity to manage his personal care was placed in dispute in this Application. The parties agreed that on April 28, 2022, Shyam [1] sustained a head injury. Over the next several months, Shyam was in and out of hospital and received various forms of treatment. At the time of hearing this Application, Shyam resided in an assisted living facility.

[2] This Application was brought by Shyam’s son, Shazad Adam. Shazad claimed that he should be appointed as Shyam’s Guardian of the Person, in place of Bibi Hasena Hanuman, whom Shazad referred to as Shyam’s “former common-law spouse” but who was shown to be Shyam’s spouse. Bibi was appointed as Attorney for Personal Care for Shyam in a Power of Attorney for Personal Care executed by Shyam on July 5, 2019 (the “2019 POAPC”). In the 2019 POAPC, Shyam and Bibi’s daughter, Selena Shazela Adam, was named as an alternate Attorney for Personal Care. Shazad challenges the validity of the 2019 POAPC. He submitted that Bibi has not acted in Shyam’s best interest and should be removed and replaced by Shazad as Shyam’s substitute decision maker for personal care.

[3] Bibi and Selena opposed the appointment of Shazad as Shyam’s Guardian of the Person, initially assisted by counsel but more recently as self-represented Respondents. Further to my Order of September 27, 2022, the Public Guardian and Trustee (“PGT”) arranged for legal counsel to be appointed for Shyam under section 3 of the Substitute Decisions Act, 1992, S.O. 1992, C. 30 (the “SDA”). This s. 3 Counsel filed Statements of Position on behalf of Shyam and appeared at the hearings to make submissions.

This Application

[4] Shazad brought this Application to replace the Respondents Bibi and Selena as substitute decision makers for Shyam. Specifically, Shazad sought the following relief:

(a) An Order granting leave for Shazad to bring this Application, pursuant to s. 68(3) of the SDA.

(b) A Declaration that Shyam is incapable of personal care, pursuant to s. 45 of the SDA.

(c) An Order removing Bibi and Selena from their status under the 2019 POAPC as Shyam’s Attorneys for Personal Care, on the basis of s. 68 of the SDA.

(d) An Order appointing Shazad as the Guardian of the person for Shyam, pursuant to s. 55 of the SDA.

(e) Costs of this Application.

[5] This Application has a lengthy procedural history.

Procedural History

[6] This Application was initiated on May 18, 2022. On May 31, 2022, Justice Kimmel issued an Order (the “May 2022 Order”) scheduling the hearing of this Application on August 25, 2022, and granting the Applicant leave to file an Amended Notice of Application. Justice Kimmel also ordered that the PGT be served. A timeline was established for the development of the Application for hearing. Pending the return of the Application, Justice Kimmel ordered that the Respondents, Bibi and Selena, immediately notify the Applicant’s lawyer upon becoming aware that any personal care decision needed to be made for Shyam, as follows:

THIS COURT ORDERS THAT, pending the return of this application and/or any further order of this court, the Respondents Bibi Hasena Hanuman and Selena Shazela Hasena shall, when making any personal care decision in connection with the Respondent Shyam Mohammed Adam:

(a) Notify the Applicant’s solicitor Kas Marynick via email to kas@nanda.ca immediately upon becoming aware that a personal care decision needs to be made.

(b) Consider any input that the applicant may provide in respect of the decision if time permits.

(c) Notify the Applicant’s solicitor via email once the decision has been made.

(d) Instruct all health care providers in writing only and deliver a copy of the instruction to the Applicant’s solicitor via email.

[7] On July 22, 2022, Justice Kimmel convened an urgent hearing requested by the Applicant, who reported that Shyam had been discharged from hospital and brought to the home of Bibi and Selena. The Applicant was not notified of this or contacted for his input in advance of this taking place, in alleged breach of the May 2022 Order. Bibi and Selena’s counsel was not able to appear due to illness, with the result that Justice Kimmel provided Bibi and Selena time to deliver responding materials for the hearing of the Applicant’s urgent motion, which was adjourned to August 5, 2022 (the “July 2022 Order”).

[8] On August 5, 2022, the parties reported to Justice Dietrich that they had entered into Minutes of Settlement, which included consent to a Court Order that Shyam is incapable of personal care within the meaning of s. 45 of the SDA. The parties asked that Justice Dietrich issue a guardianship Order appointing Shazad as Shyam’s Guardian of the Person in place of Bibi and Selena. Justice Dietrich declined to issue the consent Order on the basis that the record filed by the Applicant did not contain reliable, independent, and current evidence of Shyam’s incapacity. Justice Dietrich adjourned the Application to provide the Applicant with an opportunity to address the deficiencies in the Application, particularly on the issue of Shyam’s capacity (the “August 5, 2022 Order”).

[9] On August 25, 2022, this Application returned before Justice Conway. Bibi advised that she was no longer represented by counsel and submitted that she was no longer prepared to adhere to the Minutes of Settlement. To provide the Applicant with an opportunity to obtain a capacity assessment of Shyam, which was by then in progress by Ms. Ruby Shah, a certified capacity assessor under the SDA, the Application was adjourned to September 23, 2022 (the “August 25, 2022 Order”).

[10] On September 21, 2022, Justice Dietrich ordered that the William Osler Health System disclose personal medical notes and records regarding Shyam to Ms. Shah for the purpose of her ongoing capacity assessment (the “September 21, 2022 Order”).

[11] By Endorsement issued September 27, 2022, I ordered that the PGT arrange for legal representation to be provided to Shyam, pursuant to s. 3 of the SDA, and that Shyam shall be deemed to have capacity to retain and instruct counsel. This Application was adjourned to October 21, 2022 for the purpose of retaining s. 3 Counsel. When this step was not completed by October 21, 2022, I adjourned the Application to January 3, 2023, and then to February 10, 2023, to provide ample time for the s. 3 Counsel to be retained, to meet with Shyam and take instructions, and to participate in the hearing.

[12] On February 10, 2023, the Respondents asked to admit into evidence a videotape that was said to contain statements by Shyam. The videotape was provided to the Applicant and to s. 3 Counsel on the eve of the hearing. The Respondents’ late delivery of the videotape to the lawyer for Shyam meant that s. 3 Counsel did not have an opportunity to speak with Shyam about its contents. I thereby adjourned the hearing so that s. 3 Counsel could review the content of the videotape with Shyam and file any further Statement of Position that he considers advisable. A timetable was implemented for the hearing of this Application on March 20, 2023, with the implementation of a timetable for the parties to deliver supplementary materials.

[13] At the hearing of this Application on March 20, 2023, which was continued to March 21, 2023, an evidentiary issue arose regarding the house in which the Applicant proposed to care for Shyam upon his release from the long-term care facility in which he was residing. The materials filed by the Applicant, including his Guardianship Plan, stated that Shazad proposed to care for Shyam in the house that Shyam resided in with his son before his injury: 48 Dorward Drive, Etobicoke, Ontario (the “Dorward Street Property”). The Applicant confirmed that Shyam is a co-owner of the Dorward Street Property in equal share with his son. However, there was evidence that Shazad had moved to 76 Patrician Court, Bradford, Ontario (the “Bradford Property”).

[14] As this factual development was material to the determination of the Application, I adjourned the Application to April 14, 2023 to provide the parties with an opportunity to tender evidence regarding the location of the residence in which Shazad proposed to care for Shyam. This also provided s. 3 Counsel with an opportunity to take instructions from Shyam regarding his preference for the location of his residence and care.

Leave for Shazad to Bring this Application

[15] Section 68(1) of the SDA provides that “if an incapable person has a guardian of the person or an attorney under a power of attorney for personal care, the court may give directions on any question arising in the guardianship or under the power of attorney.” Section 68(2) provides that a request for directions shall be made by Application when, like here, no Guardian of the Person has been appointed under section 55 or 62 of the SDA.

[16] Section 68(3) provides that an Application under s. 68 may be brought by the incapable person’s Guardian of the Person, Attorney for Personal Care or for Property, the PGT, a dependant, “or by any other person with leave of the Court”. Here, Shazad seeks leave to bring this Application.

[17] I am satisfied that Shazad be provided with leave to bring this Application. Shazad is Shyam’s son. Prior to Shyam’s hospitalization, Shazad and Shyam resided together in the Dorward Street Property, which they co-own. In the Statements of Position filed by s. 3 Counsel on behalf of Shyam, there has, throughout, been a consistent and clear expression by Shyam that he wants Shazad involved in his personal care decisions.

[18] An Order shall issue, under ss. 68(3) of the SDA, granting leave to the Applicant to bring this Application, under ss. 45 and 55 of the SDA.

Determination of Incapacity

[19] Section 45 of the SDA provides:

A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[20] The Applicant tendered a capacity assessment report dated September 29, 2022, prepared by Ms. Shah, who provided the opinion that Shyam is incapable as to all the categories set out in s. 45. Ms. Shah explained that Shyam was diagnosed with a traumatic intracerebral hemorrhage upon admission to the Etobicoke General Hospital on April 28, 2022, where he was cared for in the intensive care unit for two weeks. Ms. Shah reviewed the records obtained from the hospital, which showed that Shyam’s condition necessitated admission to a long-term care facility upon discharge from hospital.

[21] Shyam’s s. 3 Counsel confirmed that Shyam has been “in and out” of the hospital and undergoing various forms of treatment since sustaining a traumatic brain injury in the incident of April 28, 2022. He confirmed, as well, that Shyam now resides in an assisted living facility where he receives assistance in attending to his personal care needs. Bibi and Selena did not oppose Shazad’s submission that Shyam is incapable to manage his personal care. Section 3 Counsel, in his Supplementary Further Statement of Position dated March 3, 2023, stated that Shyam acknowledges that he requires assistance with all his personal care needs, including health care, nutrition, clothing, shelter, hygiene and safety.

[22] The evidence filed supported Ms. Shah’s conclusion, reached after her detailed capacity assessment and examination of Shyam, that Shyam is not capable to manage his personal care.

[23] Based on my review of the materials filed and on the submissions of the parties, I am satisfied that a declaration shall issue that the Respondent, Shyam Mohamed Adam, is incapable of personal care within the meaning of s. 45 of the SDA.

The 2019 Power of Attorney for Personal Care

[24] The Applicant challenges the validity of the 2019 POAPC and, if it is valid, submits that there are grounds for an Order that the 2019 POAPC be set aside in Shyam’s best interests. The Applicant does not challenge the Power of Attorney for Property that Shyam executed at the same time as the 2019 POAPC, wherein Shyam appointed Bibi as his Attorney for Property, again with Selena as the substitute attorney.

[25] In addition, the Applicant submitted that Bibi and Selena should be removed as Attorneys for Personal Care of Shyam. The Applicant relied heavily on the case law that has held that a person’s selection of an attorney should only be disturbed where there is compelling evidence of misconduct or neglect on the part of the attorney. [2] On the record in this Application, I find that the Applicant has shown that Bibi has been neglectful in the care of Shyam, and that Bibi’s breach of a Court Order constitutes misconduct in her capacity as Attorney for Personal Care. I will explain these findings.

[26] The neurosurgery consultation report of Dr. Hubert Lee dated April 29, 2022 records that Shyam “was known to be a heavy alcohol user (greater than 10 drinks/day)”. Shazad deposed, in his affidavit sworn May 11, 2022, that Shyam is an alcoholic “who consumes a 750 ml bottle of Absolut vodka every two or three days” and has been doing so for about six years. Shyam’s excessive consumption of alcohol prompted Shazad to curtail Shyam’s driving, including through removal of his insurance, and to close a joint account held by Shazad jointly with Shyam to restrict Shyam’s access to funds for use in the purchase of excessive amounts of alcohol.

[27] Shazad deposed that Bibi has enabled Shyam’s alcohol consumption by supplying him with alcohol. In support of this evidence, Shazad produced bank records from a joint account held by Shyam with Bibi that showed daily purchases of alcohol during the period represented by the records. Shazad tendered, as well, affidavit evidence of neighbours and friends who deposed that they witnessed Bibi supply Shyam with bottles of alcohol. Brian Malcolm, a neighbour who has known Shazad and Shyam, deposed that he observed Bibi, “on more than one occasion”, arrive after Shazad left the house with bags that, by reason of their size and weight, appeared to contain bottles of alcohol. Millicent Jarrett, a neighbour and friend of Shazad and Shyam, deposed that she observed Bibi supply Shyam with bottles of vodka.

[28] In her affidavit sworn July 27, 2022, Bibi denied that Shyam had a problem with alcohol consumption, stating that he would “drink occasionally”. Bibi denied that she supplied Shyam with alcohol and was critical of Shazad because “he did not want his dad to drink at all and would use the threat to take him to [Alcoholics Anonymous] meetings as a form of punishment for him.”

[29] In cross-examination, Bibi conceded that Shyam drank excessively and that the term “alcoholic” is a fair description of Shyam’s condition. Bibi testified that she denied in her affidavit evidence that Shyam had an alcohol addiction because she did not consider that someone who consumed four drinks of alcohol each day, which was her admitted observation of Shyam, raised any concern for his health.

[30] The Applicant established that Bibi neglected to appreciate the impact of Shyam’s excessive consumption of alcohol on his health. This resulted in Bibi failing to take any steps to dissuade Shyam from excessive alcohol consumption and to encourage him to seek treatment. Rather, she viewed Shazad’s plan for Shyam to attend community support group meetings to obtain help with his addiction as “punishment”. Based on the independent evidence of Mr. Malcolm and Ms. Jarrett, which was not subject to cross-examination, and which corroborates Shazad’s evidence, I find that the Applicant has established that Bibi failed to recognize the severity of Shyam’s alcohol consumption problem. Bibi’s denial of Shyam’s health issue is not in his best interests. To act as Shyam’s Attorney for Personal Care, Bibi must be able to acknowledge a health issue that Shyam is experiencing.

[31] Further, Bibi breached the May 2022 Order. Justice Kimmel implemented a process for Bibi to notify the Applicant’s lawyer by email if any personal care decision needed to be made in Shyam’s care and ordered that this notification take place before any decision was made. On July 20, 2022, Bibi arranged with the Hospital for a hospital bed to be moved to her house, for Shyam to be discharged from Hospital and for an ambulance to bring Shyam to her house. Bibi did not report any of these developments to either the lawyer for the Applicant, as required by the May 2022 Order, or even her own lawyer, who later withdrew from representation of Bibi and Selena.

[32] Bibi deposed that these arrangements were initiated by the Hospital, and that she did not realize that there was any issue until police officers attended at her home to investigate Shyam’s whereabouts, upon a complaint by Shazad. Bibi conceded in cross-examination that she made a mistake in failing to comply with the May 2022 Order.

[33] I find that this breach of the May 2022 Order by Bibi is misconduct pertaining to the very issue involved in this Application: the personal care of Shyam. Bibi’s failure to comply with a Court Order pertaining to Shyam’s personal care established that she is not an appropriate Attorney for Personal Care for Shyam.

[34] Additionally, the Statements of Position filed by the s. 3 Counsel support removing Bibi as Attorney for Personal Care for Shyam. The s. 3 Counsel reported that Shyam does not know whether he has a Power of Attorney, or who is his Attorney for Personal Care. Shyam prefers that Shazad be his substitute decision maker, with input and continued contact from Bibi and Selena.

[35] Courts have held that a donor’s choice of attorney can be set aside where the attorney no longer serves the donor’s best interests. [3] Here, through Bibi’s neglect and misconduct, and by reason of Shyam’s preference as expressed by his s. 3 Counsel, I have concluded that it is not in Shyam’s best interests that Bibi and Selena continue as his Attorneys for Personal Care, and they shall therefore be removed from this capacity. Considering these findings, it is not necessary to determine whether the 2019 POAPC is valid and effective.

[36] For these reasons, an order shall issue removing the Respondents, Bibi Hasena Hanuman and Selena Shazela Hasena as Attorneys for Personal Care of Shyam.

Appointment of Guardian of the Person

[37] Shazad seeks an order to be appointed as Shyam’s Guardian of the Person under s. 55(1) of the SDA: “The court may, on any person’s application, appoint a guardian of the person for a person who is incapable of personal care and, as a result, needs decisions to be made on his or her behalf by a person who is authorized to do so.” To assess Shazad’s claim, I have taken into consideration Shyam’s family history.

[38] Shyam was born on September 30, 1964. His son, Shazad, was born on March 10, 1986 in Guyana. Shazad immigrated to Canada in 2000, at 14 years of age, arranged by Shyam who had immigrated to Canada earlier. Shazad has lived with Shyam continuously since he arrived in Canada some 23 years ago. For the past 12 years, Shyam and Shazad have co-habited at the Dorward Street Property, which they own jointly.

[39] Bibi deposed that she and Shyam engaged in a religious marriage ceremony in Ontario on July 14, 2003, and then cohabited until August 31, 2019, at which time they were married in an Ontario civil ceremony. Bibi and Shyam are the parents of Selena, born in 2004.

[40] The parties agreed that Bibi and Selena lived with Shyam and Shazad from 2003 to 2017. In the period from the purchase of the Dorward Street Property in 2010 until 2017, they all co-habited at the Dorward Street Property. Bibi and Selena moved to a rental apartment in Etobicoke, Ontario on November 1, 2017, together with Bibi’s father. Shazad deposed, and Bibi did not deny, that Bibi and Selena have not resided with Shyam at his home for the past six years.

[41] I accept Shazad’s evidence, which was not challenged by cross-examination, that he has accompanied Shyam to medical appointments, and that he has routinely and regularly visited his father and attended to his support and care since the time of his injury on April 28, 2022. I find that Shazad has recognized, and is concerned about his father’s alcohol addiction, and is committed to assisting Shyam in recovery.

[42] Shazad deposed that he and his spouse purchased the Bradford Property in October 2022 and leased the Dorward Street Property. Shazad deposed that the Bradford Property is suitable for his father in that the house has four bedrooms, allowing for Shyam to have his own bedroom on the main floor. The Bradford Property is on a quiet street and has a backyard. Shyam deposed that the Bradford Property is near a medical clinic and hospital, and close to a Seniors Centre that offers programs and activities for older adults. Shazad deposed that the Bradford Property is close to “more than enough services to meet all of my father’s medical and spiritual needs.”

[43] Shazad has consented to act as Shyam’s Guardian of the Person, in accordance with s. 70(2)(a) of the SDA.

[44] The s. 3 Counsel stated, in his Statement of Position dated November 25, 2022, that should there be a finding that Shyam is not capable, and should the POAPC not be valid, Shyam’s preference is for Shazad to be his substitute decision maker. In his Supplementary Further Statement of Position dated March 3, 2023, s. 3 Counsel conveyed Shyam’s statement that Shazad has been very good to him, that he trusts Shazad’s judgment and that Shazad should “take care” of him. Shyam expressed that it “would be nice” if Shazad worked together with Bibi. In his Fourth Statement of Position, s. 3 Counsel stated that Shyam is agreeable to moving to the Bradford Property with Shazad and recognizes that this means that he will not be living with Bibi and Selena. Shyam stated that he wants to maintain a strong relationship with both his spouse and daughter but is excited to move into the Bradford Property with his son.

[45] Having considered the evidence, and having taken into consideration the expression of Shyam’s preferences as conveyed by s. 3 Counsel, I accept that the care and accommodation proposed by Shazad is in Shyam’s best interest. I have determined, under s. 55(1) of the SDA, that Shazad is an appropriate substitute decision maker for Shazad’s personal care and that Shazad’s appointment as Guardian of the Person shall be for one year from the date of this Order, subject to further Court Order. Shyam’s condition and capacity have improved over the time that he has been conferring with and instructing s. 3 Counsel, and his condition is expected to continue to improve over time, with appropriate care. A time-limited guardianship will allow for a review of Shyam’s capacity and his ongoing needs.

[46] Subject to the implementation of an appropriate Guardianship Plan, I am satisfied, on the evidence filed, that an Order shall issue on the following terms:

(a) Shazad shall be and is hereby appointed as the Guardian of the Person for Shyam, for the purpose of making decisions, in Shyam’s best interests, about any or all of Shyam’s personal care, including health care, nutrition, shelter, clothing, hygiene and safety.

(b) This appointment is time-limited to one year from the date of this Order, subject to further review and further Order of this Court.

(c) Shazad may exercise custodial power over Shyam, determine his living arrangements and provide for his shelter and safety.

(d) Shazad shall have access to personal information, including health information and records to which Shyam would have access if capable, and may consent to the release of that information to another person, except for the purpose of litigation as it relates to the Guardian of the Person.

Guardianship Plan

[47] Shazad filed a Proposed Guardianship Plan, [4] in Form 3 under the SDA, which I have reviewed. I find that the Proposed Guardianship Plan is appropriate, except for the following:

(a) In Section I, “Identifying Information”, the address for residence for Shyam must be the residence where Shazad intends that Shyam will reside: 76 Patrician Court, Bradford.

(b) In Section III, the category entitled “Health Care, Nutrition and Hygiene” must be revised to detail the medical clinics and hospitals in proximity to Shyam at the Bradford Property.

(c) In Section III, the category entitled “Shared Living Arrangements and Safety” must be revised to provide that Shyam will reside at the Bradford Property in shared living arrangements with Shazad and his family.

(d) In Section III, the category entitled “Recreational, Social and Cultural Activities” must be revised to provide detail of the recreational and community cultural activities that will be made available to Shyam at the Bradford Property, including those set out in paragraphs 11-13 of Shazad’s affidavit of March 24, 2023.

(e) In Section IV, “Additional Information”, section (d), the Guardianship Plan shall be revised to include that Shazad, as Guardian of the Person, recognizes a duty to consult from time to time with family members and friends of Shyam, including Bibi and Selena, who are in regular personal contact with him, in accordance with ss. 32(5) and 66(7) of the SDA.

(f) In Section IV, “Additional Information”, section (e), the Guardianship Plan shall be revised to include that Shazad, as Guardian of the Person, recognizes a duty to seek to foster regular personal contact between Shyam and his supportive family member and friends, including Bibi and Selena, in accordance with ss. 32(4) and 66(6) of the SDA.

(g) The 2019 POAPC shall be removed from attachment to the Guardianship Plan, as the appointment of Shazad as Guardian of the Person terminates the 2019 POAPC, in accordance with s. 53(1)(b) of the SDA.

[48] I have noted that these revisions are consistent with the comments made by the PGT in their letter of March 27, 2013, issued upon review of the Proposed Guardianship Plan.

[49] Upon the filing of a Guardianship Plan that meets the requirements set out, above, an Order shall issue in the following terms:

(a) The Guardianship Plan, as approved, shall be attached as Schedule “A” to the Order, and the Guardian of the Person shall act in the accordance with the approved Guardianship Plan, and in accordance with the SDA, with amendments to the Guardianship Plan from time to time that the PGT has an opportunity to review and which this Court allows.

(b) Shazad, as Guardian of the Person, shall: a. Take input regarding the care of Shyam from Bibi and Selena. b. Consult from time to time with Bibi and Selena in respect of Shyam’s personal care needs. c. Foster regular contact between Shyam and Bibi and Selena.

(c) Shazad shall serve and file an Amended Guardianship Plan with the Office of the PGT, pursuant to s. 66(15) of the SDA, in the event of any material change in circumstances and, in any event, upon review of this guardianship within one year of the date of this Order.

[50] The PGT, the s. 3 Counsel and Shazad all seek an order for costs of this Application. I heard cost submissions at the conclusion of the hearing and have reviewed the Bills of Costs filed by the s. 3 Counsel and by Shazad. I will address these claims for costs in order.

Costs – The Public Guardian and Trustee

[51] In accordance with s. 8 of the Public Guardian and Trustee Act, R.S.O. 1990, c. P.51, the PGT “may charge fees for anything done by the [PGT] under this or any other Act.” The PGT sought fees in the amount of $250.00, plus HST, for the review of this Application. No party opposed the fees sought by the PGT.

[52] An Order shall issue that the PGT’s fee for reviewing this Application, fixed in the amount of $250.00, plus HST of $32.50, shall be paid forthwith to the PGT from the property of Shyam Mohamed Adam.

Costs – s. 3 Counsel

[53] Section 3 Counsel sought full recovery of his fees from Shyam. Section 3 Counsel submitted a Bill of Costs that set out full indemnity fees in the amount of $12,600.00, plus HST of $1,638.00, for a total of $14,238.00.

[54] Section 3 Counsel relied on the holding by Justice A.J. Goodman in Gadula v Leroux, 2016 ONSC 6990, at para. 27, that “in order that lawyers willingly accept and discharge their obligations under a s. 3 appointment, it is good public policy to permit s. 3 counsel to recover their full costs, as they generally have no other recourse for such reimbursement.” I agree with this approach in the circumstances of this case, subject to ensuring that the amount of costs being sought are fair and reasonable.

[55] Here, the s. 3 Counsel provided valuable information to the Court and to the parties, through four Statements of Position delivered over the time that this Application was pending, [5] that explained Shyam’s wishes, beliefs, and preferences. These updated and to some extent emerging positions were necessitated by the evolving evidence presented by the parties, and changes in Shyam’s circumstances.

[56] The only recourse for payment of the costs of the s. 3 Counsel apart from his client, Shyam, is from the unsuccessful Respondents, Bibi and Selena, whether on a full indemnity basis or a partial indemnity basis. In the exercise of my discretion, I decline to award costs of the s. 3 Counsel against Bibi and Selena because I find that the s. 3 Counsel would have been required in this Application regardless of the responding positions taken by Bibi and Selena. The factual matrix of the Application was complex and deficiencies in the record contributed to the necessity to appoint s. 3 Counsel. Justice Dietrich ruled on August 5, 2022 that a guardianship order could not be granted even on the consent of the parties because of deficiencies in the evidentiary record.

[57] I am satisfied that, in this case, s. 3 Counsel shall receive an award of their full costs based on their work on behalf of Shyam. Having reviewed the Bill of Costs filed by the s. 3 Counsel, I find that the hourly rate ($375.00) is reasonable, as are the number of hours. The cost award shall be payable by Shyam, or on his behalf from his property, which includes an interest in the Dorward Street Property and the payments generated by its leasing.

[58] An order shall issue that the s. 3 Counsel’s full costs of this Application, fixed in the amount of $14,238.00, all inclusive, shall be paid forthwith by Shyam, or on behalf of Shyam from his property.

Costs – Shazad Adam

[59] The Applicant seeks costs on a full indemnity basis payable by Bibi and Selena. The Applicant filed a Cost Outline in support of his claim for costs on a full indemnity basis totaling $24,566.00, all inclusive of fees, disbursements, and applicable taxes, or $11,468.65 on a partial indemnity basis.

[60] The Applicant submitted that that this Application was settled by August 5, 2022, as set out in the August 5, 2022 Order. The Applicant contended that when Bibi withdrew from the settlement, as noted in the August 25, 2022 Order, the costs of this Application went from “manageable to unnecessary”. The Applicant submitted that further costs were expended unnecessarily by Bibi’s breach of the May 2022 Order. The Applicant stated that this conduct warranted a cost award on a full indemnity basis payable by Bibi and Selena.

[61] The Applicant made clear that he did not seek any costs payable by Shyam.

[62] Bibi and Selena responded that they do not have the assets necessary to pay the costs sought by the Applicant. These Respondents did not file any evidence of financial impecuniosity. Apart from Bibi’s testimony in cross-examination that she receives payments from the Ontario Disability Support Program, [6] there was no evidence regarding Bibi’s prospects or other resources available to pay an award of costs.

[63] Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that the “costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court.” Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sets out the factors to be considered in exercising this discretion. The costs rules are designed to foster four purposes: (a) to partially indemnify successful litigations for the cost of litigation; (b) to encourage settlement; (c) to discourage and sanction inappropriate conduct by litigants; and (d) to ensure that cases are dealt with justly. [7]

[64] In my view, the Applicant was successful in this Application and is thereby entitled to an award of costs. Bibi’s unsuccessful response to this Application, and her withdrawal from the settlement, caused this proceeding to be lengthy and costly and thereby caused the Applicant to incur costs for which Bibi should, in part, be responsible. I have considered Bibi’s submissions regarding her financial circumstances, which was her only submission in opposition to a cost award, but there is insufficient basis to find that this is “one of those rare cases where the inability of a person to pay costs should be a factor in deciding whether an award of costs should be made.” [8] I see no reason to deviate from the long-standing general rule that costs follow the event.

[65] However, I do not accept that the Applicant should receive an award of costs on a full indemnity basis against Bibi and Selena as the requirements for such an award of costs are absent. I am satisfied that the Applicant has established the basis for an award of costs on a partial indemnity basis against Bibi. I decline to award costs against Selena because while she appeared to support her mother, she had little role in this Application and her conduct did not cause costs to be incurred unnecessarily.

[66] In consideration of the amount of costs to fix as payable by Bibi to the Applicant, I apply the overriding principles of reasonableness, fairness, and proportionality rather than a purely arithmetic or mechanical computation of the lawyers’ hourly rates and time spent. [9] Here, I have taken into consideration that while Bibi caused the costs incurred after she withdrew from the settlement in August 2022, a portion of the Applicant’s partial indemnity costs of $11,468.65 were incurred prior to that date. I also take into consideration the costs that Bibi could reasonably expect to pay in a guardianship Application (Rule 57.01(1)(0.b)), the importance of the issue (Rule 57.01(1)(d)) and the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding (Rule 57.01(1)(e)). These considerations would, in my view, reduce the amount of costs to be awarded to the Applicant because Bibi did not expect to face a cost exposure of the magnitude sought by the Applicant, the guardianship issue was important, and certain of the adjournments were provided, and the resultant costs were incurred, to enable the Applicant to file further material.

[67] Considering all the factors set out in Rule 57.01, and applicable case law, and in the exercise of my discretion under s. 131 of the Courts of Justice Act, I conclude that it is fair, reasonable and proportionate to fix the Applicant’s costs of this Application, on a partial indemnity basis, payable within 30 days by Bibi Hasena Hanuman, in the amount of $5,000.00, all inclusive of legal fees, disbursements and applicable taxes.

[68] Had the Applicant sought costs from the Respondent, Shyam, I would have considered a cost award in favour of the Applicant against Shyam for all or part of the Applicant’s costs above those ordered to be paid by Bibi, on the basis that this guardianship Application was brought for Shyam’s benefit. It is not necessary to consider this as the Applicant made clear that he does not seek any costs from Shyam.

Disposition

[69] An Order shall issue in accordance with the disposition set out in this Endorsement and, specifically, in paragraphs 18, 23, 36, 46(a) to (d), 47(a) to (g), 49(a) to (c), 52, 58 and 67 of this Endorsement. The Order shall provide that the Applicant shall serve the Order on the PGT. The Applicant may prepare a form of draft Order, following the form of the draft Order filed on CaseLines, [10] revised to reflect the disposition set out in this Endorsement.

[70] The Applicant may deliver a further form of draft Order, after review with the Respondents as to form and content, on the CaseLines Bundle for this Motion (Bundle 011) and may provide versions of the draft Order in PDF and Word format to my judicial assistant and to the Estates Trial Coordinator to be forwarded to me, for consideration.

Justice Sanfilippo Date: May 25, 2023

[1] For brevity and clarity in following this Endorsement, I will respectfully refer to the parties by their first names, in the same manner that the parties have in the materials that they have filed on this Application.

[2] Valente v. Valente, 2014 ONSC 2438, at para. 31, citing Glen v. Brennan, at paras. 8-10; Teffer v. Schaefers (2008), 93 O.R. (3d) 447 (S.C.), at paras. 21-22.

[3] Cates v. Forbes, [2003] O.J. No. 2154 (Ont. S.C.), at para. 7; Glen, at para. 8.

[4] CaseLines Bundle for hearing of March 20, 2023 (011), current pp. A237-A245.

[5] Statement of Position dated November 25, 2022; Further Statement of Position dated February 1, 2023; Supplementary Further Statement of Position dated March 3, 2023; Fourth Statement of Position dated April 6, 2023.

[6] Supplementary Application Record, CaseLines Bundle 011, Doc. A:58, current p. A190.

[7] Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905; Bridge v. Laurence, 2017 ONSC 1655, paras. 9-10; Rule 1.04.

[8] Kesete v. Gaspar, 2022 ONSC 6860, at paras. 5-11. Also, Nassab v. ErinoakKids, 2017 ONSC 2740 (Div. Ct.); Baines v. Hehar, 2013 ONSC 849.

[9] Barbour v. Bailey, 2016 ONCA 334, [2016] CarswellOnt 6794, at para. 9; Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519, at para. 12, leave to appeal to SCC refused, 38792 (16 January 2020); Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para. 38; Zesta Engineering Ltd. v. Cloutier, at para. 4.

[10] Draft Order, CaseLines Bundle 011, Doc. A:62, current pp. A227-A231.