Today’s blog was written by Tyler Lin, student-at-law
Good Deeds Deserve Fair Rewards: Daniel Estate (Re) and Ontario’s Common Law Scheme for Compensation for Attorneys for Personal Care
Last year, I wrote a blog exploring the theme of whether bad deeds deserve punishment in dependant support claims (the answer: not always). This blog explores whether good deeds deserve rewards – as the court described the scenario in Daniel Estate (Re), 2019 ONSC 2790: “this is a “good news” story.”
Mr. and Mrs. Daniel were philanthropists who amassed a significant investment portfolio during their marriage. The problem? They had no next of kin or anyone to look after them as they grew older.
For over twenty years, their former neighbours and close friends, Mr. and Mrs. Austin, provided the Daniels with assistance. While the help started out as small favours, as the Daniels aged, the Austins became (constructively, in the eyes of the Court) their full time attendants.
The Austins would regularly attend the Daniels’ home and perform all manner of daily chores, including banking, grocery shopping, chauffeuring, and household repairs. The Austins even drove the Daniels to a variety of medical appointments. During this time, the Austins also provided the aging Daniels with friendship and good company.
The Austins’ motives appeared to be entirely altruistic: while the Daniles were alive, the Austins never asked for a penny.
The services provided by the Austins allowed the Daniels to remain independent and live at home well into old age. In 2011, Mr. Austin even attended with Mr. Daniel at RBC to meet with Mr. Daniel’s financial planner. During the meeting, Mr. Austin was introduced as Mr. Daniel’s Power of Attorney for Property. From that point on, Mr. Austin would assist with Mr. Daniel’s financial affairs. Mr. Austin excelled in this role and under his care, Mr. Daniel’s investment portfolio grew in value from $6.06 million to over $7.36 million.
As the Daniels’ health deteriorated, they decided to move into an assisted living home. The Austins helped sell the Daniels’ home, downsize their belongings, and move into their new apartment.
Sadly, Mr. Daniel passed away in 2017. The Austins assisted with Mr. Daniels’ funeral arrangements. While Mrs. Daniel was formally named as Mr. Daniel’s estate trustee, it was the Austins who carried out most of the duties, as they were Powers of Attorney for Mrs. Daniel.
At Mrs. Daniel’s suggestions, the Austin brought an application to pass their accounts and claimed compensated for their work. In support of their claim, the Austins hired a Chartered Professional Accountant to prepare a detailed financial analysis which accounted for every transaction over $1,000.
On a review of the Austins’ claim, Justice Di Luca found that the Austins acted “conscientiously and scrupulously” throughout their years assisting the Daniels and well-deserved to be paid for their work. The question to be determined was how much.
The Austins sought compensation for three types of work done: as attorneys for care, as attorneys for property, and as estate trustees.
With regards to their work as estate trustees, Mr. Daniel’s will clearly set out a formula for calculating their compensation. Compensation for work done as attorneys for property is governed by Ont. Regulation 26/95 of the Substitute Decisions Act. However, there is currently no statutory framework for calculating compensation for personal care attorneys in Ontario.
As a result, the Court turned to the common law for guidance in responding to claims for compensation from personal care attorneys. While personal care attorneys are not generally paid for their work, the Court found that it had the discretion to fix and award such compensation when appropriate. In particular, the claimants were required to put forward an adequate record detailing their work.
What is an “adequate record”? The Court held that an adequate record does not require the personal care attorneys to keep meticulous dockets of every hour spent. Rather, sophisticated and reliable estimates will do.
In this case, the Austins relied on the detailed report prepared by an accountant and a report written by a licensed paralegal. The paralegal was also a Certified Case Manager and Certified Canadian Life Care Planner and who had experience calculating costs of care in her regular practice in personal injury law.
The Court held that the Austins had put forward sufficient proof of their work to support their claim for compensation. As a result, the Court awarded the Austins compensation in the total amount of $757,659.87.
Sometimes, it pays to be a good person. This case was an example of the court rewarding good deeds. However, the Austins’ success was likely also a result of careful record keeping, a full evidentiary record before the court, and the endorsement of Mrs. Daniel.
While compensation paid to personal care attorneys will likely remain rare, it is a good reminder that should you wish to seek compensation for this type of work, meticulous docketing of your hours is not required, but the preparation of professional reports justifying compensation is money well spent.