



COURT OF APPEAL FOR ONTARIO

CITATION: Johnson v. Marzouca, 2016 ONCA 298

DATE: 20160422

DOCKET: C60569

Weiler, Cronk and Benotto JJ.A.

BETWEEN

Carlene Johnson

Appellant (Applicant)

and

Courtney Marzouca

Respondent (Respondent)

Matthew Tubie, for the appellant

David Campbell, for the respondent

Heard:  April 15, 2016

On appeal from the judgment of Justice Jennifer Woollcombe
    of the Superior Court of Justice, dated May 26, 2015.

ENDORSEMENT

[1]

The appellant is the sole surviving relative of her aunt, Mary Simpson,
    who died intestate on March 6, 2014 at 87 years of age.  Following her aunts
    death, the appellant applied under r. 14.05 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194 (the 
Rules
) for various declaratory relief
    concerning her aunts estate, including with respect to the respondents role,
    for a brief time, under a Power of Attorney granted to him by the deceased.  In
    her application, the appellant alleged, among other things, that the Power of
    Attorney held by the respondent was obtained by fraud and, further, that he had
    no lawful authority to be designated by the deceased as the beneficiary of her
    life insurance policy.  The appellant also sought an accounting from the
    respondent of his activities under the Power of Attorney and of how the money
    collected under the deceaseds life insurance policy had been used.

[2]

Before this court, the appellant maintains that at the hearing of the
    application, she narrowed the relief sought, seeking only an accounting from
    the respondent and a declaration that she had a vested interest in the
    deceaseds estate and life insurance policy.

[3]

The application was originally scheduled for a 30-minute hearing.  In the
    event, almost one-full day of court hearing time was required to complete argument
    of the application.  After hearing submissions from both parties, the
    application judge dismissed the application and awarded costs to the respondent
    in the amount of $8,000.

[4]

The appellant appeals.  She argues in her factum that the application
    judge erred: i) by dismissing the application on the basis that the appellant
    had failed to apply for relief under r. 74 of the
Rules
, rather than
    r. 14.05; ii) by relying on evidence that was not properly before her; iii) by
    concluding that the appellant lacked standing to bring the application; and iv)
    by awarding costs in favour of the respondent.

[5]

We conclude that the appeal must be dismissed.

[6]

Contrary to the appellants contention, the application judge did not
    base her dismissal of the application on the fact that the appellant had not
    moved for relief under r. 74 to be appointed estate trustee, without a will, of
    her aunts estate.  Nor did she make any ruling that the appellant lacked
    standing to bring her application.  Rather, the application judge noted that the
    r. 74 procedural route is available if the propriety of the respondents
    actions under the Power of Attorney granted to him by the deceased is to be
    challenged.

[7]

The application judge did not err in her comments regarding the
    availability of r. 74.  There were several routes available to the appellant 
    under the
Rules
and the
Substitute Decisions Act, 1992
, S.O.
    1992, c. 30  to seek relief regarding her aunts estate and an accounting from
    the respondent.  She has failed to date to pursue these options.

[8]

The application judge found that:

(1)

after
    the respondent received the Power of Attorney from the deceased, he assisted
    her with her medical appointments and care conferences at the nursing home in
    which she lived, and paid her bills;

(2)

the
    respondent paid for the deceaseds funeral expenses from the proceeds of the
    insurance policy of which he had been made beneficiary.  These expenses
    exceeded the value of the proceeds under the life insurance policy;

(3)

the
    respondent had not claimed to be the deceaseds next of kin, nor had he made
    any claim on her estate;

(4)

there
    was no evidence to support the claims that the deceased did not have the
    required mental capacity to increase her life insurance or that the respondent
    had no lawful authority to become the beneficiary of the insurance policy in
    question;

(5)

there
    was no evidentiary basis for a claim of fraud;

(6)

the
    respondent had provided an accounting of the insurance proceeds under the
    policy.  (We note, in any event, that the policy did not form part of the
    deceaseds estate); and

(7)

there
    was no basis to declare that the respondents exercise of the Power of Attorney
    was ineffective and void.

[9]

We see no error in these findings.  They were available to the
    application judge on the record before her.

[10]

At the appeal hearing, the appellant also challenged the fairness of the
    hearing before the application judge.  This challenge fails.

[11]

The transcript reveals no unfairness to the appellant at the application
    hearing, nor any impediment, caused by the application judge, to her opportunity
    to fully argue the application.  To the contrary, the transcript confirms that
    the application judge extended every accommodation to the appellants counsel
    notwithstanding that he had grossly understated the time required for the
    hearing, was double booked in another court, returned late to the Superior
    Court after the matter was held down to accommodate his conflicting court
    appearances, advanced arguments not set out in the appellants Notice of
    Application and sought to file a supplementary affidavit by the appellant
    without proper notice or service.  We note that, notwithstanding these
    difficulties, the application judge afforded the appellant an opportunity to
    file additional written materials and the appellant did so.

[12]

We also see nothing in the record to support the claim that the
    application judge relied on evidence that was not properly before her.

[13]

Finally, the application judges discretionary costs award attracts
    deference from this court.  Unless it is demonstrated that the award is tainted
    by an error in principle or that it is plainly wrong, there is no basis for
    appellate intervention with the award.

[14]

In this case, the appellant made allegations of fraud and serious
    wrongdoing against the respondent that were either abandoned or not
    substantiated at the hearing of the application; the application judge
    concluded that the conduct of the hearing by the appellants counsel lengthened
    unnecessarily the duration of the hearing, leading to increased costs; and the
    respondent was entirely successful on the application.  These were proper and
    necessary considerations in the fixing of costs under r. 57.01 of the
Rules
. 
    In the circumstances, we see nothing unreasonable or disproportionate in the
    application judges costs award.

[15]

For the reasons given, the appeal is dismissed.  Pro Bono Law Ontario
    assisted the respondent with this appeal.  Counsels submissions on behalf of
    the respondent were helpful to the court.  The respondent is entitled to his
    costs of the appeal, fixed, as requested, in the modest amount of $1,000 to
    reflect only disbursements and all applicable taxes.

K.M. Weiler J.A.

E.A. Cronk J.A.

M.L. Benotto J.A.


