Ontario Superior Court of Justice

Court File No.: CV-24-0378-00ES
Date: 2025-01-17

Between

In the Estate of Laurette Marie Patriquin, Deceased
Ashley Laurette Pike, Estate Trustee for the Estate of Laurette Marie Patriquin
Applicant

• and -
  Hospital Shriners Pour Enfants (Quebec) Inc., Shriners Children’s Twin Cities, Khartum Shrine Patient Transportation Fund and Gillette Children’s
  Respondents

Applicant Counsel: Hannah Gladstone
Respondent Counsel:
A. McEwan (for Hospital Shriners Pour Enfants (Quebec) Inc. and Shriners Children’s Twin Cities)
No one appearing for Khartum Shrine Patient Transportation Fund and Gillette Children’s

Heard: December 12, 2024, at Thunder Bay
Costs Submissions received: January 8, 2025

Justice: S.J. Wojciechowski

Decision on Motion

Introduction

[1] Laurette Marie Patriquin died on April 30, 2022, leaving a Last Will and Testament dated February 3, 2015 (“the Will”).

[2] Ashley Laurette Pike (“the Applicant”) was appointed the trustee of the Estate of Laurette Marie Patriquin (“the Estate”) pursuant to a Certificate of Appointment of Estate Trustee with a Will by the Superior Court of Justice on October 27, 2022.

[3] The Will names The Shriners Hospital for Children, an institution located at 2025 E. River Parkway in Minneapolis, Minnesota, (“the Shriners Hospital”), as a beneficiary. At the time of the death of Laurette Marie Patriquin, the Shriners Hospital no longer existed at this address in Minneapolis, Minnesota.

[4] As such, the Applicant seeks directions on how to proceed with the administration of the Estate, specifically with respect to what to do with the share of the Estate bequeathed to the Shriners Hospital.

[5] In order to sort out the issues presented by the Applicant, Rule 5.03(1) of the Rules of Civil Procedure provides that all parties who are necessary to adjudicate effectively should be added as a party to the proceeding. As such, four respondents who might possibly be a successor to the Shriners Hospital were served with the application materials.

[6] When a court interprets a will, it is to consider the whole will and in light of the circumstances relevant to the person making the will. Bank of Nova Scotia Trust Co. v. Common Ground Women’s Centre, 2010 ONSC 63, and Ukrainian Youth Assn. of Canada v. Galandiuk Estate, 2001 CarswellOnt 5001.

[7] Considering the intentions of the Estate based upon the background and circumstances of Laurette Marie Patriquin at the time she made the Will, the general purpose of the Will included a charitable intention to leave monies to the institution which provided timely and professional health care services to the great-granddaughter of Laurette Marie Patriquin.

[8] The evidence in support of the Application consists of the affidavit of Ashley Laurette Pike sworn August 28, 2024 and the affidavit of Helina Murray sworn October 23, 2024. Both of these affidavits outline the efforts to track down and identify the successor to the Shriners Hospital. Based upon this affidavit evidence, and noting that the applicant did not take a position with respect to the successor issue, I am satisfied that after the Shriners Hospital shut down and moved its operations, it became – in whole or in part – the respondent, Shriners Children’s Twin Cities (“the Shriners Twin Cities”).

[9] Applying the cy-près doctrine, and relying on Weninger Estate v. Canadian Diabetes Assn., [1993] O.J. No. 4479, in order to deal with the bequest to the Shriners Hospital by achieving a goal which is as close as possible to the bequest of Laurette Marie Patriquin as contained in the Will, the Estate is hereby directed to distribute that share originally designated for the benefit of the Shriners Hospital to the Shriners Twin Cities.

[10] Accordingly, an order shall issue in the following terms:

THIS COURT ORDERS that the residual gift set out in paragraph f(i) of the last will and testament of Laurette Marie Patriquin, dated February 3, 2015, being a 1/12th share of the residue of the estate of Laurette Marie Patriquin gifted to “The Shriners Hospital for Children, 2025 E. River Parkway in Minneapolis, Minnesota, USA”, shall be paid to “Shriners Children’s Twin Cities, 215 Radio Drive, Woodbury, Minnesota, USA”.

Costs

[11] The Applicant then seeks two orders for costs, which it is proposed to be payable by the Estate.

[12] In this regard, an order for the costs of the Shriners Twin Cities in the amount of $4,644.30, inclusive of taxes and disbursements was sought. In addition, the costs of the Applicant were sought in the amount of $26,459.97, inclusive of taxes and disbursement.

[13] At the end of the hearing of the Application, I requested that I be provided with greater detail from the Applicant in order to support the costs’ awards being sought.

[14] With respect to the costs of the Shriners Twin Cities, after reviewing the Costs Outline which was filed, I assess a reasonable amount of costs, inclusive of taxes and disbursements, which should be payable on a substantial indemnity basis by the Estate to be $3,000.

[15] With respect to the costs of the Applicant, I voiced concerns over the amount being sought for the Application which was uncontested. While the effort which went into searching potential successors to the Shriners Hospital, and assembling the Application Record and Factum was undoubtedly significant, I asked the Applicant to provide greater detail to support the claim being advanced.

[16] To supplement the Costs Outline of the Applicant which was filed at the hearing of this matter, Costs Submissions and a Bill of Costs was filed.

[17] It is acknowledged by this court that the Application was necessary in order to address the deficiency in the Will. An order of the Superior Court of Justice was required in order to determine whether the gift set out in the Will lapsed or whether a charitable purpose existed which could be fulfilled.

[18] I also agree that in these circumstances, legal costs reasonably incurred by the Estate should be covered and paid by the Estate.

[19] My concern over the amount sought which I discussed with the Applicant at the original hearing had nothing to do with the basis for which the Application was brought. Instead, it was acknowledged that the amount which was at issue over which directions were required was approximately $40,000, and $26,500 plus another $4,600 in costs were requested as “reasonable amounts” to incur in addressing the $40,000 question.

[20] The Bill of Costs submitted by the Applicant supports an hourly rate of $350 for the Applicant’s counsel, Hannah Gladstone. The hourly rate for the clerk is set out as $150 for work done before November 2024 and $175 for work completed after that date.

[21] In total, counsel for the Applicant spent 53.2 hours on the application, and the litigation clerk’s work supporting the Application amounted to 28.6 hours.

[22] I note that in preparing the documents for the Application Record, counsel spent approximately 9.8 hours. In addition, the Factum filed in support of the application took counsel 15.8 hours.

[23] I also note that in order to adjourn this uncontested matter, one hour is docketed for counsel to seek an adjournment on consent, which presumably could have been done by the filing of a Motion Confirmation Form by the litigation clerk without the need for counsel to be involved. And the argument of the application is noted to have taken 2.5 hours which I recognize includes preparation time, but from my notes the actual hearing took less than thirty minutes.

[24] In light of the rates being charged – which typically apply to senior experienced counsel in the District of Thunder Bay – a high level of expertise is assumed which, by its very nature, should require less time to be spent on a file.

[25] In looking at the jurisprudence, if the litigation engages an applicable public policy, such as the need to give effect to valid wills that reflect the intention of competent testators, or the need to ensure that estates are properly administered, then costs should paid by the estate. See McDougall Estate v. Gooderham. I find that the public policy considerations were engaged with this Application.

[26] However, the costs which are payable are those which are warranted and reasonable. While costs of the Application should be paid by the Estate because of the need to determine what to do with the Shriners Hospital’s share, I do not read the cases to suggest that a departure from costs as considered in the context of other civil litigation matters should not follow. Section 131 of the Courts of Justice Act, Rule 57 and the proportionality concept in Rule 1.04(1.1) still apply.

[27] In an uncontested application involving somewhat complicated matters, I might be persuaded to award costs on a partial indemnity basis somewhere in the range of $5,000.

[28] In this Application, the proportionality consideration should take into account that at most, $40,000 was at stake. There can be no doubt, then, that spending almost $30,000 in order to pay out $40,000 is not proportional in light of Rule 1.04(1.1).

[29] I am cognizant of the Applicant’s need to seek directions, and putting other parties on notice of that intention to give them the opportunity to make submissions takes time. And I note that the Factum filed provided a detailed and thorough exploration of the relevant legal principles. Finally, considering the concept of full indemnity which often applies in considering costs’ orders in estate matters, I am persuaded that more than $5,000 in costs should be ordered. This is especially in light of the fact that the Shriners Twin Cities was aware of the nature of the costs being sought by the Applicant.

[30] The difficulty I have in coming anywhere close to the $26,500 being sought is that none of the remaining beneficiaries were served with the Application materials and are unaware of the extent of the claim for costs. For obvious reasons, ordering the Estate to pay costs in the amount of $30,000 would impact the available share of the Estate to which all beneficiaries are entitled. In addition to the proportionality issue I have already addressed, the time which should have been spent pulling together materials for an uncontested matter which took less than a half hour to argue does not warrant a costs’ award of $26,500.

[31] All this leads me to the conclusion that a reasonable costs’ order would be in the amount of $10,000.

[32] As such, two further orders shall issue as follows:

THIS COURT ORDERS that the costs of this proceeding which were incurred by Shriners Children’s Twin Cities shall be paid out of the assets of the estate of Laurette Marie Patriquin in the total amount of $3,000, inclusive of taxes and disbursements.

THIS COURT ORDERS that the costs of the applicant shall be paid out of the assets of the estate of Laurette Marie Patriquin in the total amount of $10,000, inclusive of taxes and disbursements.

“Original signed by” ___
S.J. Wojciechowski

Released: January 17, 2025