Public Guardian and Trustee v. Pokonzie, 2010 ONCA 241

CITATION: Public Guardian and Trustee v. Pokonzie, 2010 ONCA 241

DATE: 20100401

DOCKET: M38500, M38595 (C51530)

COURT OF APPEAL FOR ONTARIO

Blair, LaForme JJ.A. and Durno J. (Ad Hoc)

IN THE MATTER of the Substitute Decisions Act, 1992, S.O. 1992, Chapter 30, as amended, sections 55 and 62;

AND IN THE MATTER of the person of Royce Pokonzie;

BETWEEN

The Public Guardian and Trustee

Applicant (Respondent in Appeal)

(Responding Party in Motion; Moving Party in Cross-Motion)

And

Royce Pokonzie, Edward Pokonzie, Paulette Desormeaux,

Haven Pokonzie and Adrian Pokonzie

Respondents

(Edward Polonzie, Appellant, Moving Party)

(Royce Pokonzie, Respondent in Appeal

Haven Pokonzie, Respondent in Appeal

and Adrian Pokonzie Respondent in appeal)

APPLICATION UNDER ss. 55 and 62 of the Substitute Decisions Act, 1992, S.O. 1992, Chapter 30 as amended.

Shelley Hobbs, for the applicant/moving party The Public Guardian and Trustee

C. Ticalo by video link from Sudbury, for Royce Pokonzie

Edward Pokonzie by video link from Sudbury in person

Heard & released orally: March 18, 2010

ENDORSEMENT

[1] The Court finds itself in the curious position of having before it two motions by opposing parties seeking essentially the same relief. The Public Guardian and Trustee (PGT), supported by all respondents in the appeal, seeks an order quashing Mr. Pokonzie’s appeal. Mr. Pokonzie, for his part, seeks an order dismissing his own appeal for want of jurisdiction. Either way, Mr. Pokonzie has made it clear that he will seek leave to appeal to the Supreme Court of Canada.

[2] Mr. Pokonzie’s argument appears to be that this Court lacks jurisdiction to hear the appeal from Justice Kane’s guardianship of the person order because the order has been carried out (i.e. Adrian has assumed guardianship of the person of his Down’s Syndrome brother, Royce) and because Adrian and Royce have move to British Columbia. We would not dismiss the appeal on this jurisdictional basis, however.

[3] On the motion to quash, the PGT argues a number of other grounds that Ms. Hobbs terms “jurisdictional” – for example, the failure to serve Royce’s solicitor of record, Mr. Ticalo personally, and the point that this Court has no power to grant the habeas corpus relief sought by Mr. Pokonzie as a matter of first instance. We would not quash the appeal on the former ground and while Ms. Hobbs is correct with regard to the habeas corpus point, Mr. Pokonzie’s Notice of Appeal nonetheless clearly seeks an order setting aside the order of Kane J. and, in particular, “the removal of all claims to the guardianship of the person of Royce Pokonzie. The Court does have jurisdiction to deal with these claims.

[4] That said, however, the Court does have the power to quash an appeal for want of merit – the technical language is “manifestly devoid of merit” – and we are satisfied that this is one of those rare cases where that relief should be granted. We can see no basis on any of the materials filed upon which the appeal could succeed. Everything suggests that Mr. Pokonzie is simply attempting to re-litigate the application before Kane J. – which, as Rouleau J.A. pointed out in an earlier proceeding before this Court, Mr. Pokonzie did not oppose, except for the timing of the move.

[5] We therefore grant the order to quash the appeal.

[6] Mr. Pokonzie’s motion to dismiss on the terms he seeks is dismissed.

“R.A. Blair J.A.”

“H.S. LaForme J.A.”

“B. Durno J.”