Public Guardian and Trustee v. Dhuruvasangary, 2024 ONCA 289

Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240417 DOCKET: COA-22-CV-0075

van Rensburg, Zarnett and George JJ.A.

BETWEEN

The Public Guardian and Trustee Applicant/Respondent in Appeal

and

Logaranee Dhuruvasangary and Thanuja Dhuruvasangary Respondents/Appellant in Appeal

Counsel: Romesh Hettiarachchi, for the appellant Sarah Jones, for the respondent

Heard and released orally: April 12, 2024

On appeal from the order of Justice Dietrich of the Superior Court of Justice, dated August 12, 2022.

Reasons for Decision

[1]

Overview

The appellant, Thanuja Dhuruvasangary, appeals her removal as attorney for property for her mother, Logaranee Dhuruvasangary (“Logaranee”), and the appointment of the Public Guardian and Trustee (“PGT”) as Logaranee’s guardian of property. The appellant argues that the application judge erred, 1) by refusing to adjourn the hearing of the application so that she could retain new counsel after her initial counsel was removed from the record, 2) by failing to apply the relevant test, and by reversing the burden of proof in an application to terminate a continuing power of attorney, and 3) by concluding that there was sufficiently strong and compelling evidence of misconduct or neglect to justify terminating the power of attorney.

2Logaranee is a vulnerable person whose assets had been managed by the appellant at the time the PGT brought this application. The application judge found that, during her time as attorney for property, the appellant neglected to pay Logaranee’s long-term care accommodation fees, failed to reduce Logaranee’s substantial debt, and had in fact caused her debt to increase by withdrawing significant funds from their joint line of credit.

[3]

Adjournment Request

With respect to the appellant’s adjournment request, we observe that counsel had served and filed materials on the appellant’s behalf, including an application record and factum, that the appellant had counsel throughout most of the application process, and that the hearing had been marked peremptory on the appellant. Given that, and in light of Logaranee’s vulnerable state, it was reasonable for the application judge to conclude that this matter needed to be heard and disposed of on an urgent basis, notwithstanding the factors that might have weighed in favour of an adjournment. As the application judge concluded, the evidence of misconduct and neglect on the appellant’s part was “overwhelming” and Logaranee’s financial troubles were being exacerbated by the appellant’s continued actions. We see no basis on which to interfere with the application judge’s decision to deny the adjournment request.

[4]

Analysis

While not specifically cited, the application judge's reasons demonstrate that she understood, and properly applied, the two-part test for terminating a power of attorney, namely, whether there is strong and compelling evidence of misconduct or neglect and whether the attorney is serving the incapable person’s best interests. The application judge found that Logaranee owed a substantial amount in long-term care arrears. We do not accept the appellant’s argument that anything turns on the precise amount of the arrears as the appellant concedes no payments were made for a period of approximately four years. She also found that, while eligible, the appellant had not applied for or obtained income on Logaranee’s behalf from CPP, OAS, or any other public or private pension; that Logaranee’s personal debts were significant; and, although the appellant was using the joint line of credit to pay the mortgage, there was no evidence that this was to Logaranee’s benefit.

5The application judge considered the appellant’s submission that she had attempted to apply for income for her mother, but found there was nothing to substantiate the appellant’s claim other than one unsigned application form. She also considered the appellant’s contention that, because of her mental health issues, she was unable to properly tend to her mother’s affairs for a period of time, but that she is better and will now be able to do so. As the appellant presented no evidence to support her claim that she was struggling with mental health issues, or what impact it had on her ability to manage her mother’s property, the application judge’s decision to not place much weight on these submissions is reasonable. And, by simply pointing out that the appellant did not sufficiently explain the impact of her mental illness, was unable to provide a satisfactory explanation for not securing income for her mother, and that she failed to pay for her basic needs, the application judge did not reverse the burden of proof.

6Given the application judge’s findings, she reasonably concluded that the power of attorney had to be terminated.

[7]

Disposition

For these reasons the appeal is dismissed.

[8]

Costs

Costs are payable by the appellant to the PGT in the amount of $3,000, plus HST.