Court of Appeal for Ontario

Date: 2019-12-05 Docket: C66421

Justices: Lauwers, Paciocco and Fairburn JJ.A.

Between

Public Guardian and Trustee Applicant (Respondent on Appeal)

and

Allan Kennedy and Dan Kennedy Respondents (Appellant)

Counsel

Daniel Joseph Kennedy, in person

Lynn Donnelly, for the Public Guardian and Trustee

Heard: November 29, 2019

On appeal from the judgment of Justice Lynda C. Templeton of the Superior Court of Justice, dated December 19, 2017.

Reasons for Decision

[1] The Public Guardian and Trustee ("PGT") is the statutory guardian of an adult, Allan Kennedy ("Allan"). This guardianship enables the PGT to make decisions concerning Allan's property. Daniel Kennedy ("Daniel"), the appellant, is Allan's brother. He applied to the PGT to replace the PGT as Allan's statutory guardian. The PGT refused, finding Daniel to be unsuitable to manage Allan's property, and to lack a suitable management plan. Daniel disputed the PGT's refusal. Pursuant to the Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 18(2), the PGT was therefore required to apply to the court to have its decision approved. That application was brought, and the application judge granted an order approving the PGT's refusal. Daniel now appeals that decision.

[2] Daniel raises numerous concerns, but his grounds of appeal can fairly be summarized as follows:

• The application judge erred by failing to consider all the evidence; and
• The application judge misapplied the applicable test.

[3] Daniel also wishes to present fresh evidence on appeal and asks for the appointment of a criminal lawyer to investigate the surveillance he alleges against himself and his family.

[4] We would not grant the appeal and would decline to accept the fresh evidence.

[5] Not only did the application judge say explicitly that she considered all the evidence, the substance of her ruling demonstrates that she did so. The test she applied was also correct.

[6] We have reviewed the matter thoroughly and have fully considered the broad oral and written submissions made by Daniel but can find no legal error, error in principle, or palpable or overriding errors of fact made by the application judge.

[7] With respect to the fresh evidence, it must be rejected because it cannot meet the legal test in Palmer v. The Queen, [1980] 1 S.C.R. 759. The fresh evidence raised by Daniel could not, along with the other evidence presented to the application judge, have affected the result.

[8] We must also decline Daniel's request for the appointment of a criminal lawyer. We have no authority to do so.

[9] We therefore dismiss the appeal. We make no order with respect to costs.

P. Lauwers J.A. David M. Paciocco J.A. Fairburn J.A.