COURT FILE NO.: CV-16-0781-00 DATE: 2017 06 12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Ernest Groh D. Loucks, Counsel for the Applicant Applicant

- and -

Doris Steele and Joan F. Wolfe, also known as Kitty Wolfe and Gabriella Grohotolski P.D. Stern for Doris Steele and Joan F. Wolfe D. Elliott for Gabriella Grohotolski Respondents

HEARD: April 11, 2017

REASONS FOR JUDGMENT

LEMAY J.

[1] Ernest Groh (“Ernest”) is the son of Gabriella Grohotolski (“Gabriella”) who is 81 years old. In 2015, she gave powers of attorney for property to Doris Steele (“Doris”) and Joan “Kitty” Wolfe (“Kitty”) (collectively “the Attorneys”). Ernest has brought an application asking for a capacity assessment of Gabriella under the Substitute Decisions Act, 1992, S.O. 1992 c. 30 (“SDA”), as well as asking for the suspension of the Attorneys’ authority to act, and for the Attorneys to pass their accounts. Ernest asserts that the Attorneys are mismanaging Gabriella’s affairs.

[2] This application is opposed by both Gabriella and by the Attorneys on the basis that the evidence establishes that Gabriella has capacity to make decisions, and that the ordering of an assessment is an intrusive remedy that should not be ordered in this case. Both Gabriella and the Attorneys, who were represented separately, assert that the Attorneys are properly managing Gabriella’s affairs.

[3] For the reasons that follow, Ernest’s application is dismissed.

Background

a) The Parties

[4] Gabriella Grohotolski and her husband, Siegmund Grohotolski, immigrated to Canada in 1960. Gabriella is currently 81 years old. In her examination, Gabriella confirmed that her first name ends in an “a” rather than an “e”. I have not fixed the style of cause on this decision, as none of the parties have moved to fix this error. However, I will refer to Ms. Grohotolski as Gabriella throughout these reasons.

[5] Ernest Groh is their only son. After moving to Canada, Gabriella and Siegmund purchased the Halton Motel. They ran the business, and Ernest assisted them when he finished his schooling.

[6] In addition to this business, Siegmund also established a small trucking business in the early 1980s that hauled gravel. Companies were established to run both businesses. SEG Management was the company for the hotel business, and SG Trucking was the company for the trucking business. Siegmund got out of the trucking business in the late 1990s.

[7] The bookkeeping work for the businesses has been done for the past thirty years by the Respondent Kitty Wolfe.

[8] Ernest and his parents lived in a bungalow on the Halton Motel property from the time they purchased the property up until 2015. It was a three bedroom bungalow, and one of the bedrooms was used as the office for the business.

[9] Ernest and the Respondent Doris Steele have a son, Michael, who is currently fifteen (15) years old. Ernest and Doris started a relationship in the mid-1990s, and cohabited together from 1995 to 2003 in the bungalow where Ernest lived with his parents.

b) The Events of 2014-2016

[10] In September of 2014, Gabriella suffered a fall and had to be taken to hospital. She spent a couple of months in the hospital, and was discharged to a rehabilitation hospital in November of 2014. She was then transferred to a retirement home in January of 2015. In the summer of 2015, she moved into a home in Mississauga where she currently lives with Doris and her grandson, Michael.

[11] Siegmund was also hospitalized in 2014, but returned home in November of 2014. Siegmund passed away in early December of 2014.

[12] In this time period, Ernest was living in the basement of the bungalow and was not addressing the mail or other issues that needed to be resolved relating to the business. Between September of 2014 and mid-2015, Ernest did not visit Gabriella at all, claiming that he was suffering from a combination of grief and back problems.

[13] On March 13th, 2015, Gabriella signed a Continuing Power of Attorney for Property, appointing Doris Steele as her attorney for Property. On October 6th, 2015, Gabriella signed a Continuing Power of Attorney for Property appointing Doris Steele and Joan F. Wolfe, jointly and severally, as her attorneys for property.

c) The Litigation History

[14] This application was started by Ernest on February 18th, 2016, and was originally returnable on March 18th, 2016. There were some disagreements between the parties as to the scope of the cross-examination of Gabriella that Ernest’s counsel was entitled to conduct. As a result, the parties came before André J., who provided them with directions.

[15] The matter came before me in December of 2016. After argument commenced on that day, it was clear to me that the scope of André J.’s directions had not been fully appreciated by counsel, particularly counsel for the Applicant. As a result, I adjourned this matter for further cross-examination of Gabriella. The matter returned before me for argument on April 11th, 2017.

[16] I also understand that there are two other actions currently before the Superior Court that have been brought on related facts. Both actions relate to claims that Ernest is advancing against the Attorneys and against Gabriella for conversion of property that he alleges is his. In addition, on the basis of the information that I was given about the corporate structure, there may also be claims made about the management of the affairs of the corporations. However, those are not issues relating to this application, and I decline to consider them except to the extent that they relate to the question of whether the Attorneys are administering Gabriella’s affairs in her interest.

[17] Gabriella retained separate counsel for this application, Mr. Douglas Elliott and Ms. Elena Mamay. As part of this application, Ernest brought a motion before Baltman J. in September of 2016, seeking the removal of Mr. Elliott from the record and the appointment of the Public Guardian and Trustee as Gabriella’s representative. This motion was based on Ernest’s claim that Gabriella did not have the capacity to appoint counsel.

[18] In dismissing the motion, Baltman J. stated:

3. The context of this motion is important. It has been brought in advance of an application scheduled to be heard on December 14, 2016, in which the App seeks to terminate the powers of attorney from the property currently held by Steele and Wolfe on the basis that they allegedly have been negligent in their handling of Ella’s finances.

4. In my view, this motion is a collateral attack brought in advance of the main battle. Moreover, it has little if any merit. The courts rarely interfere with a litigant’s right to choose their own counsel: Berman v Shwartz, 2012 ONSC 6851, para 33; Calvert v Calvert, 32 OR (3d) 281, para 9. There is a heavy onus on the moving party and the evidence here fails very short of that evidentiary burden. It rests primarily on the affidavit of Anna Zullo [sic], a hairdresser who saw Ella on a weekly basis and was essentially recruited by the son to extract information that might advance his case. Moreover, Ms. Zullo’s [sic] conclusion that Ella could not identify her lawyer was seriously undermined in cross-examination.

5. Importantly, the App’s assertion is flatly disputed by an expert Ms. Coco Johnson, who is a qualified capacity assessor and who determined that Ella does have due capacity to instruct counsel. Their conclusions have not been seriously undermined by any other evidence.

[19] Gabriella’s counsel now argues that the whole issue of capacity is res judicata on the basis of Baltman J.’s endorsement. In my view, Baltman J. did not intend to deal with the merits of the motion before me. In addition, she did not have the advantage of the detailed cross-examinations that were conducted after September of 2016. She simply observed that the motion to remove Mr. Elliott was a collateral attack on the main motion, and noted that the positions being taken by Ernest were hard to reconcile.

[20] I do not see a final conclusion on any of the issues that I am required to address in the endorsement of Baltman J. As a result, I am not applying the principle of res judicata to the issues before the Court. Instead, I will address them on their merits.

Issues on the Application

[21] This application raises two issues that must be addressed:

a) Are there reasonable grounds for the Court to believe that Gabriella is incapable within the meaning of s. 79 of the SDA?

b) Should Ernest be given leave to ask the Attorneys to pass the accounts, and should the Attorneys’ authority to manage Gabriella’s affairs be suspended?

[22] I will address each of those issues in turn.

[23] At the outset, however, I should note that Ernest is not challenging the capacity of Gabriella to provide the original Powers of Attorney to Kitty and Doris. I note that this failure to challenge the original Powers of Attorney suggests that there was no issue about Gabriella’s capacity to sign these documents, and I heard no argument about this issue.

Issue #1 - Do Reasonable Grounds Exist to Believe that Gabriella is not Capable?

[24] A consideration of this issue requires me to look at both the legal principles that apply and the evidence that has been presented on the motion.

a) Legal Principles

[25] Section 79 of the SDA permits the Court to order an assessment where a person’s capacity is an issue in a proceeding, and the Court has reasonable grounds to believe that the person is incapable.

[26] However, as Strathy J. (as he then was) noted in Abrams v. Abrams, [2008] O.J. No. 5207, at paras. 50 and 51:

50. In considering whether to order an assessment, whether on motion or on its own initiative, a court must balance the affected party’s fundamental rights against the court’s duty to protect the vulnerable. The appointment of an assessor to conduct what is essentially a psychiatric examination is a substantial invention into the privacy and security of the individual. As Mr. Justice Pattillo said in Fynn et al. v. Fynn (December 18, 2007), unreported, Ont. S.C.J., Court file no. 03-66/07: “[a] capacity assessment is an intrusive and demanding process.”

51. There is little authority to guide me on the circumstances in which the court should order a further assessment where, as here, the individuals have voluntarily submitted to assessments by a qualified assessor. In Forgione v. Forgione, [2007] O.J. No. 2006 (S.C.J), a second assessment was ordered where the first assessment had not been carried out by a qualified capacity assessor and the report that had been prepared was not in accordance with the Guidelines for Conducting Assessments of Capacity. There were, as well, serious questions about the capacity and vulnerability of the person to be assessed, none of which had been mentioned in the earlier report.

[27] This passage illustrates that there is a balancing of interests that must take place prior to the appointment of an assessor. It is a question of fact in each individual case, and I turn now to the relevant facts before me.

b) The Facts of This Case

[28] The most relevant fact before me is the fact that a capacity assessment has already been done in this case. In response to this Application, Gabriella’s counsel appointed Ms. Coco Johnson as an assessor and requested that Ms. Johnson provide a capacity assessment of Gabriella. Ms. Johnson is a capacity assessor under the “SDA” and is authorized to perform assessments of mental capacity for personal care and financial decision-making. The existence of this assessment provides me with a starting point for my review of the evidence as a whole.

[29] As part of the evidence on this Application, I received a number of reports from Ms. Johnson. She was also cross-examined on the reports that Gabriella’s counsel asserted were relevant to these proceedings.

[30] Ms. Johnson met with Gabriella for two hours to perform this capacity assessment in March of 2016. I was provided with a number of different letters relating to Gabriella’s capacity to instruct counsel, to manage her financial affairs and her testamentary capacity. In the circumstances, I have focused on Gabriella’s capacity to manage her financial affairs.

[31] Ms. Johnson concluded that Gabriella had the ability to understand and appreciate the information needed to manage her financial affairs, she was aware of the facts underlying her financial affairs. In addition, although Gabriella had difficulties performing arithmetic, she was aware that this was (and had always been) a difficulty for her, and Gabriella knew that she needed to obtain help to ensure that this deficit did not interfere with her ability to make sound financial decisions.

[32] Ernest attacks Ms. Johnson’s assessment on the basis that it is not properly in the form of a report under the SDA, and that Ms. Johnson has not filed an Expert’s Acknowledgement of Duty form under Rule 53 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. As a result, Ernest submits that I should only consider Ms. Johnson’s report for the facts set out in it, and that those facts provide reason to believe that Gabriella is incapable at the present time.

[33] The evidence that Ernest points to in this regard is as follows:

a) Ms. Johnson’s notes (rather than her report) indicate that Gabriella thought that one of the Ferraris had been sold for $500.00, rather than the $250,000.00 it had actually been sold for.

b) Ms. Johnson’s notes also showed that Gabriella was wrong about the details on the mortgage on the house she was currently living in. Specifically, Gabriella had the mortgage rate and the amount of the mortgage wrong.

c) Ms. Johnson’s report stated that a neuropsychologist participated in the assessment, but that there was no report or commentary from this person.

[34] Ernest goes on to say that this evidence, together with his evidence that his mother had no experience with banking, investing or otherwise handling money, makes her a vulnerable person whose capacity ought to concern the Court. I disagree.

[35] First, there is Ernest’s evidence. In his sworn Affidavit, Ernest stated that “[Doris] Steele and I have never cohabited.” On his cross-examination, he conceded that he and Doris had lived together, and shared a bedroom together in his parents’ bungalow, for eight years. When asked to explain this discrepancy, Ernest stated that what he meant by this statement was that he and Doris “never cohabited on our own. I didn’t classify it as cohabiting, living with my parents in the house.”

[36] The most positive spin that could be put on this evidence is that Ernest was not telling the complete truth in his sworn Affidavit. There are other examples of Ernest’s tendency to omit facts, such as his assertions that the Attorneys were preventing contact with Gabriella. When confronted about this in cross-examination, Ernest admitted that it was possible that they had been encouraging him to visit Gabriella, particularly in late 2014 and early 2015 when she was in the hospital.

[37] In the result, I am not prepared to give any weight to Ernest’s assertions that Gabriella is a vulnerable person as his evidence is not reliable.

[38] This brings me to the evidence from Gabriella herself. In addition to a sworn Affidavit, I had three days of transcripts from the cross-examination of Gabriella. In total, the amount of time spent on cross-examining Gabriella appears to be close to, if not more than, three hours. I have reviewed all of the answers that Gabriella gave at those examinations along with her Affidavit.

[39] My review discloses the following material facts:

a) Gabriella was upset with Ernest for not having visited her when she was in the hospital and in the retirement home.

b) Gabriella was well aware of the problems that Ernest was having in responding to mail and in taking care of the property in early 2015.

c) Gabriella was well aware of her financial circumstances. She could outline her investments, knew generally who her investment advisors were, and understood the risks of various investments.

d) Gabriella is particularly attached to her grandson, Michael, who she refers to as a “good boy” who “gives back.”

[40] This review of the evidence given by Gabriella needs to be considered against the concerns that Ernest has raised about Ms. Johnson’s assessment. When I review those concerns, I note that Gabriella may have had some difficulties recalling the details of certain transactions. However, it is clear that she was both well aware of, and content with, the approach being taken to manage her money. The fact that she got some details wrong is not sufficient grounds for questioning her capacity, especially in light of the fact that English is not Gabriella’s first language.

[41] When I consider the answers that Gabriella gave on cross-examination together with Ms. Johnson’s conclusions, I come to the following conclusions:

a) Gabriella was well aware of her financial circumstances. For example, she was aware of the price that the Halton Motel was being sold for, as well as the Ferraris and other business affairs, such as property taxes and banking arrangements.

b) Gabriella was well aware of the role of her Attorneys for Property, and was consulted by them on transactions.

c) Gabriella was content with the way that her Attorneys for Property were managing her affairs.

[42] I am also struck by the timing of when Gabriella chose to sign the authorizations for her Attorneys. They were signed in the spring and fall of 2015, after it was clear that Ernest was not prepared to visit Gabriella and was not managing the affairs of the hotel. This supports the view that Gabriella was reasonably managing her affairs and knew that she needed some assistance. When her son was not prepared to assist her, she turned to two other people that she had known for a long time, had trusted, and had reason to trust.

[43] In my view, there are no reasonable grounds before the Court to believe that Gabriella is incapable. Indeed, the evidence before the Court suggests that Gabriella is well aware of what is going on, and has adopted a reasoned position as to how she wishes to manage her affairs.

[44] I am also going to briefly comment on Ernest’s assertion (at paragraph 53 of his factum) that, if Gabriella was prepared to consent to be assessed by Ms. Johnson, there was no explanation as to why she was not prepared to simply agree to the assessment Order that Ernest was seeking in this application.

[45] With respect, I can see at least one reason why Gabriella would have been prepared to be assessed by Ms. Johnson, but would not have been prepared to consent to an Order. The only basis on which the Court can order an assessment is if there are reasonable grounds to believe that Gabriella is incapable, and a consent Order would imply agreement with Ernest’s assertion in this regard. Gabriella has disagreed with this assertion throughout this litigation, and it would be entirely reasonable to obtain an assessment to counter Ernest’s position that she is incapable, rather than submitting to an assessment at his behest and conceding his position.

[46] Finally, I note again that there was no challenge to the original Powers of Attorney that were signed. I view that as an acknowledgement by all sides that Gabriella had the capacity to provide those Powers of Attorney when they were originally signed.

[47] In the result, I am of the view that there is no reasonable basis to question Gabriella’s competency to manage her financial affairs, and I decline to order an assessment under s. 79 of the SDA.

Issue #2 - Should the Authority of the Attorneys be Suspended?

[48] Ernest is asking for two forms of relief. First, he is asking that the Court suspend Doris and Kitty’s authority to act under Gabriella’s Powers of Attorney that appointed them. Second, he is asking for leave of the Court to have the Attorneys pass their accounts. In support of this relief, Ernest asserts that the Attorneys are not properly managing Gabriella’s estate.

[49] Gabriella asserts that it is her money, and that it is open for her to do as she wishes with her money. The Attorneys argue that by seeking a passing of accounts, Ernest is seeking an intrusive examination of the minutiae of his mother’s financial affairs, which is something that he is not entitled to.

[50] All of the Respondents assert that Gabriella is perfectly capable of managing her affairs, that everything the Attorneys have done is reasonable, and that what Ernest really wants out of this proceeding is control over his mother’s money.

a) The Legal Principles

[51] The principles governing powers of attorney are set out in the SDA. Section 42 of that SDA sets out the process for a passing of accounts:

42. (1) The court may, on application, order that all or a specified part of the accounts of an attorney or guardian of property be passed. 1992, c. 30, s. 42 (1).

Attorney’s accounts

(2) An attorney, the grantor or any of the persons listed in subsection (4) may apply to pass the attorney’s accounts. 1992, c. 30, s. 42 (2).

Guardian’s accounts

(3) A guardian of property, the incapable person or any of the persons listed in subsection (4) may apply to pass the accounts of the guardian of property. 1992, c. 30, s. 42 (3).

Others entitled to apply

(4) The following persons may also apply:

1. The grantor’s or incapable person’s guardian of the person or attorney for personal care.

2. A dependant of the grantor or incapable person.

3. The Public Guardian and Trustee.

4. The Children’s Lawyer.

5. A judgment creditor of the grantor or incapable person.

6. Any other person, with leave of the court. 1992, c. 30, s. 42 (4); 1994, c. 27, s. 43 (2).

P.G.T. a party

(5) If the Public Guardian and Trustee is the applicant or the respondent, the court shall grant the application, unless it is satisfied that the application is frivolous or vexatious. 1992, c. 30, s. 42 (5).

Filing of accounts

(6) The accounts shall be filed in the court office and the procedure in the passing of the accounts is the same and has the same effect as in the passing of executors’ and administrators’ accounts. 1992, c. 30, s. 42 (6).

Powers of court

(7) In an application for the passing of an attorney’s accounts the court may, on motion or on its own initiative,

(a) direct the Public Guardian and Trustee to bring an application for guardianship of property;

(b) suspend the power of attorney pending the determination of the application;

(c) appoint the Public Guardian and Trustee or another person to act as guardian of property pending the determination of the application;

(d) order an assessment of the grantor of the power of attorney under section 79 to determine his or her capacity; or

(e) order that the power of attorney be terminated. 1992, c. 30, s. 42 (7).

Same

(8) In an application for the passing of the accounts of a guardian of property the court may, on motion or on its own initiative,

(a) adjust the guardian’s compensation in accordance with the value of the services performed;

(b) suspend the guardianship pending the determination of the application;

(c) appoint the Public Guardian and Trustee or another person to act as guardian of property pending the determination of the application; or

(d) order that the guardianship be terminated. 1992, c. 30, s. 42 (8).

[52] In reviewing this section, it is clear that the only circumstances in which Ernest could ask for a passing of accounts is if he can obtain leave of the Court. He is not alleging that he is one of Gabriella’s dependants, and he does not fit any of the other categories of persons in s. 42(4). I was not provided with any case law on the question of when the Court will grant leave for a third party to apply for a passing of accounts.

[53] In my view, such leave should be granted sparingly. The passing of accounts is a detailed review of the financial affairs of the grantor. As such, it is something that is intrusive, and will reveal private financial information about the grantor. In order to obtain leave, the party applying would have to establish both that he or she had some interest (at least indirectly) in the affairs of the grantor, and that there was at least some evidence that the Attorneys were not properly conducting the affairs of the donor. The Court should also consider the role that the Attorneys are playing in the Grantor’s affairs.

[54] In terms of the removal of an Attorney for Property, the case law establishes that “there must be strong and compelling evidence of misconduct or neglect on the part of the attorney” before the Court should ignore the wishes of the donor who gave the Attorney his or her power: see In the Matter of the Estate of Johanna Maria Schaefers, Incapable, Teffer et al. v. Schaefers et al (2008), 93 O.R. (3d) 447 at para. 24. The Court will also look to the question of whether the Attorneys are managing the affairs of the donor properly.

[55] The most important issue that emerges from this summary of the law is whether there is any evidence before the Court that the Attorneys are not managing Gabriella’s affairs properly. I turn to that question now.

b) Are the Attorneys Properly Managing Gabriella’s Affairs?

[56] In support of his assertion that Doris and Kitty are not properly managing his affairs, Ernest relies on the following;

a) The sale of the motel property.

b) The fact that a home in Mississauga was jointly owned by Gabriella and Doris.

c) The liquidation of a series of assets.

[57] I will review each of these transactions in turn.

The Sale of the Motel

[58] Ernest asserts that the hotel was precipitously sold for far less than it was worth. The hotel was listed for $3,999,000.00 and sold for $500,000.00 less than that amount. In addition, Gabriella had to take back a mortgage on this property.

[59] Ernest asserts that the hotel was worth $7,500,000.00, or even more. In support of this, he stated that he had an “appraisal” of the hotel, and that this “appraisal” had been stolen out of the hotel records by Kitty and Doris. When this document was actually obtained, it was clear that it was a listing proposal from a real estate company to try and get the listing for the property, and had no value as an appraisal.

[60] I draw two key points from this evidence. First, this is another example of Ernest’s tendencies to overstate the facts. Second, I am not prepared to rely on this listing agreement as an indication that the hotel property was undervalued, particularly when the property was publicly listed and sold to a third party.

[61] I also note that Ernest has raised issues about the fact that the vendor take-back mortgage was supposed to be the only mortgage on the property, and that another one had been added by the vendors. Ernest asserts that the existence of this second mortgage demonstrates both that Gabriella is incapable of managing her affairs, and that the Attorneys are not properly managing them on her behalf. I disagree for two reasons. Neither the Attorneys nor Gabriella would be expected to check the parcel register on a regular basis. Furthermore, it appears to me that the second mortgage ranks behind the vendor take-back mortgage in priority. As a result, I am not sure that Gabriella’s financial position has been prejudiced in a significant way by this second mortgage.

The Joint Ownership of a Residential Property

[62] At the time that Ernest commenced his application, Gabriella and Doris were registered as the joint owners of a residence located in Mississauga. The purchase price was $820,000.00. At the time that it was purchased, a mortgage for the amount of the purchase price was placed on the home.

[63] Subsequently, the ownership was changed to be solely in Gabriella’s name, and the mortgage was paid off. There was no consideration for the transfer of the home to solely Gabriella’s name, save and except a nominal $2.00 amount.

[64] Based on these facts, Ernest asserts that this transaction has not been explained, it put Steele in a blatant conflict of interest and that it is “quite possible that Steele has otherwise secured an interest in [this] property by causing Gabrielle [sic] to devise it to her by Will.”

[65] However, in her cross-examination, Gabriella confirmed that the house had been transferred to her name solely. She also stated that the reason that both her and Doris were originally on title was for the purposes of obtaining the mortgage. The mortgage was paid off from the proceeds of the sale of the hotel, and at that time Doris was removed from title.

[66] I was provided with evidence of an Alter Ego Trust for Gabriella that she has placed the house into. The Trust provides rights for both her grandson Michael and for Ernest once Gabriella dies. Finally, it is also worth noting that Gabriella wants to live with her grandson and his mother, so they all live in the property together.

[67] When all of these facts are considered, I do not view this transaction relating to the transfer of the home as disclosing anything particularly troubling, for three reasons. First, it is in accordance with Gabriella’s wishes that, on the record before me, she appears to have arrived at freely. Second, the details of the transaction have been made clear to the Court and the transaction does not raise any concern or suspicion. Third, in the circumstances facing Gabriella, this transaction makes eminent sense. Rather than being in a retirement home on her own, she is with family and people she trusts who are caring for her.

The Disposition of Other Property

[68] In his factum, Ernest provides a long list of property that he says was precipitously liquidated to the benefit of no one but Doris. In addition, he states that some of this property belonged to SG Trucking and SEG Management, and should not have been treated as Gabriella’s property.

[69] I reject both of these claims. First, with respect to the liquidation of assets, it does not seem unreasonable to me that an eighty-one year old widow would want most of her assets in cash rather than in chattels such as gold bars, Ferraris and paintings. The consolidation of these assets does not appear to me to be an unreasonable step for the Attorneys to take. There are no facts to support Ernest’s assertion that the liquidation of these assets serves the interests of no one but Doris.

[70] Second, if Ernest has a dispute that the Attorneys are liquidating corporate assets and that he is entitled to a share in these assets by way of an ownership interest in the companies, then the proper way to bring that issue before the Court is to sue the companies and the Attorneys. If Gabriella is asserting ownership over those chattels, then her Attorneys are not acting contrary to her interests by realizing on those chattels. The Attorneys have no obligation to protect either Ernest’s interests or those of the companies.

c) Conclusions

[71] In my view, there is no evidence before the Court that the Attorneys are improperly managing Gabriella’s affairs. The issues that Ernest has raised are either unsubstantiated or relate to claims that he would have against Gabriella, SEG Management or SG Trucking.

[72] The fact that Ernest does not agree with the manner in which the Attorneys are conducting Gabriella’s affairs does not mean that they are conducting those affairs improperly.

[73] I should address one of the points that Ernest advanced both in his factum and through oral argument. He asserted that neither Kitty nor Doris provided an Affidavit in this case, and that I should be concerned about this omission. Normally, the absence of responding materials from the Attorneys would be of concern to me. However, I acknowledge the concern expressed by all of the Responding counsel that Affidavits from Kitty and Doris would have resulted in detailed and extensive cross-examinations, which would normally not be a concern. However, cross-examination of Doris and Kitty on any Affidavits that they might have presented could very well have resulted in a complete review of the manner in which Kitty and Doris had conducted Gabriella’s affairs. In other words, the cross-examination could have been used to obtain, indirectly, a passing of accounts. In these unique circumstances, I am not prepared to draw any adverse inferences from the failure of Kitty and Doris to provide an Affidavit in this proceeding.

[74] It is also clear that Gabriella has appointed counsel, and that the appointment of counsel has been upheld by this Court. The presence of separate counsel on this application allowed Gabriella’s position to be advanced separately from that of the Attorneys. In addition to confirming the fact that Gabriella has the capacity to appoint counsel, it also confirms that her interests are also being heard by the Court and it gives the Court more assurance that her rights are being protected.

[75] For these reasons, I find that there is no evidence that the Attorneys are improperly managing Gabriella’s affairs. As a result, there is no basis to suspend their authority to do so.

[76] This brings me to the question of whether a passing of accounts should be ordered in this case. I conclude that one should not be ordered in this case. Gabriella has the capacity to manage her financial affairs. In addition, she has made it clear that she is happy with the management of her affairs by the Attorneys, and she does not wish to have any changes made to their authority.

[77] There is a final issue that should be addressed. Ernest argues that the Attorneys have an obligation to consult with him under s. 32(5)(a) of the SDA. This section provides for consultation with “supportive family members … who are in regular contact with the incapable person.”

[78] I am of the view that Ernest cannot rely upon this section for two reasons. First, he was not in regular contact with Gabriella in the six months prior to the appointment of the Attorneys. Second, he has been engaged in litigation with Gabriella and with the Attorneys for more than a year. In the circumstances, I do not view this as being “supportive.”

[79] In the end, I see no basis for a passing of accounts in this case, and I decline to order one.

Disposition

[80] For the foregoing reasons, Ernest’s application in relation to his mother’s powers of attorney is dismissed. This is without prejudice to the other claims that he has brought against the Attorneys and/or his mother in his personal capacity. For example, nothing in my reasons disposes of the issues relating to the Ferrari that Ernest claims that he owns.

[81] Counsel for Gabriella has asked that I be appointed the case management judge in this matter. I am not prepared to do so for two reasons. First, the authority to appoint a case management judge rests with R.S.J. Daley. Second, the dismissal of this action provides the parties with the opportunity to consider whether the remaining issues are complex or contentious enough to require a case management judge. In making that request, they should set out their reasons for seeking case-management.

[82] If one or more of the parties believe that a case management judge is still appropriate to manage the issues remaining before the Court, then the parties are free to write to R.S.J. Daley to request the appointment of a case management judge.

[83] This brings me to the subject of costs. The submissions of the Attorneys and of Gabriella on costs are due fourteen (14) days from the release of these reasons. They are not to exceed three (3) single-spaced pages, exclusive of bills of cost, offers to settle and case-law.

[84] The submissions of Ernest on costs are due fourteen (14) days from the receipt of the submissions from Gabriella and the Attorneys. They are also not to exceed three (3) single-spaced pages, exclusive of bills of cost, offers to settle and case-law.

[85] There will be no reply submissions on costs without my leave.

LEMAY J. Released: June 12, 2017