MCDONALD ESTATE (RE), 2013 ABQB 602
10.31: Court-ordered costs award
10.33: Court considerations in making costs award
10.52: Declaration of civil contempt
10.53: Punishment for civil contempt of Court
The Applicants, Cheryl Mackintosh (“Cheryl”) and Michael McDonald (“Michael”), were the co-guardians and co-trustees of a dependent adult, Arlene Mackintosh (“Arlene”). The Applicants sought to finalize remaining probate issues of an estate matter and to declare the former trustee of Arlene, Joan Gusa (“Gusa”), in contempt and a vexatious litigant.
Gusa failed to file any materials in response to the Application and sought a last minute adjournment, which was a tactic she had used in the past. Mahoney J. held that there were no grounds to grant the adjournment and that the request was simply for the purposes of delay. Further, when Court Orders had been made, she failed to comply with the terms.
On the issue of whether Gusa was in contempt of Case Management Orders, Mahoney J. referred to the provisions of Rule 10.52(3) and stated that the purpose of the contempt Rules is to achieve compliance with Court Orders and to uphold the authority of the Court. Gusa was declared to be in contempt, as she had repeatedly failed to respond to, or ignored, Undertakings ordered in eleven Case Management Orders. No reasons were given for the noncompliance, nor did she file any Affidavits to explain what attempts had been made to comply with the Orders.
With respect to the punishment under Rule 10.53 for being in contempt, Mahoney J. considered the fact that Gusa had made no apology or any kind of attempt to purge her contempt, and that the Applicants had incurred significant costs and wasted time as a result of Gusa’s failure to comply with the Orders. Gusa was ordered to pay a fine of $1,100.00 – $100.00 for each of the eleven failures to comply.
Mahoney J. further reviewed Gusa’s conduct throughout the estate matter and declared her to be a vexatious litigant: she failed to follow Court Orders, delayed proceedings, refused to consent to basic steps in administering the estate, and made unfounded allegations of misconduct against third parties. In deciding the appropriate Costs in the circumstances, Mahoney J. held that the Order should “bring home to Ms. Gusa the seriousness of her actions”. Gusa was ordered to pay 4 times Column 5 Costs related to the Case Management, contempt and vexatious litigant Applications.View CanLII Details