Court File and Parties

Court File No.: CV-22-00691245-00ES Date: 2024-10-02 Ontario Superior Court of Justice

In the Matter of the Property of Doris Kathleen Bogue

Re: Colin Bogue in his capacity as attorney for property for Doris Kathleen Bogue, Applicant And: Glenn Bogue in his capacity as attorney for property for Doris Kathleen Bogue and personally, Respondent

Before: Justice A.A. Sanfilippo

Counsel: Liza Saad, for the Applicant Glenn Bogue, Self-represented Respondent

Heard: In Writing

Costs Endorsement

[1] The Applicant, Colin Bogue, brought this Application to remove his brother, the Respondent Glenn Bogue also known as Spirit Warrior, as co-attorney for the management of the property of their 97-year-old mother, Doris Kathleen Bogue pursuant to a Continuing Power of Attorney for the Management of Property that Ms. Bogue executed on July 23, 2013 (the “POAP”). By Endorsement issued June 17, 2024 (the “June 2024 Endorsement”), I granted two orders: (a) the Respondent is removed as attorney for property of Ms. Bogue under the POAP; and (b) the Applicant shall keep records and shall commence, upon the conclusion of the attorneyship of Ms. Bogue or in any event within two years of the date of this Order, an Application to pass his accounts of the attorneyship.

[2] I directed a process for the parties to deliver written submissions on the issue of costs of this Application, if the parties could not agree on the issue of costs. The parties did not resolve the issue of costs and delivered written submissions in accordance with the timetable established by the June 2024 Endorsement.

A. The Parties’ Positions on the Issue of Costs

[3] The Applicant claims costs against the Respondent personally, on a substantial indemnity basis in the amount of $39,137.81, all inclusive of fees, disbursements and applicable taxes. Alternatively, the Applicant seeks costs on a partial indemnity basis in the amount of $26,704.99, all inclusive. The Applicant submitted that he is entitled to an award of costs based on success because the Applicant successfully obtained an order removing the Respondent as co-attorney for property for Ms. Bogue. The Applicant acknowledged that, absent operation of r. 49.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, costs on a substantial indemnity basis are rare, but submitted that this is an exceptional case that warrants an elevated award of costs because the Respondent brought unnecessary proceedings, abused his power as co-attorney for property to further his own interests, and neglected his duties to Ms. Bogue.

[4] The Respondent denied that the Applicant should receive any cost award on his submission that success was divided because the Applicant has been ordered to commence an Application to Pass Accounts. The Respondent submitted that the costs of this Application should be reserved to the Application to Pass Accounts. Regarding the amount of the Applicant’s costs, the Respondent submitted the Applicant’s Bill of Costs claims costs that are excessive and were already sought in the application that he brought against Colin Bogue in court file number CV-22-00687532-00ES (the “Glenn Bogue Application”) which was dismissed by Gilmore J. on March 13, 2023.[^1]

B. Analysis

[5] The principles for the determination of costs in estates litigation apply equally to capacity litigation.[^2] The issue of costs in estates litigation is like any form of civil litigation in that it is governed by s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and r. 57, unless public policy considerations require that the costs be paid out of the estate.[^3] In proceedings under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”), the public policy considerations that must be balanced are to give effect to the intentions of the grantor of the POAP while ensuring that those who are appointed as attorneys of property administer the grantor’s estate properly.[^4]

[6] The exercise of the court’s discretion in costs claims in capacity litigation should reflect the basic purpose of the guardianship or attorneyship of property, which is to “protect the property of the person found to be incapable and to ensure that such property is managed wisely so that it provides a stream of income to support the needs of the incapable person”.[^5] The incapable grantor of a power of attorney should not be required to bear the unnecessary legal costs that result from an attorney failing to perform their duties, but rather only the cost of legal services that benefited the grantor.[^6]

[7] Here, Colin Bogue and Glenn Bogue brought competing applications arising from the attorneyship for property of their mother. In dismissing the Glenn Bogue Application, Gilmore J. awarded Colin Bogue costs on a partial indemnity basis fixed in the amount of $4,400.00, all inclusive.[^7] In this Application, Colin Bogue was successful in removing Glenn Bogue as an attorney for property under the POAP. Based on this success, Colin Bogue is presumptively entitled to an award of costs. As I see no factor that displaces this presumption, Colin Bogue shall receive an award of costs of this Application.

[8] I accept the Respondent’s submission that he was successful in obtaining an order that the Applicant pass his accounts of the attorneyship. I do not see this as divided success in the Application because the Applicant succeeded in the dispute that “drove” the proceeding.[^8] The requirement to account is an incident of the attorneyship for property, pursuant to s. 42 of the SDA, accentuated here by the parties’ ongoing dispute over the Applicant’s payment from Ms. Bogue’s assets of the amount of a loan that Colin Bogue claims was owed to him by Ms. Bogue. I will, however, take this issue into consideration based on r. 57.01(4)(a).

[9] I do not accept that the Applicant established an entitlement to costs on a substantial indemnity basis. Costs on a substantial basis “are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties”.[^9] The disputes between the Applicant and the Respondent, including other legal proceedings, and the Respondent’s conduct giving rise to his removal as attorney for property are insufficient to support a claim for substantial indemnity costs. This is not one of those rare cases where an award of costs on a substantial indemnity level is warranted.

[10] In consideration of the Applicant’s Bill of Costs, I accept the Respondent’s submission that there is overlap between the various proceedings between the parties, and that the allocation of time for discrete tasks is not entirely attributable to this Application. I find that the Applicant has shown that $20,000.00 was reasonably incurred in this Application for fees, applicable taxes and disbursements. Any amounts incurred by the Applicant in excess of this amount may be claimed as costs in his Passing of Accounts Application if they can be shown to have been incurred for the benefit of Ms. Bogue for services apart from this Application and have not already been considered as part of the Applicant’s cost submissions in other proceedings.

[11] The question, then, is “to fix an amount of costs that is objectively reasonable, fair, and proportionate for the unsuccessful party to pay in the circumstances of the case.”[^10] Having considered all applicable principles set out by the case law and under Rule 57.01, including the complexity of the Application (r. 57.01(1)(c)) and the amount that Glenn Bogue could reasonably expect to pay (r. 57.01(1)(0.b) and in the exercise of my discretion, as set out in s. 131 of the Courts of Justice Act, I have concluded that it is reasonable, fair, just and proportionate to fix Colin Bogue’s partial indemnity costs payable by Glenn Bogue as $12,000.00, all inclusive.

[12] The attorney for property should be indemnified for the total of the costs reasonably incurred in this Application. The costs ordered payable by the Respondent does not derogate from this principle. As explained by the Supreme Court: “In so far as [an estate trustee] does not recover his costs from any other person, he is entitled to take his costs out of the fund held by him unless the court otherwise orders; and the court can otherwise order only on the ground that he has acted unreasonably, or in substance for his own benefit, rather than for the benefit of the fund.”[^11]

[13] There is a benefit to Ms. Bogue in the conclusion of the dispute between the attorneys for property that she chose, Colin Bogue and Glenn Bogue, and in an orderly passing of accounts. Accordingly, for Colin Bogue to be indemnified for the total amount of costs reasonably incurred in this Application ($20,000.00) after payment by Glenn Bogue of costs on a partial indemnity basis ($12,000.00), Colin Bogue shall be paid $8,000.00 in costs from the assets of Ms. Bogue.

C. Disposition

[14] On the basis of these reasons, I order that Colin Bogue is awarded costs of this Application in the amount of $20,000.00, all inclusive, payable by Glenn Bogue on a partial indemnity basis fixed in the amount of $12,000.00, with the balance of $8,000.00 payable from the assets of Ms. Bogue.

Justice A.A. Sanfilippo

Date: October 2, 2024

[^1]: Bogue v. Bogue, 2023 ONSC 1642. [^2]: Arvanitis v. Levers, 2017 ONSC 3758, at para. 81; Pettipas v. Pettipas, 2024 ONSC 2530, at para. 13. [^3]: Westover Estate v. Jolicouer, 2024 ONCA 81, at paras. 12-13; Sawdon Estate v. Watch Tower Bible and Tract Society of Canada, 2014 ONCA 101, at para. 84; McDougald Estate v. Gooderham (2005), O.A.C. 203, at paras. 78-80. [^4]: Arvanitis, at para. 81; Rudin-Brown et al. v. Brown AND Brown v. Rudin-Brown et al., 2021 ONSC 6313, at para. 20. [^5]: Fiacco v. Lombardi, 2009 46170 (O.N. S.C.), at para. 33. [^6]: Pettipas, at para. 15; Arvanitis, at para. 98; Rudin-Brown, at para. 22; Fiacco, at para. 33. [^7]: Bogue v. Bogue, 2023 ONSC 1642, at paras. 44-49. [^8]: Mihaylov v. 1165996 Ontario Inc., 2017 ONCA 218, at para. 8. [^9]: T.A.W. v. J.C.L., 2021 ONCA 270, at para. 4, citing Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at p. 134; Davies v. Clarington (Municipality) et al., 2009 ONCA 722, at para. 28; Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 26. [^10]: Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587, at para. 61, citing Boucher v. Public Accountants Council for the Province of Ontario et al. (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para. 26; Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519, at para. 12, leave to appeal to the SCC refused, [2019] S.C.C.A. No. 82. [^11]: Sawdon, at para. 81, applying Geffen v. Goodman Estate, 1991 69 (SCC), [1991] 2 S.C.R. 353, at pp. 390-91.