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Be Aware – “Continued and Persistent Lack of Self-Awareness” Results in Cost Consequences: Cardinal v. Perreault

Cardinal v. Perreault, 2020 ONSC 4825 – http://canlii.ca/t/j95r9

The case of Cardinal v. Perreault,[1] involved the issue of costs in two court applications pertaining to the estate of Joseph Edmond Beaulieu (the “Estate“). The first was an application for advice and directions commenced by Roger Cardinal (“Mr. Cardinal“) in his capacity as a testamentary trustee. The second was an application to pass accounts commenced by Ginette Perreault (“Ms. Perreault“) in her capacity as estate trustee of the Estate as well as in her capacity as attorney for property of Joseph Edmond Beaulieu (the “Deceased“).

Mr. Cardinal’s application resulted in several orders directed at Ms. Perreault including an order that she commence the application to pass accounts. Ms. Perreault consented to the court order and costs were reserved to the judge who would hear the application for the passing of accounts.

Following the adjudication of Ms. Perreault’s application, Mr. Cardinal sought costs of $89,683.60 on a full indemnity basis to be paid by Ms. Perreault personally or from the assets of the Estate. He did so on the basis that Ms. Perreault initially refused Mr. Cardinal’s reasonable requests for an accounting. As such, he argued that he ought not to have been required to bring his application on the basis that Ms. Perreault should have been willing to provide him with the disclosure sought.

Ms. Perreault also sought costs on a full indemnity basis to be paid by Mr. Cardinal personally or from the assets of the Estate. In doing so, Ms. Perreault directed the court to instances of Mr. Cardinal’s misconduct. Particularly, she cited instances where Mr. Cardinal pronounced challenges of her conduct. Furthermore, Ms. Perreault noted that Mr. Cardinal insisted that the application proceed in French although Mr. Cardinal and his counsel were fully bilingual, which increased her costs substantially.

Analysis

Writing for the Superior Court of Justice, Justice Tzimas refused to order that costs come out of the Estate on the basis that it was a modest estate and that it would be unfair to deplete it. Rather, citing a persistent ‘lack of self-awareness’ on the part of Mr. Cardinal and Ms. Perreault, Justice Tzimas Ordered costs personally against both parties.

In her reasons, Justice Tzimas noted that Ms. Perreault’s initial resistance to Mr. Cardinal’s reasonable requests for an accounting demonstrated a lack of understanding about her obligations as an estate trustee. However, this finding did not “diminish the fact that at some point in the court of litigation, Mr. Cardinal lost perspective and credibility”.[2]

As the hearing progressed, the inquiry on whether Mrs. Perreault’s expenses were reasonable and consistent with her fiduciary obligations as estate trustee and as attorney for Mr. Beaulieu was overtaken by the challenges to her personal integrity. That shift was an afront to the various thankless tasks that both Mrs. Perreault and her husband undertook to care for Mr. Beaulieu, while he was still alive, and then to manage his estate after he died. Mrs. Perreault was simple-minded in the way she approached her obligations but there was no foundation to the allegations that she acted in bad faith or that she misappropriated any funds.[3]

Mr. Cardinal made efforts to attack Ms. Perreault’s integrity and personal dignity. These included allegations of bad faith and misappropriation of Estate funds. This was qualified as an “unfortunate attack”.

Though Justice Tzimas held that the costs claimed by both Mr. Cardinal and Ms. Perreault were reasonable and proportional based on their respective counsels’ expertise, they were not justified due to the parties’ reprehensible conduct. Accordingly, costs were ordered in the amount of $18,000 in favor of Mr. Cardinal and the amount of $48,000 in favor of Ms. Perreault. These costs were reconciled such that Mr. Cardinal was ordered to pay $30,000.00 to Ms. Perreault personally.

[1] Cardinal v. Perreault, 2020 ONSC 4825

[2] Ibid at para 19.

[3] Ibid at para 19.

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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