This was a costs decision following the dismissal of an application by two siblings to remove the Respondent, their sister, as agent and attorney for their mother pursuant to a personal directive.

The Applicants alleged elder abuse and mismanagement of their mother’s care, and claimed parental alienation and improper visitation restrictions. The Respondent asserted her actions complied with the personal directive and their mother’s best interests. The Respondent was successful and the Application was dismissed. As such, the Respondent sought costs on behalf of her mother.

Although unsuccessful in their Application, the Applicants argued they had reasonable grounds to believe the Respondent was not acting in their mother’s best interests and that the Application was worthwhile and necessary. The Applicants also pointed to divided success throughout the litigation to argue that each party should bear their own costs. The Respondent sought full indemnity costs and submitted a Bill of Costs for legal fees of $178,753.12. In the alternative, the Respondent sought enhanced costs with a 50-60% multiplier in an approximate range of $139,000-$149,000.

Justice Jugnauth confirmed that a successful party is presumptively entitled to costs pursuant to Rule 10.29. The Court concluded that the Respondent was the successful party and rejected the Applicant’s argument of divided success, noting that interim orders obtained during litigation do not amount to meaningful success, especially where those steps were unnecessary or arose from the Applicants’ own conduct.

Jugnauth J. then considered whether enhanced costs were appropriate pursuant to Rule 10.33 and the governing principles of proportionality. The Court emphasized that full indemnity costs were reserved for rare and exceptional circumstances involving reprehensible conduct. The Court found that although the Applicants’ behaviour did not support full indemnity costs, their conduct warranted an elevated award because they brought unnecessary litigation, advanced serious allegations of elder abuse and misconduct, failed to adduce supporting evidence, and engaged in other blameworthy litigation conduct.

As such, the Court held that enhanced costs were justified to deter similar behaviour and restore, to the extent possible, the legal expenses the Respondent incurred which were expended from her mother’s estate. The determine quantum of costs, Justice Jugnauth emphasized proportionality, which included reviewing the Respondent’s full indemnity and Schedule C Bill of Costs and the items claimed. Despite Rule 3.10 providing that Part 5 questioning does not apply to an action commenced by originating application unless another Rule allows for it, the parties agree, or the Court orders, Justice Jugnauth exercised the Court’s discretion to compensate the Respondent for steps taken in relation to disclosure and questioning.

The Court exercised its discretion to award lump sum costs to reflect the Respondent’s complete success and to hold the Applicants accountable for unproven allegations of serious impropriety. Jugnauth J. applied an inflation multiplier and a litigation misconduct multiplier to award $60,000 for legal fees, plus disbursements, charges, and GST.