The Determination of Costs in Capacity Litigation
Vriend v. Vriend and PGT, 2024 ONSC 4015
In Vriend v. Vriend and PGT (“Vriend”)[1], the Court determined the issue of costs regarding the work that was performed by a guardian on behalf of an incapable individual. The decision speaks to how a Court will always “examine what, if any, benefit the incapable person derived from the legal work which generated those costs”.[2] In Vriend, the Applicant was successful in attaining his costs on full indemnity basis.
The incapable, Ellen Vriend, had a son, Stephen (the “Applicant”) who was appointed as Ellen’s guardian of property, alongside Ellen’s sister, Deborah. Following a Court appearance in April of 2024, the Applicant and Section 3 counsel delivered cost submissions. This summary will focus solely on the Applicant’s cost submissions.
The Court began its analysis by stating that the overarching principle specific to cost submissions in capacity litigation:
“[T]he exercise of the Court’s discretion in respect of cost claims in capacity litigation should reflect the basic purpose of the SDA – to protect the property of a 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”: Fiacco v. Lombardi (2009), 82 C.P.C. (6th) 235 (Ont. S.C.), at para. 33, citing ss. 32(1) and 37 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30.[3]
The Court goes on to state that within capacity litigation, the success of a party is not a significant factor into the determination of costs, as seen in other types of civil litigation. Rather, as discussed in Gadula v Leroux, the objective is for the Courts to set costs at an amount that is reasonable and fair for an unsuccessful party to pay, in comparison to just covering the actual costs accumulated by the successful party.[4] Additionally, the Court reiterated, as good public policy, the importance of allowing guardians to recover their costs.
Lastly, the “normal practice” is that a party’s reasonable costs will be paid by the incapable individual’s estate unless “the conduct of the party seeking costs warrants a departure from the normal practice”.[5]
The Applicant sought his costs of the application on a full indemnity basis in the amount of $26,491.66 from Ellen’s property. The Court broke down the cost analysis into three sections; 1) the costs to be paid from Ellen’s property 2) the scale upon which costs are payable and 3) fixing the amount of costs payable.
1) The Costs to be Paid from Ellen’s Property
In previous rulings the Court described the Applicant’s devotion to Ellen, and how he’s always had her best interest at heart. This translated in his work as Ellen’s guardian. The Court stated that the Applicant’s conduct did not deviate from normal practice and ordered that Applicant’s “reasonable costs be paid from Ellen’s property”.[6]
2) The Scale Upon Which Costs are Payable
Although a party’s success capacity litigation is not a vital consideration in cost determination, it is not irrelevant.[7] The Court goes on to list some of the Applicant’s requests for relief that were denied. However, the Court balanced these failed requests with the “overall success on the application”, stating that these benefits were in Ellen’s best interest. On this basis, the Applicant was awarded his costs on a full indemnity basis.
3) Fixing the Amount of Costs Payable
The Court reduced the Applicant’s costs from $22,285.50 to $15,000.00 on the grounds that the Applicant was not efficient in his “initial approach” as a guardian of property. [8] Some of these inefficiencies include the Applicant’s confusion with the Court process, as well as the Applicant’s counsel including in their dockets “law related tasks” that were completed by non lawyer employees. [9]
The Court reduced the Applicant’s costs by approximately $7,000 due to these mistakes and inefficiencies.
Concluding Comments
When making an order for costs in capacity litigation, the Court is always required to consider the best interests of the incapable person.
—
[1] Vriend v. Vriend and PGT, 2024 ONSC 4015
[2] Ibid at para 9
[3] Ibid at para 9
[4] Gadula v Leroux, 2016 ONSC 6990 at para 16
[5] Ibid at para 14
[6] Ibid at para 27.
[7] Ibid at para 29.
[8] Ibid at para 35.
[9] Ibid at para 56.
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Written by: Gabriella Banhara
Posted on: July 25, 2024
Categories: Commentary, WEL Newsletter
Vriend v. Vriend and PGT, 2024 ONSC 4015
In Vriend v. Vriend and PGT (“Vriend”)[1], the Court determined the issue of costs regarding the work that was performed by a guardian on behalf of an incapable individual. The decision speaks to how a Court will always “examine what, if any, benefit the incapable person derived from the legal work which generated those costs”.[2] In Vriend, the Applicant was successful in attaining his costs on full indemnity basis.
The incapable, Ellen Vriend, had a son, Stephen (the “Applicant”) who was appointed as Ellen’s guardian of property, alongside Ellen’s sister, Deborah. Following a Court appearance in April of 2024, the Applicant and Section 3 counsel delivered cost submissions. This summary will focus solely on the Applicant’s cost submissions.
The Court began its analysis by stating that the overarching principle specific to cost submissions in capacity litigation:
“[T]he exercise of the Court’s discretion in respect of cost claims in capacity litigation should reflect the basic purpose of the SDA – to protect the property of a 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”: Fiacco v. Lombardi (2009), 82 C.P.C. (6th) 235 (Ont. S.C.), at para. 33, citing ss. 32(1) and 37 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30.[3]
The Court goes on to state that within capacity litigation, the success of a party is not a significant factor into the determination of costs, as seen in other types of civil litigation. Rather, as discussed in Gadula v Leroux, the objective is for the Courts to set costs at an amount that is reasonable and fair for an unsuccessful party to pay, in comparison to just covering the actual costs accumulated by the successful party.[4] Additionally, the Court reiterated, as good public policy, the importance of allowing guardians to recover their costs.
Lastly, the “normal practice” is that a party’s reasonable costs will be paid by the incapable individual’s estate unless “the conduct of the party seeking costs warrants a departure from the normal practice”.[5]
The Applicant sought his costs of the application on a full indemnity basis in the amount of $26,491.66 from Ellen’s property. The Court broke down the cost analysis into three sections; 1) the costs to be paid from Ellen’s property 2) the scale upon which costs are payable and 3) fixing the amount of costs payable.
1) The Costs to be Paid from Ellen’s Property
In previous rulings the Court described the Applicant’s devotion to Ellen, and how he’s always had her best interest at heart. This translated in his work as Ellen’s guardian. The Court stated that the Applicant’s conduct did not deviate from normal practice and ordered that Applicant’s “reasonable costs be paid from Ellen’s property”.[6]
2) The Scale Upon Which Costs are Payable
Although a party’s success capacity litigation is not a vital consideration in cost determination, it is not irrelevant.[7] The Court goes on to list some of the Applicant’s requests for relief that were denied. However, the Court balanced these failed requests with the “overall success on the application”, stating that these benefits were in Ellen’s best interest. On this basis, the Applicant was awarded his costs on a full indemnity basis.
3) Fixing the Amount of Costs Payable
The Court reduced the Applicant’s costs from $22,285.50 to $15,000.00 on the grounds that the Applicant was not efficient in his “initial approach” as a guardian of property. [8] Some of these inefficiencies include the Applicant’s confusion with the Court process, as well as the Applicant’s counsel including in their dockets “law related tasks” that were completed by non lawyer employees. [9]
The Court reduced the Applicant’s costs by approximately $7,000 due to these mistakes and inefficiencies.
Concluding Comments
When making an order for costs in capacity litigation, the Court is always required to consider the best interests of the incapable person.
—
[1] Vriend v. Vriend and PGT, 2024 ONSC 4015
[2] Ibid at para 9
[3] Ibid at para 9
[4] Gadula v Leroux, 2016 ONSC 6990 at para 16
[5] Ibid at para 14
[6] Ibid at para 27.
[7] Ibid at para 29.
[8] Ibid at para 35.
[9] Ibid at para 56.
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