Petersen v. Public Guardian and Trustee (Sask.), (2015) 481 Sask.R. 37 (QB)

• Judge: Kalmakoff, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 11, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 481 Sask.R. 37 (QB);2015 SKQB 243

Petersen v. Public Guardian (2015), 481 Sask.R. 37 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. AU.043

Lorne and Katherine Petersen Applicants v. The Public Guardian and Trustee (respondent)

(2005 Q.B. No. 1792; 2015 SKQB 243)

Indexed As: Petersen v. Public Guardian and Trustee (Sask.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Kalmakoff, J.

August 11, 2015.

Summary:

The applicants were decision-makers for their son, having been appointed as his personal and property guardians under the Adult Guardianship and Co-decision-making Act on December 6, 2005. The applicants applied under s. 51 of the Act to be compensated for their services as property guardians from December 6, 2005 to September 30, 2011.

The Saskatchewan Court of Queen's Bench ordered that a payment of $58,331.60 be made from Jeffrey's estate in favour of the applicants, jointly, as compensation for their services as property guardians from December 6, 2005, through September 30, 2011.

Guardian and Ward - Topic 1341

Supervision of the guardian by the courts - Compensation of guardian - General - The applicants were decision-makers for their son, having been appointed as his personal and property guardians under the Adult Guardianship and Co-decision-making Act on December 6, 2005 - The applicants applied under s. 51 of the Act to be compensated for their services as property guardians from December 6, 2005 to September 30, 2011 - Section 51 of the Act had been amended on October 1, 2011 - At issue was: (1) were the applicants entitled to be compensated for their role as property guardians for that period; and (2) if so, how should the amount of that compensation be determined? - The Saskatchewan Court of Queen's Bench held that the old version of s. 51 should govern on this application - There was a strong presumption against retrospective operation of legislation - Legislation operated retrospectively only in two circumstances: (1) such an intention was clearly discernable from, or expressed in the wording of the legislation; or (2) it arose by necessary implication - Nothing in the plain language of the Act suggested that the amendments to s. 51 were intended to apply retrospectively, nor was retrospective effect necessary by implication - While the plain wording of s. 51, as it existed in 2005, appeared to contemplate a contemporaneous application to the court for periodic and ongoing compensation of a decision-maker, there was nothing that specifically precluded an application made after the fact - The Act itself did not contain a limitation period, and the application for compensation by a guardian was not a "claim" to which the Limitations Act applied - See paragraphs 15 and 16.

Guardian and Ward - Topic 1341

Supervision of the guardian by the courts - Compensation of guardian - General - The Saskatchewan Court of Queen's Bench discussed the relevant considerations for an award of compensation to property guardians under s. 51 of the Adult Guardianship and Co-decision-making Act - The court held that the pre-2011 version of the Act provided that a guardian's fees could be set only by order of the court, but did not specify a formula or give any guidance respecting determination of quantum of fees - The determination was a matter of court discretion - The court held that the fees awarded to a guardian should be reasonable in all the circumstances - The court stated that "... it is also important to note that the focus should not be on the size or value of the estate being administered ... . To set a standard 'percentage' rate for such compensation would be inappropriate, as each case must be decided with reference to its particular facts ... . Fair and reasonable compensation is based on the amount and quality of services rendered ... . The court must consider the amount, nature and quality of the responsibility and work involved in administering and managing the affairs of the person in question. Large-in-value estates which are easy to administer do not necessarily justify the same rate of compensation as more complex estates ... . And, where the administration of the subject's affairs requires a property guardian to be involved to an extent greater than simply managing money, a larger fee may be justified ... ." - See paragraphs 18 to 27.

Guardian and Ward - Topic 1341

Supervision of the guardian by the courts - Compensation of guardian - General - The applicants were decision-makers for their son (Jeffrey), having been appointed as his personal and property guardians under the Adult Guardianship and Co-decision-making Act on December 6, 2005 - Jeffrey had suffered serious traumatic injuries in a motorcycle accident on September 4, 2004 - He was not at fault for the accident, which occurred just weeks before his 23rd birthday - He was severely incapacitated as a result of the injuries he suffered - In 2010, the civil suit related to Jeffrey's accident was settled, and he received a payment of $1,002,278.95 from Saskatchewan Government Insurance - The applicants applied under s. 51 of the Act to be compensated for their services as property guardians from December 6, 2005 to September 30, 2011 - The Saskatchewan Court of Queen's Bench allowed the application and ordered that a payment of $58,331.60 be made to the applicants jointly, from Jeffrey's estate - Although the prior Act applied, and therefore the 2.5% rate of compensation outlined in the Regulations was not mandatory, it was an appropriate guideline - Given the nature and value of Jeffrey's estate, the degree of responsibility imposed on the applicants by their appointment as guardians, the nature of work done by them, and the care and skill exhibited by them in the administration of Jeffrey's property and personal affairs, this was fair and reasonable compensation, and it bore a reasonable relationship to the work they had done in that regard - See paragraphs 28 to 31.

Guardian and Ward - Topic 1345

Supervision of the guardian by the courts - Compensation of guardian - Entitlement to - [See first Guardian and Ward - Topic 1341 ].

Guardian and Ward - Topic 1345

Supervision of the guardian by the courts - Compensation of guardian - Entitlement to - The applicants were decision-makers for their son (Jeffrey), having been appointed as his personal and property guardians under the Adult Guardianship and Co-decision-making Act on December 6, 2005 - Jeffrey had suffered serious traumatic injuries in a motorcycle accident on September 4, 2004 - He was not at fault for the accident, which occurred just weeks before his 23rd birthday - He was severely incapacitated as a result of the injuries he suffered - The applicants applied under s. 51 of the Act to be compensated for their services as property guardians from December 6, 2005 to September 30, 2011 - Section 51 of the Act had been amended on October 1, 2011 - The Saskatchewan Court of Queen's Bench stated that, because of the nature and cause of Jeffrey's injuries and their lasting effects, guardianship of Jeffrey and management of his financial and property affairs became complex - "He had significant medical needs. A change in his living situation was necessary. He had transportation needs. There was litigation involving the claim with SGI [Saskatchewan Government Insurance]. All of these things took time, energy and care on the part of [the applicants]. It only seems fair that they should be compensated for taking on this role." - See paragraph 17.

Limitation of Actions - Topic 8

General principles - Interpretation of limitation provisions - [See first Guardian and Ward - Topic 1341 ].

Persons of Unsound Mind - Topic 793

Committees (incl. substitute decision maker) - Compensation - Considerations - [See all Guardian and Ward - Topic 1341 ].

Statutes - Topic 2272

Interpretation - Presumptions and rules in aid - Presumption against retrospective or retroactive operation - [See first Guardian and Ward - Topic 1341 ].

Statutes - Topic 6704

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Presumption against retrospectivity and retroactivity - [See first Guardian and Ward - Topic 1341 ].

Counsel:

Richard B. Morris, Q.C., for the applicants;

Carolyn R. Decker, for the respondent.

This application was heard by Kalmakoff, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following decision on August 11, 2015.