Court of Appeal for Ontario

Date: 20220401 Docket: C69038

Judges: Pardu, Paciocco and Thorburn JJ.A.

Between: Joy Overtveld, Todd Overtveld, and Gary Katz, in their capacity as attorneys for property for Gilles Jozias Overtveld and Joy Overtveld and Todd Overtveld in their capacity as attorneys for personal care for Gilles Jozias Overtveld Applicants (Respondents in Appeal)

And: Gilles Jozias Overtveld, The Office of the Public Guardian and Trustee, Enrique M. Jurado and Rachida Youmouri Respondents (Appellants)

Counsel: George F. Windsor, for the appellants Gilles Jozias Overtveld and Enrique M. Jurado Eric Lay, for the respondents Joy Overtveld, Todd Overtveld and Gary Katz Sarah Jones, for the Public Guardian and Trustee

Heard: March 24, 2022 by video conference

On appeal from the order of Justice Marc R. Labrosse of the Superior Court of Justice, dated December 7, 2020, with reasons reported at 2020 ONSC 6988.

Reasons for Decision

[1] The motion judge has been appointed to act as case management judge in this matter. The appellants, Mr. Enrique Jurado and Mr. Gilles Overtveld, appeal from his decisions made in that capacity on December 7, 2020. The underlying application is brought by Mr. Overtveld’s children in their capacity as his attorneys for property and personal care. They are pursuing a declaration that Mr. Overtveld is incapable of managing property or making personal care decisions.

[2] Multiple parties are involved:

• Mr. George Windsor, who is currently acting for Mr. Overtveld in the latter’s capacity as a shareholder of two companies;
• Ms. Rachida Youmouri, who married Mr. Overtveld in 2018;
• Mr. Jurado, Mr. Overtveld’s friend;
• Mr. Michael Rappaport, counsel for Mr. Jurado and Ms. Youmouri; and
• Ms. Miriam Vale Peters, Mr. Overtveld’s counsel of record.

[3] This court’s executive legal officer alerted the appellants to a concern that the orders from which they appeal were interlocutory, and that this court lacks jurisdiction to hear the appeals. Mr. Windsor maintains that the court should hear the appeals.

[4] We are satisfied that the orders appealed from are interlocutory and that this court does not have jurisdiction to hear the proposed appeal.

(i) Motion to find the respondents in contempt

[5] Mr. Windsor brought a motion asking the Superior Court of Justice to refuse to hear the respondents’ application based on his claim that the respondents are in contempt for failing to pay Mr. Overtveld’s expenses. Mr. Jurado brought motions for an order compelling examinations for discovery and for an order that the attorneys comply with the case management judge’s orders dated January 30, 2019 and January 9, 2020, which set out the procedure for discovery.

[6] The motion judge dealt with these motions together and dismissed the claim of contempt. With respect to expenses, he found that the underlying order for payment of expenses gave the attorneys discretion regarding payment. As for the examinations for discovery, the motion judge noted that the parties had just completed the filing of their materials and were early on in the litigation process. He also noted that none of the parties respected the timetable set out in the January 9, 2020 order.

[7] This court does not have jurisdiction over this order because it is interlocutory. Orders dismissing a contempt motion based on a failure to comply with the terms of an order are final where there are no ongoing proceedings and the party seeking the order has no other means of obtaining relief arising out of the failure to abide by the terms of the order: Chirico v. Szalas, 2016 ONCA 586, 132 O.R. (3d) 738; Simmonds v. Simmonds, 2013 ONCA 479, 117 O.R. (3d) 479. The motion judge’s contempt order does not fall into that category because the underlying proceedings are ongoing.

(ii) Motion to strike the application

[8] Mr. Windsor brought a motion to strike the application on the form of the pleadings on the basis that Mr. Overtveld was both the applicant and the respondent in the proceedings. The motion judge found that this argument “makes no sense”, since the attorneys were the applicants, and dismissed the motion. However, the parties agreed that the style of cause should refer to the attorneys “in their capacity as attorneys” rather than “in their capacity as powers of attorneys”, and the motion judge granted relief in the form of an amendment to the style of cause.

[9] This court does not have jurisdiction over this order because it is interlocutory. Orders dismissing a motion to strike out all or part of a pleading are interlocutory because they do not finally dispose of the rights of the parties: Hendrickson v. Kallio, [1932] O.R. 675.

(iii) Motion for an order that the respondents provide certain parties with access to Mr. Overtveld

[10] Mr. Windsor and Mr. Jurado brought motions to order the attorneys to provide Ms. Youmouri, Mr. Jurado, Mr. Windsor, and Mr. Rappaport with access to Mr. Overtveld. The motion judge dismissed the motion and found that no change to access was required pending the hearing of the application. He found that the rules set by the attorneys were reasonable, especially given various attempts by Mr. Windsor and others to have Mr. Overtveld sign documents going against the direction and interests of the attorneys.

[11] This court does not have jurisdiction over this order because it is interlocutory. The refusal to make changes to the terms of access to Mr. Overtveld pending the hearing of the application did not finally resolve issues at stake in these proceedings: Hendrickson.

(iv) Motion to have Ms. Vale Peters removed as counsel

[12] Mr. Windsor brought a motion for an order that Ms. Vale Peters cooperate with Mr. Windsor, and Mr. Jurado brought a motion seeking to have Ms. Vale Peters removed as counsel. The motion judge dismissed the motions. The motion judge commended Ms. Vale Peters’ work and noted that the Public Guardian and Trustee chose not to be involved or seek the appointment of section 3 counsel. He declined to have her removed as counsel of record.

[13] This court does not have jurisdiction over this order because it is interlocutory. Orders granting or dismissing a motion to remove or add solicitors of record are interlocutory: Aptowitzer v. Ontario (1995), 26 O.R. (2d) 254 (C.A.); Sun Life Assurance Co. v. York Ridge Developments Ltd. (1998), 116 O.A.C. 103 (C.A.), at para. 12.

(v) Motion for an order for payment of accounts submitted to the respondents

[14] Mr. Jurado brought a motion for an order for payment of the accounts submitted to the respondents by himself, Ms. Youmouri and Mr. Rappaport. The motion judge dismissed the motion, finding that he was not satisfied on the balance of probabilities that the attorneys failed to act in accordance with the statutory principles governing decision-making.

[15] This court does not have jurisdiction over this order because it is interlocutory. The motion judge’s refusal to order payment does not finally dispose of the rights of the parties because the attorneys asked for further information from the parties who submitted the accounts to determine whether payment could be made. Furthermore, the payments are collateral to the real dispute between the parties, which is the capacity application.

(vi) Additional motions

[16] The appellants did not object in the court below to the attorneys’ motions for a stay of other related proceedings pending the determination of the capacity application. The motion judge decided to stay applications relating to passing of accounts, annulment, oppression, defamation, assessment under the Solicitors Act, R.S.O. 1990, c. S.15 and a separation agreement claim. The motion judge dealt with the remainder of the parties’ motions by setting out a new timetable and ordering that the parties attend mediation. None of these orders finally resolved the issues in those proceedings.

[17] In their factum, the appellants ask for relief that goes well beyond the scope of the appeal of the December 7, 2020 order, including claims for final orders in a wide variety of proceedings and for decisions on the merits in the underlying proceeding, which is still ongoing. There is no basis upon which this court could entertain those requests.

[18] The appeal is therefore quashed, with costs payable by Mr. Jurado to the respondents Joy Overtveld, Todd Overtveld and Gary Katz in their capacity as attorneys fixed at $6,000.00 and to the Public Guardian and Trustee in the sum of $250.00.

“G. Pardu J.A.”

“David M. Paciocco J.A.”

“J.A. Thorburn J.A.”