Court of Appeal for Ontario

Date: 2018-12-12 Docket: C64822

Judges: Juriansz, Brown and Roberts JJ.A.

Between

Arnis Raimonds Dzelme Respondent (Respondent)

and

John Dzelme Applicant (Appellant)

Counsel

John Dzelme, acting in person

Jason Little, for the respondent

Heard: December 6, 2018

On appeal from the judgment of Justice James A. Ramsay of the Superior Court of Justice, dated December 5, 2017.

Reasons for Decision

[1] The appellant, John Dzelme, appeals from the motion judge's dismissal of his request for an order that his brother, the respondent, Arnis Dzelme, disclose information about the assets of his parents, Ritvars and Elvira Dzelme, and account for their property and finances under a power of attorney for property.

[2] John clarified at the hearing that he no longer seeks relief in respect of his mother's financial affairs; he limits his appeal to the dismissal of relief requested about his late father's financial affairs.

[3] The motion judge held that the only basis on which John would have standing to apply for the relief sought would be under s. 42(4)6 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the "SDA"), which provides that "[a]ny other person" may apply for a passing of accounts of an attorney of property "with leave of the court."

[4] John submits the motion judge erred in so finding. John argues that since he was one of his father's attorneys for personal care and his father was incapable at the time of the hearing below, he had the standing to apply for a passing of accounts under SDA s. 42(4)1.

[5] Arnis concedes that the motion judge erred and John could apply under s. 42(4)1 for a passing of accounts without leave.

[6] However, on our reading of his reasons, the motion judge would have refused John's request in any event.

[7] Section 42(1) of the SDA states: "The court may, on application, order that all or a specified part of the accounts of an attorney or guardian of property be passed" (emphasis added). Even if a person has standing to apply under s. 42(4) of the SDA, it remains in the discretion of the court to order a passing of accounts: McAllister Estate v. Hudgin (2008), 42 E.T.R. (3d) 313, at para. 13; Lacroix v. Kalman, 2015 ONSC 19, at paras. 32 and 40. Factors a court takes into account in exercising its discretion include the extent of the attorney's involvement in the grantor's financial affairs and whether the applicant has raised a significant concern in respect of the management of the grantor's affairs to warrant an accounting: McAllister Estate, at para. 13.

[8] In the present case, the motion judge made several key findings of fact: (i) both parents - Ritvars and Elvira - were capable when on May 3, 2016, they executed written instructions to Arnis not to produce any financial information about their affairs to John; (ii) Elvira maintained this position in response to John's motion; (iii) a September 30, 2017 capacity assessment of Elvira found that she was capable of making her own decisions; (iv) a third brother, Ivan, corroborated Arnis' evidence that he was following his parents' wishes; (v) the application judge had no doubt that Arnis was following his mother's wishes; and (vi) the application judge had no reason to suspect that Arnis was not acting properly, including in respect of the survivorship designation on his mother's tax-free savings account. We are not persuaded the motion judge's findings are tainted by any palpable and overriding error.

[9] Given those findings of fact, we see no error in the motion judge's dismissal of John's request for an order that his brother pass accounts in respect of his father's finances.

[10] The appeal is dismissed.

[11] To the extent John seeks leave to appeal the award of substantial indemnity costs made against him by the motion judge, we do not grant leave. We see no error in principle by the motion judge. Paras. 3, 4 and 5 of the motion judge's cost endorsement support his award of substantial indemnity costs.

[12] Arnis seeks substantial indemnity costs of the appeal against John. We are not persuaded that costs at an elevated level are merited. Arnis waited until the hearing to concede that the motion judge made a mistake about John's standing. An earlier concession was warranted; it would have narrowed the issues on the appeal. John shall pay Arnis partial indemnity costs of the appeal fixed in the amount of $7,500, inclusive of disbursements and applicable taxes.

"R.G. Juriansz J.A." "David Brown J.A." "L.B. Roberts J.A."