Costs is always a contentious issue especially after protracted litigation. Sometimes it can even be the last issue that stands in the way of a full and final settlement. Unfortunately, such difficulties exist just the same in proceedings under the Substitute Decisions Act, 1992 with respect to incapable or allegedly incapable persons.
Vriend v Vriend and PGT, 2024 ONSC 4015, is a recent ruling on costs where multiple attendances were required before guardians of property and of personal care were finally appointed. In this instance, Justice Corthorn considered the costs claimed by the applicant Stephen Vriend and by section 3 counsel. Initially, the applicant sought to be the sole guardian of property and of person for Ellen Vriend. As issues were made apparent to the Court with respect to the guardianship of property, section 3 counsel became appointed, and the applicant revised his materials to seek a joint appointment as guardian of property with one of the incapable person’s siblings. Thereafter, the applicant continued to seek an order dispensing with security in the face of the PGT’s objections. Ultimately, the applicant was mostly successful – he is still a guardian of property, albeit with another, and they were ordered to post security.
In considering the Applicant’s costs, Justice Corthorn started by canvassing the general principles for costs in SDA proceedings by referring to Fiacco v. Lombardi (2009), 82 C.P.C. (6th) 235 (Ont. S.C.) and Gadula v. Leroux, 2016 ONSC 6990:
- The Court’s role in determining costs of an SDA proceeding is part and parcel of the Court’s role under the Act which is the protection of vulnerable persons.
- The Court must examine what, if any, benefit the incapable person derived from the legal work that generated the costs claimed from the incapable person’s property.
- The notion of success is less significant as it is in general civil litigation.
- It is good public policy to permit section 3 counsel to recover their full costs but section 3 counsel must satisfy the Court that their work and the fees and disbursements for their work are reasonable.
As a comment to the foregoing takeaways from Fiacco and Gadula, parties to an SDA proceeding should be aware that every step that they take, from inception to the end of the proceeding, will be under a microscope from the perspective of the Court’s duty to the incapable (or allegedly incapable) person. The SDA clearly sets out the duties of a guardian of property and of the person once appointed. However, it is just as important for Applicants to conduct themselves in accordance with those duties as they are seeking to be appointed. Applicants in an SDA proceeding ought to treat the court process (especially if it becomes contentious) as an interview process for the “job” so to speak and conduct themselves accordingly. Otherwise, you will open yourself to criticism and corresponding costs reductions even if you are ultimately successful as was the case in Vriend.
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