Court File and Parties
COURT FILE NO.: CV-21-00668457-00ES DATE: 20231006
ONTARIO SUPERIOR COURT OF JUSTICE (Estates List)
IN THE MATTER OF THE Estate of PAUL HADDAD, deceased
BETWEEN:
ROYAL TRUST CORPORATION OF CANADA, in its capacity as the Estate Trustee of the Estate of Paul Haddad Applicant
AND:
RAYMONDE HADDAD, DORIS HADDAD-BEJJANI, ROSEMARY WHELAN, VERONICA NEWBURY, AMANDA BEJJANI, GABRIELLE WHELAN, ISAAC WHELAN, THE CHILDREN’S LAWYER on behalf of JUSTIN BEJJANI AND THE UNBORN AND UNASCERTAINED ISSUE OF RAYMONDE HADDAD, DORIS HADDAD-BEJJANI AND ROSEMARY WHELAN Respondents
BEFORE: Justice A.A. Sanfilippo
COUNSEL: David M. Lobl and Irina Samborski, for the Moving Party Applicant Natalie Scott, for the Respondent, Rosemary Whelan Debra Stephens and Amanda Bettencourt, agent lawyers for the Children’s Lawyer Doris Haddad-Bejjani, acting in person Stephen Cavanagh, for the Estate of Paul Dancause in related action
HEARD (By video conference): September 15, 2023
Endorsement
[1] Paul Haddad died on February 22, 2016 (the “Deceased”). He left a Primary Will, which was probated, and a Limited Property Will, which was not probated. On June 27, 2016, Royal Trust Corporation of Canada (“Royal Trust”) was appointed as Estate Trustee of the Estate of Paul Haddad, for both Wills.
[2] The Deceased was survived by his mother, Raymonde Haddad, and his two sisters, Doris Haddad-Bejjani and Rosemary Whelan. Royal Trust submitted that the Wills provide monetary bequests to the Deceased’s friends and relatives, and directs the Estate Trustee to divide the residue of the Deceased’s Estate into three equal shares, with each share to be settled in trust for each of Raymonde, Rosemary, and Doris, [1] who I will refer to collectively as the “Beneficiaries”. On the death of each Beneficiary, there is a gift over to her issue then living, in equal shares per stirpes, and if no issue are living, then to each Beneficiary’s estate.
[3] On December 21, 2018, the Estate Trustee commenced an Application to Pass Accounts in court file number CV-18-00002149-00ES for the period from February 22, 2016 to November 2, 2018, (the “Passing Application”). On April 24, 2020, Doris, acting in person, informed all counsel that she was purporting to represent Raymonde under a Continuing Power of Attorney for Property granted in Doris’ favour and executed by Raymonde on October 23, 1998 (the “CPOAP”). Raymonde would later have a stroke on June 22, 2021, and was moved into a long-term care facility in Ottawa in August 2021, where she continues to reside.
[4] On September 9, 2021, the Estate Trustee brought this Application for Directions, in court file number CV-21-00668457-00ES (the “Interpretation Application”) seeking directions as to whether certain assets of the Estate, being a condominium located in the Philippines (the “Condo”) and a timeshare property located in Florida (the “Timeshare Property”), are to be distributed on intestacy, or whether they should be added to the residue of the Estate and distributed in accordance with the Wills. The Estate Trustee submitted that it is not clear whether the Condo and the Timeshare Property (referred to collectively as the “Assets”) are to be dealt with as part of the Primary Estate, the Secondary Estate or pursuant to the principles of intestate succession.
[5] The Interpretation Application was served by the Estate Trustee on all sui juris beneficiaries and contingent beneficiaries, including those who are represented by the Office of the Children’s Lawyer (the “OCL”). Consistent with Doris’ notification that she was acting as attorney for Raymonde in a representative capacity under the CPOAP, Raymonde was served by sending the Interpretation Application record to Doris as Raymonde’s attorney.
[6] Doris purported to protect and advance Raymonde’s interests in the Interpretation Application and the Passing Application as per the rights conferred to her in the CPOAP. Even presuming that the CPOAP provided Doris with this entitlement, and presuming that Raymonde is incapable, a party to a proceeding who is under disability or who acts in a representative capacity shall be represented by a lawyer. [2]
[7] In an Endorsement issued May 29, 2023, at paragraph 4(d), I scheduled a Motion for the Estate Trustee to seek directions regarding the Condo, to be heard on October 23, 2023. The Estate Trustee has now determined that the directions sought regarding the Condo are properly the subject matter of an Application for Directions under Rule 14.05(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rather than a Motion for Directions under Rule 75.06. I grant leave for the Estate Trustee to bring an Application for Directions in the place of the Motion for Directions. The Estate Trustee has committed to the imminent issuance of this Application for Directions (the “Application for Directions”).
[8] Royal Trust, supported by Rosemary and the Children’s Lawyer, submit that the litigation arising from the Estate of Paul Haddad has been delayed because of the issue of Raymonde’s capacity and her representation in these proceedings. Raymonde is alleged to be a party under disability who is not being sued through a Litigation Guardian and whose representation in these proceedings is being addressed by a non-lawyer, Doris, on the basis of the CPOAP. Accordingly, Royal Trust brought this Motion, supported by Rosemary and the Children’s Lawyer, for the following relief (“Royal Trust’s Motion”):
(a) An Order appointing the Public Guardian and Trustee (the “PGT”), or such other person or entity that this Honourable Court deems just, as a Litigation Guardian for Raymonde in the Interpretation Application and in the Passing Application. (b) An Order amending the title of proceedings in the proceedings in which a Litigation Guardian is appointed for Raymonde.
[9] Doris brought a Motion for an Order that Doris be appointed as Litigation Guardian for Raymonde (“Doris’ Motion”).
[10] I heard both Motions on September 15, 2023.
[11] At the conclusion of the argument of these Motions, I learned that Doris had not filed her Motion Record with the Court’s Civil Court office, although the Motion Record was filed on CaseLines for use at the hearing. [3] All parties agreed that Doris’ Motion would be determined as if properly filed, on Doris’ undertaking to file the Motion Record in the Court’s Civil Office except for pages B-2-74 and B-2-75, which shall be left blank as they contain a without prejudice settlement communication. For efficiency and cost-effectiveness, considering that Doris’ Motion had been argued, Doris’ Motion shall be determined as if properly filed and on Doris’ undertaking to attend to its filing.
[12] At the conclusion of the hearing, I rendered my decision on these Motions, on the basis of reasons to follow. I ruled as follows:
(a) The Motion brought by Royal Trust for an Order appointing the PGT as a Litigation Guardian for Raymonde Haddad in Interpretation Application and in the Passing Application is granted. (b) The Order granted in the Interpretation Application applies to the Application for Directions that Royal Trust will issue as the Application for Directions arises from the Interpretation Application. (c) The Order appointing the PGT as Litigation Guardian for the Interpretation Application, the Passing Application and the Application for Directions (collectively, the “Applications”) shall contain those terms set out in paragraphs 3 and 4 of the draft Order filed by the PGT, as well as an Order that the PGT is authorized, as Litigation Guardian for Raymonde Haddad, to retain counsel. (d) The titles of proceedings of the Applications shall be amended to reflect, or prepared to reflect, the appointment of the PGT as Litigation Guardian for Raymonde. (e) The Motion brought by Doris Haddad-Bejjani for appointment as the Litigation Guardian for Raymonde Haddad is dismissed.
[13] The following are the reasons for these determinations.
A. Analysis
[14] Rule 7.01(1) provides that “[u]nless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian.” The term “disability” is defined in Rule 1.03(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. A minor is definitionally a person under disability by reason of age. An adult is a person under disability only when an absentee within the meaning of the Absentee Act, R.S.O. 1990, c. A.3, or when found to be “mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992, in respect of an issue in the proceeding, whether the person has a guardian or not” [emphasis added]. [4]
[15] In Huang v. Braga, 2016 ONSC 6306, the Court set out a two-part test for determination of whether a Litigation Guardian is required under Rule 7:
(a) The person must appear to be mentally incapable with respect to an issue in the case and, (b) As a result of being mentally incapable, the person requires legal representation to be appointed by the Court. [5]
[16] In Huang v. Braga, the following additional factors were also identified as pertinent to determining whether a party is under disability for the purposes of Rule 7:
(a) A person’s ability to know or understand the minimum choices or decisions required and to make them. (b) An appreciation of the consequences and effects of his or her choices or decision. (c) An appreciation of the nature of the proceedings. (d) A person’s inability to choose and keep counsel. (e) A person’s inability to represent him or herself. (f) A person’s inability to distinguish between relevant and irrelevant issues; and (g) A person’s mistaken beliefs regarding the law or court procedures.
[17] Assessing disability for the purposes of Rule 7 is different than the determination of capacity under the SDA because the capacity assessment required for Rule 7 is “in respect of an issue in the proceeding.” [6]
(a) Is Raymonde a Party Under Disability?
[18] Section 6 of the Substitute Decisions Act, 1992 (“SDA”) provides:
A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. [7]
[19] The decision to declare someone mentally incapable for the purposes of appointing a Litigation Guardian is a question to be decided largely on medical evidence, which must be current as the determination of incapacity is made at the time of the hearing. There are instances where the Court has determined a party to be incapable in the absence of any medical or expert evidence, [8] but the vast weight of the authority has held that medical evidence is required. [9] In Winter v. Sherman Estate, 2018 ONCA 379, the Court of Appeal explained:
A motion to appoint a litigation guardian affects both the personal interests of the individual whose ability to make decisions in a proceeding are affected, and the administration of justice. On such a motion, it is important that those who are concerned about a person’s capacity to participate in litigation and/or to instruct counsel are able to bring forward appropriate information for the court’s consideration. The issue to be determined is the person’s capacity at the time the order is considered: [citations omitted]. And direct medical advice and information about a person’s actual mental condition is key: [citations omitted]. [10]
[20] A review of the Raymonde’s medical records, as produced by her daughter, Rosemary, shows that Raymonde is incapable in respect of the issues raised by this proceeding. The evidence from Raymond’s medical caregivers showed the following:
(a) Dr. Cathy Braidek of the Royal Ottawa Mental Health Centre wrote, in a Geriatric Outreach Consult Report dated October 28, 2022, that Raymonde’s cognition is “severely impaired” and that her insight and judgment into need for care are limited due to her severe mixed vascular and Alzheimer’s dementia. Dr. Braidek reported that Raymonde’s cognitive ability and function were in decline and will continue to experience “ongoing deterioration”. (b) In her most recent report dated April 12, 2023, Dr. Braidek indicated that Raymonde was experiencing delirium and paranoia. Dr. Braidek reported that, as recently as March 20, 2023, Raymonde was hallucinating about her deceased mother and as recently as April 4, 2023, Raymonde was calling-out that her medical attendant was “trying to kill [her]”. (c) Dr. Braidek confirmed that geriatric psychiatry consultations were performed on Raymonde on October 28, 2022, December 9, 2022, February 17, 2023, March 3, 2023 and March 17, 2023. Dr. Braidek reported that Raymonde has difficulties recalling her own history and completing any activities of daily living for herself, and is totally dependent on caregivers for her instrumental activities of daily living. Dr. Braidek provided the opinion that Raymonde “would be unable to act in her own interests or be able to understand and appreciate the concept of instructing counsel or following any court proceedings.” (d) A Geriatric Nursing OP follow-up report dated April 11, 2023, noted that Raymonde is a 93-year-old with severe mixed vascular and Alzheimer’s dementia, ongoing behavioural disturbance and paranoia, and is not able to consent to the collection, disclosure or use of her personal health information. (e) Raymonde’s care team at the Peter D. Clark Centre, reported that Raymonde’s short-term and long-term memory is very poor; Raymonde’s ability to engage in conversations was inconsistent, and that she would often lose focus, and be visibly confused; Raymonde’s speech is unclear, with staff having to rely on signs, gestures, or sounds to interpret Raymonde’s needs; and that Raymonde needed a great deal of prompts and supervision for her daily routine activities.
[21] Rosemary’s observations of Raymonde support the medical assessment. Rosemary deposed that in August of 2021, Raymonde was moved to long term care. She was confused and was not “on subject”. Her cognition was severely impaired. Rosemary observed that Raymonde has difficulty with speaking clearly or coherently and has short and long-term memory issues. Raymonde’s other daughter, Doris, does not dispute that Raymonde is incapable of managing property.
[22] This evidence established that Raymonde’s mental and physical conditions disable her from understanding information that is relevant to making decisions in relation to the issues raised by these proceedings. The substantive issues in the Interpretation Application concern the manner in which the Timeshare Property and the Condo are to be distributed. The Passing Application and the Application for Directions similarly concern issues of property in which Raymonde has distinct and actual interests. I am satisfied, on the evidence that has been filed, that Raymonde does not have the capacity to understand information that is relevant to the issues raised in the Applications and does not have the capacity to appreciate the reasonably foreseeable consequences of a decision or lack thereof in the Applications.
[23] An Order shall thereby issue that Raymonde is a party under disability within the meaning of Rule 7.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Further, as the result of her incapacity, an Order shall issue that Raymonde shall be defended by a Litigation Guardian in the Interpretation Application, the Passing Application and the Application for Directions.
(b) The Appointment of Raymonde’s Litigation Guardian
[24] The foundation of Doris’ motion that she be appointed as the Litigation Guardian for Raymonde is that she is the attorney for property appointed by Raymonde under the CPOAP. Doris relied heavily on Rule 7.03(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides that an attorney for property who has been granted authority to act as Litigation Guardian has a presumptive entitlement to act as Litigation Guardian for a party under disability, unless the Court orders otherwise:
Unless the court orders otherwise, where a proceeding is against,
(b) a mentally incapable person who does not have a guardian with authority to act as litigation guardian in the proceeding but has an attorney under a power of attorney with that authority, the attorney shall act as litigation guardian. … [emphasis added]
[25] Doris also relied on Rule 7.02(1.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 which has identical wording.
[26] Doris’ reliance on Rules 7.02(1.1) and 7.03(2.1) in support her claim to be appointed as Raymonde’s Litigation Guardian was flawed because the CPOAP is silent on whether Doris is authorized to act as Litigation Guardian for Raymonde. The scope of the CPOAP is limited to Raymonde’s property matters. The CPOAP is not a power of attorney that grants Doris “with that authority [to act as litigation guardian]”. Hence, Rules 7.02(1.1) and 7.03(2.1) do not support Doris’ claim to be appointed as Raymonde’s Litigation Guardian.
[27] Further, although the CPOAP states, and thereby reflects Raymonde’s intention that “the Public Trustee shall not become committee of my estate”, I view this provision as pertaining to the appointment of a statutory guardian of property, as the “committee” of an estate, but not to the appointment of a Litigation Guardian. Finally, Doris’ submission that s. 24 of the SDA supports her appointment as Litigation Guardian is flawed because this provision deals with the appointment of a Guardian of Property.
[28] However, there is a broader issue that is dispositive of Doris’ claim to be appointed to act as Litigation Guardian for Raymonde, and which provides ample basis to “order otherwise” under Rules 7.02(1.1) and 7.03(2.1). A person who is appointed as an attorney for property is required by Rule 7.03(2.2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to “file an affidavit containing the information referred to in subrule (10)”. Subrule 7.03(10) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 requires, amongst other things, that the attorney for property who seeks to act as Litigation Guardian must swear that they have “no interest in the proceeding adverse to the party under disability.”
[29] The Supreme Court explained the level of disinterest required on the part of a Litigation Guardian in Gronnerud (Litigation Guardian of) v. Gronnerud Estate, 2002 SCC 38, as follows:
[Requiring] that the guardian be capable of providing a neutral, unbiased assessment of the legal situation of the dependent adult and offering an unclouded opinion as to the appropriate course of action . . . A litigation guardian who does not have a personal interest in the outcome of the litigation will be able to keep the best interests of the dependent adult front and center, while making decisions on his or her behalf. Given the primacy of protecting the best interests of disabled persons, it is appropriate to require such disinterest on the part of a litigation guardian. [11]
[30] In an affidavit sworn May 2, 2023, Doris swore, in paragraph 5, that: “I have no interest diverse to the party under disability being Raymonde.” Doris deposed further, in paragraph 9, that she will diligently attend to the interests of Raymonde Haddad and shall take all steps necessary for the protection of those interests.” I do not accept this evidence. I do not accept that Doris has no interest in these proceedings adverse to her mother, or that Doris is in a position to act on behalf of Raymonde without conflict of interest. I will explain why.
[31] Doris is a Respondent in the same proceedings as Raymonde. Furthermore, Doris has the potential for an outcome in the proceedings that is adverse to Raymonde. This is seen in an assessment of the Estate Trustee’s identification of the options for distribution of the Assets, which is binary. The Estate Trustee submits that the Assets will pass either to Raymonde alone in the case of intestacy, or to Raymonde, Doris, and Rosemary in equal shares if the Assets remain in the Wills and form part of the residue. Raymonde thereby has an interest in the Assets falling outside the Wills and passing to her by principles of intestate succession. Doris and Rosemary have an interest in the Assets remaining in the Wills and forming part of the residue. These positions are in conflict.
[32] This conflict of interest cannot be saved by Doris’ submission that if appointed Litigation Guardian she will prefer the interests of Raymonde over hers. This does not satisfy the requirements of the Rules nor the applicable case law. In any event, Doris’ conflict of interest with Raymonde is not merely analytical but has already materialized.
[33] Doris offered to purchase the Condo at a value that was below market value. This would have been contrary to Raymonde’s best interests as it would have reduced the value of Raymonde’s interest. Further, Doris proposed to encroach on the capital of her testamentary trust to purchase the Condo, when the right of encroachment granted by the Will is limited to the “education or uninsured medical costs of Doris or her children”.
[34] By Doris’ own admission, Raymonde has been incapable since April 24, 2020, when Doris first announced that she was acting under the authority of the CPOAP. The medical evidence showed that Raymonde has not been physically able to travel since at least August 2021. Doris, as Raymonde’s daughter and attorney for property, has thereby known for years that Raymonde derived no benefit from the Condo, which is located in the Philippines, apart from its economic value. Doris did not take steps since August 2021 to foster a market sale of the Condo because she prioritized her interest in purchasing the Condo. By negotiating to purchase a Condo in which Raymonde has entitlements while acting as attorney for property for Raymonde, Doris advanced her own self-interest ahead of the interest of Raymonde.
[35] Further, since 2020, Doris, who acts in person in these proceedings, has purported to also represent the interests of Raymonde. Rule 15.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that “[a] party to a proceeding who is under disability or acts in a representative capacity shall be represented by a lawyer.” A person acting in the capacity of attorney for property, as Doris has purported to do for Raymonde for years, cannot act as their legal representative before this Court. [12] Doris submitted that if appointed as Litigation Guardian for Raymonde, she will now retain legal counsel for Raymonde. However, Doris has previously disregarded this requirement.
[36] For these reasons, but primarily because Doris has interests in the Deceased’s Estate that are separate and apart from, and in conflict with Raymonde’s interests, Doris cannot act as Raymonde’s Litigation Guardian.
[37] Rule 7.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that the PGT is the Litigation Guardian of “last resort” in that the PGT shall only be appointed as Litigation Guardian where there is no other “proper person willing and able to act”, as follows:
Unless there is some other proper person willing and able to act as litigation guardian for a party under disability, the court shall appoint,
(b) the Public Guardian and Trustee, if the party is mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue and the proceeding and there is no guardian or attorney of property with authority to act as litigation guardian.
[38] Since the CPOAP does not grant Doris the authority to act as Litigation Guardian for Raymonde, there is no “attorney of property with authority to act as litigation guardian” for the purposes of Rule 7.04(1)(b). Furthermore, for the purposes of Rule 7.04(1), there is no “other proper person willing and able to act as litigation guardian” for Raymonde, as I will now explain.
[39] The only family members who have been identified as candidates to act as Litigation Guardians are Raymonde’s daughters, Doris, Rosemary and their families. Rosemary is similarly situated as her sister, Doris, in her entitlements under her deceased brother’s Will. Rosemary recognizes the conflict of interest between her position and that of her mother, and declines to be considered for appointment as Litigation Guardian. Indeed, Rosemary has sworn that she, along with her husband and children, and Doris’ husband and children by extension, are all similarly disqualified from acting as Raymonde’s Litigation Guardian due to their personal interest in the outcome of the Applications. I accept Rosemary’s evidence on this issue.
[40] In their letter dated September 5, 2023, filed, the PGT does not oppose being appointed “as Raymonde’s litigation guardian should the Court make the necessary findings that Raymonde is a party under disability and that no other proper person is willing and able to act as her litigation guardian as set out in the Rules of Civil Procedure (which would necessitate a finding that Doris is inappropriate due to a conflict in interest).” I have made these findings.
[41] An Order shall issue that the PGT is appointed as the Litigation Guardian for Raymonde Haddad for the purposes of the Applications, and that the titles of proceedings of the Applications shall be amended, accordingly. I also grant that the terms proposed by the PGT for their appointment as Litigation Guardian, as set out in my Disposition of these motions.
B. Procedural Orders
[42] In my Endorsement of May 29, 2023, I scheduled a Case Conference to be conducted on September 15, 2023, the hearing of the Motion by the Estate Trustee for Directions regarding the Condo to be heard on October 23, 2023 at 10:00 a.m., and that the parties attend at a further Case Conference on November 30, 2023.
[43] Considering that the September 15, 2023 hearing was converted from a Case Conference to the hearing of these Motions, the remainder of the schedule requires revision. I have granted leave for the Estate Trustee to bring an Application for Directions in the place of the Motion for Directions. This Application for Directions will not be ready to be heard on October 23, 2023, and shall instead be converted to a Case Conference of one hour. The Case Conference scheduled for November 30, 2023, is vacated.
C. Disposition
[44] Based on these determinations, I order as follows:
(a) Raymonde Haddad is a party under disability within the meaning of Rule 7.04 and 1.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and thereby may only bring a proceeding or defend a proceeding by a Litigation Guardian. (b) The applications brought in court files number CV-18-00002149-00ES and CV-21-00668457-00ES shall be defended by Raymonde Haddad by a Litigation Guardian, and the Application for Directions that arises from the application in court file number CV-21-00668457-00ES shall be brought against Raymonde Haddad as represented by a Litigation Guardian (collectively the “Applications”). (c) As there is no other person willing and able to act as Litigation Guardian for Raymonde Haddad, the Public Guardian and Trustee is appointed as the Litigation Guardian for Raymonde Haddad for the purposes of the Applications, only. (d) The title of proceedings in the Applications shall be amended or prepared to show the name of Raymonde Haddad as “Raymonde Haddad, by her Litigation Guardian, the Public Guardian and Trustee”. (e) The Public Guardian and Trustee shall be entitled upon request by the Public Guardian and Trustee, her counsel or her agent herein to the production and delivery of any and all information relating to Raymonde Haddad, including but not limited to medical, psychiatric, financial, governmental and personal information, documents, records, correspondence, clinical notes, reports, charts, assessments, or tests from any person, firm, corporation, institution, organization, medical facility, psychiatric facility, service provider or governmental authority, whether federal, provincial or municipal, to which Raymonde Haddad would be entitled were she capable of making the request, without requiring the consent of Raymonde Haddad. (f) All counsel previously retained by Raymonde Haddad in the Applications shall co-operate with the Public Guardian and Trustee and any counsel retained by the Public Guardian and Trustee by immediately delivering to the Public Guardian and Trustee or her counsel any and all documentation and/or information requested by the Public Guardian and Trustee or her counsel in respect of the Applications. (g) The Public Guardian and Trustee may retain counsel to act in the defence of Raymonde Haddad, notwithstanding Rule 7.05(3). (h) The Motion brought by Doris Haddad-Bejjani for appointment as the Litigation Guardian for Raymonde Haddad is dismissed. (i) The Estate Trustee is granted leave to bring the Application for Directions regarding the Condo rather than the Motion for Directions scheduled by the Endorsement of May 29, 2023. The date scheduled for the hearing of the Motion for Directions, October 23, 2023, is vacated, as is the Case Conference scheduled for November 7, 2023. (j) The parties to the Applications shall attend at a Case Conference, under Rule 50.13 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on October 23, 2023 at 10:00 a.m., by video conference, before any judge. The parties are on notice, under Rule 50.13(6), that procedural orders or directions may be made at the Case Conference.
[45] The parties may file on the CaseLines bundle for these Motions (006) a draft Order consistent with the disposition of these Motions, after agreement on form and content, and may then provide versions of the draft Order, in PDF and Word format, to the Estates List Trial Coordinator, to be brought to my attention for consideration.
D. Costs
[46] The parties are encouraged to agree on the issue of costs. If the parties cannot agree on the issue of costs, any party seeking costs may, by October 20, 2023, deliver by email to my judicial assistant, after service and filing on CaseLines, written costs submission of no more than four (4) pages, plus a Costs Outline. Any party against whom costs is sought may, by November 3, 2023, deliver by email to my judicial assistant after service and filing on CaseLines, responding cost submissions of the same length. If no party delivers any written cost submissions by November 3, 2023, I will deem the issue of costs to have been settled.
Justice A.A. Sanfilippo Date: October 6, 2023
Footnotes
[1] For brevity and clarity, I will respectfully refer to the parties by their first names, in the same manner they did in their written records and oral submissions.
[2] Rule 15.01: “A party to a proceeding who is under a disability or acts in a representative capacity shall be represented by a lawyer.” Also, Bogue v. Bogue, 2023 ONSC 1642, [2023] O.J. No. 1226, at paras. 14-17 [Bogue]; Direk v. Attorney General of Ontario, 2010 ONSC 3428, [2010] O.J. No. 2503, at para. 6: “The law is well settled in Ontario that the court has no discretion to permit a non-lawyer to represent another individual in proceedings before the Superior Court of Justice. The topic is analyzed in depth in Gagnon v. Pritchard (2002), 58 O.R. (3d) 557 (S.C.J.). As noted in that case, even where there is a formal power of attorney in favour of an individual, that person cannot act as legal representative in Superior Court proceedings.”
[3] CaseLines bundle for the hearing (006), as Doc. B-2:3, Motion Record of Doris Haddad-Bejjani, pp. B-2-1 to B-2-82.
[4] R.R.O. 1990, Reg. 194: Rules of Civil Procedure, s. 1.03(1)(b).
[5] Huang v. Braga, 2016 ONSC 6306, [2016] O.J. No. 5238, at para. 18 [Huang v. Braga], leave to appeal refused, 2017 ONSC 3826.
[6] W. M. v. Office of the Public Guardian and Trustee, 2017 ONSC 5887, [2017] O.J. No. 5180.
[7] S.O. 1992, c. 30.
[8] Auriemma et al. v. Cristoveanu, 2023 ONSC 5072, [2023] O.J. No. 4031, at para. 37, applying Murphy v. Carmelite Order of Nuns, [2004] O.J. No. 6286, at para. 12.
[9] Huang v. Braga, at paras. 20 and 25; 626381 Ontario Ltd. v. Kagan, Shastri, 2013 ONSC 4114, 116 O.R. (3d) 202, at para 24; McDonald v. Styles, 2022 ONSC 3141, [2022] O.J. No. 2642, at para. 9; Costantino v Costantino, 2016 ONSC 7279, [2016] O.J. No. 5963, at para. 58; Lico v. Griffiths, [2008] O.J. No. 1018 (S.C.J.) at para. 30, citing Barnes v. Kirk, [1968] 2 O.R. 213 (C.A.); C.C. v. Children’s Aids Society of Toronto, [2007] O.J. No. 5613 at para 25.
[10] 2018 ONCA 379, [2018] O.J. No. 2068, at para. 14, leave to appeal refused, [2019] S.C.C.A. No. 438. Also, Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, 151 O.R. (3d) 609, at paras. 104-105.
[11] 2002 SCC 38, [2002] 2 S.C.R. 417, at para. 20.
[12] Bogue, at paras. 14-16.