Court File and Parties

Court File No.: CV ‐ 23 ‐ 00695618 ‐ 00ES Date: 20231018 Ontario Superior Court of Justice

Re: AI THAI ANNA CHANG, AI-LEE CAROL LAM, MEI MEI LEONIE CHUNG, and MEI FUNG GILLIAN HSIEH, Applicants -and- MEI CHU SYLVIA HSIEH, HSIN HUA HSIEH, TING YING LIN, AI CHUAN DORIS LI, AY YUAN DOROTHY HUNG, AI MAN ELIZABETH WANG, FU JU JAMES WANG, AI THONG CYNTHIA HOU, and THE PUBLIC GUARDIAN AND TRUSTEE Respondents

Before: FL Myers J.

Counsel: Kenneth E Wise, for the Applicants Celso Sakuraba, for the Respondents Mei Chu Sylvia Hsieh, Ai Man Elizabeth Wang, and Fu Ju James Wang Ai Chuan Doris Li and Ai Thong Cynthia Hou each representing herself

Heard: October 18, 2023

Endorsement

[1] Section 3 counsel for incapacitated parents moves for directions concerning the order made by Sanfilippo J. on consent on April 24, 2023. The applicants and the respondents are the children of the parents (and some of their spouses). Two of the respondent children, Mei Chu Sylvia Hsieh and Ai Man Elizabeth Wang, and the latter’s spouse, are represented by Mr. Sakuraba.

[2] Mr. Sakuraba’s client Mei Chu Sylvia Hsieh is the attorney for care and for property of her parents. The powers of attorney appointing her are disputed in this proceeding. There are numerous financial issues among the parties. Today, however, I am dealing only with the parents’ quality of life and care.

[3] I have warned the parties clearly and resolutely, that if they cannot find a way to cooperate to protect their parents, I would expect any judge to quickly appoint an independent guardian to do so. The parents’ lives are not to be weaponized in a sibling dispute.

[4] I understand that the applicants say that all fault lies with Mei Chu Sylvia Hsieh rather than with the any dysfunction among them all. Whether that ultimately is proven true will also be for another day. For the present, there may be areas to discuss among the children – such as whether Alexis Lodge charges too much for pharmaceutical products or whether the parents are properly cared for by the lodge’s doctor rather than their prior clinic. But until they agree or someone comes to court to bring an issue forward for resolution, the parents need protection.

[5] I have no idea whether the lodge charges too much for pharmaceuticals or whether, perhaps, they build in charges to reflect services rendered in collecting, storing, distributing, and administering medications. I do not know if they have processes available to let them receive and trust pharmaceutical products provided by family members. I similarly have no idea whether the lodge’s rule that only their physician-in-residence can treat residents is ultimately a good rule for the parents’ health.

[6] I do know this however; until the children agree and approach the lodge decently, or bring the matter to court, random and haphazard bits of self-help serve to destabilize the parents’ care and inflame issues in the litigation.

[7] Mei Chu Sylvia Hsieh’s position today is that the court has no jurisdiction to make the orders sought by s. 3 counsel in her motion for directions. Counsel points to the limited procedural terms of Rule 75.06 (3) of the Rules of Civil Procedure. That rule applies to motions for directions in applications regarding testamentary dispositions. It speaks explicitly about people with interests in an estate. It has nothing at all to do with this motion.

[8] This application is brought under the Substitute Decisions Act, 1992, S.O. 1992, c 30 to terminate the two powers of attorney under which Mei Chu Sylvia Hsieh purports to act. The procedures set out in Part III of the statute apply to this proceeding. Section 77 (3) of the statute provides:

Order (3) On considering the application or motion, the judge may, (a) grant the relief sought; (b) require the parties or their counsel to adduce additional evidence or make representations; or (c) order that the application or motion proceed to a hearing or order the trial of an issue and give such directions as the judge considers just.

[9] I have ample authority under this section to provide directions. Moreover, I agree with Ms. Shi that the court’s authority under Rule 1.05 to impose terms and make directions as part of any order (including an order dismissing this motion as sought by Mr. Sakuraba) provides further authority should the court need it. So too does Rule 50.13 (6).

[10] Most significantly, if the court lacked authority at law, I would draw on the court’s parens patriae jurisdiction to protect the parents. The doctrine of parens patriae is an ancient doctrine under which the King and the government are entitled and, indeed obliged, to protect the best interests of vulnerable people. The parties agree that their parents are incapable under the statutory consent scheme. They were so found by an assessor in August. As such, this court is able to exercise its equitable authority to protect and defend their best interests.

[11] Paragraph 6 of the order dated April 24, 2023, provides that “…no party shall interfere directly or indirectly with the parents' residence and care at Alexis Lodge.”

[12] Alexis Lodge provides pharmaceutical products to residents. A credit card auto-pay system was set up for the parents to pay for their drugs and products as needed. Mei Chu Sylvia Hsieh says that she can supply the parents’ drugs and vitamins more cheaply. Moreover, the lodge and its chosen pharmacy are not disclosing pharmacy invoices to her. So, she took her mother to the bank and stopped the auto-pay system.

[13] In addition, the parents’ OHIP cards expired or became inactive. Mei Chu Sylvia Hsieh had them renewed with a new suffix code as the government does. When she agreed to the April 24, 2023 order, she says that she did not know that the lodge requires that only their in-house doctor treat residents. She does not agree with this rule. So, she withheld the parents’ new OHIP codes from the lodge and prevented the lodge’s doctor from being paid.

[14] In her affidavit, Mei Chu Sylvia Hsieh says she did not obtain “new” OHIP cards for her parents. While technically true, she knows that the old cards with the old suffix codes will not work and the new codes were needed for the cards to be used. Her evidence is too cute by half. She also swears that the lodge first asked her for OHIP numbers on October 16, 2023. That is not true. Section 3 counsel asked for the new OHIP details on September 22, 2023. The lodge asked her for the revised OHIP details on September 23, 2023.

[15] Apparently, Mei Chu Sylvia Hsieh provided the lodge with her parents’ current OHIP details on the eve of court this week. But in her zeal to impose her will as to the doctors who should treat her parents, she left them in a residence with a doctor who could not be paid for treating them for more than three weeks! Similarly, Mei Chu Sylvia Hsieh has left her parents without access to their pharmacy while the lodge is unwilling to take drugs provided by her!

[16] Mr. Sakuraba submits that the action of Mei Chu Sylvia Hsieh did not “interfere directly or indirectly with the parents’ residence or care at Alexis Lodge” in breach of Justice Sanfilippo’s order. I am not deciding today whether she breached the order or not. But I agree with s.3 counsel that clarification is needed so that the parents are protected from Mei Chu Sylvia Hsieh or any party adopting their own interpretations of the court order and imperiling their parents’ well-being.

[17] Similar issues have arisen with the parents’ bank and financial advisor. Mei Chu Sylvia Hsieh has taken her incapacitated parents to give directions to the bank. It does not know if it can take instructions from incapacitated people and it knows that Mei Chu Sylvia Hsieh’s powers of attorney are in dispute. So, it has frozen the parents’ accounts. The bank needs assurances as to how to proceed so that the parents can access their money.

[18] The manager of the lodge also complains to s. 3 counsel that she is being interfered with by Mei Chu Sylvia Hsieh to the extent that management does not want to deal with her further.

[19] Finally, although Justice Sanfilippo ordered the parties to obtain a retrospective capacity assessment as at the date of Mei Chu Sylvia Hsieh’s powers of attorney, Mei Chu Sylvia Hsieh has yet to provide the applicants and the capacity assessor with the medical records that the capacity assessor wants. Justice Sanfilippo ordered the parties to cooperate and provide all such medical records. Mr. Wise says, without evidence, that he fears that the records that he has received may be incomplete due to the intervention of Mei Chu Sylvia Hsieh. Ms. Sakuraba consents to an order that, at their own cost. the applicants be entitled to obtain from any of the parents’ health care providers, copies of all medical records concerning the parents as may be sought by the capacity assessor. Although few records may remain outstanding, Mr. Wise may need to re-order all medical files to see if any are missing or have been altered. The applicants may seek any costs and disbursements associated with obtaining the parents’ medical records as part of the costs of this proceeding from the judge who hears the application.

[20] In my view, it is urgently necessary that the draft order sought by s. 3 counsel be made. Interference with the parents’ quality of life must stop immediately. I am persuaded that the draft order found at document E2 on Caselines should be made. I agree with Ms. Shi and Mr. Sakuraba that costs should be deferred o the judge who decides the application.

[21] The draft order needs to be amended to describe the affidavits filed and the people at the hearing. The standard medical record disclosure clause should be added in favour of the applicants. I see nothing about the bank. If it needs some greater certainty than what is already in the draft order, the parties should discuss it and agree to language if possible. If they cannot agree, I may be contacted to convene a brief case conference to settle the terms of the order.

[22] I agree with Mr. Sakuraba that the order of April 24, 2023 was to provide a process to protect the parties only in the interim while this lawsuit moves forward. I said at the outset that I have no idea whether the issues raised by Mei Chu Sylvia Hsieh might be completely reasonable and ultimately in the parents’ best interests. That discussion needs to wait for agreement among the parties or the outcome of the lawsuit. All parties must understand that the court order preserves the status quo and prevents people from taking unilateral steps to change their parents’ arrangements with the lodge while this lawsuit proceeds. Destabilizing self-help actions will not be tolerated.

[23] Equally important however, litigants need to learn that there are times when they need to cooperate even though they are at odds with the other parties. The lawyers know that they are required to communicate, co-operate, and act with common sense to have matters heard efficiently and as affordably as possible. You may not want your lawyer to communicate with the other side or to cooperate. But your lawyer will tell you when he or she is positively required to do so. Emails cannot be left unanswered for weeks on end. Timetables need to be met. Lawyers need to be able to communicate with each other routinely to get matters scheduled and heard in everyone’s interest.

[24] Communicating with the other side to work through process and scheduling matters (and substantive matters too if possible) is not weakness. It is common sense and self-interest that happens to coincide with mutual interest. Moreover, the court demands it of its officers.

FL Myers J.