Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210921 DOCKET: M52761 (C69730)

Lauwers J.A. (Motion Judge)

BETWEEN

The Public Guardian and Trustee Applicant (Respondent/Responding Party)

and

Mary Zammit and Patricia Zammit Respondents (Appellants/Moving Parties)

Counsel: Patricia Zammit, acting in person Matthew Tubie, for the moving party Mary Zammit Philippa Geddie, for the responding party

Heard: September 7, 2021 by video conference

Reasons for Decision

[1] The moving party Mary Zammit seeks a stay of the order of Dietrich J. dated July 20, 2021 in which she declared that Mary Zammit is incapable of making decisions respecting her property, ordering the termination of the power of attorney in favour of her daughter Patricia Zammit, and appointing the Public Guardian and Trustee (“PGT”) as the guardian of Mary Zammit’s property.

[2] The parties agree that the governing precedent is the Supreme Court’s decision in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. The elements of the test are that there is a serious issue to be tried, the applicant will suffer irreparable harm if the relief is not granted, and the balance of convenience favours the granting of relief.

[3] This court has put a gloss on the application of the test in RJR-MacDonald where a stay is sought pending appeal. In Ogden Entertainment Services v. United Steelworkers of America, Local 440 (1998), 38 O.R. (3d) 448, [1998] O.J. No. 1824 (C.A.) Robins J.A. said, at para. 5:

In determining whether a stay should be granted, regard must be had to the judgment under appeal and a strong case in favour of a stay must be made out. The court must proceed on the assumption that the judgment is correct and that the relief ordered was properly granted. The court is not engaged in a determination of the merits of the appeal on a stay application.

[4] In this case, there were three prior judicial processes leading to the order under appeal. The first was the order of Koehnen J. on February 23, 2021 directing a capacity assessment of Mary Zammit on the application of the PGT. The certified capacity assessor met with Mary Zammit twice and gave the opinion that she lacked capacity to manage her property due to an underlying cognitive impairment. Further, during the first meeting, Mary Zammit had no memory of having made the power of attorney in favour of her daughter Patricia Zammit, although she recalled the power of attorney in the second meeting. Based in part on the capacity assessment, the motion judge made an interim appointment of the PGT for guardianship of Mary Zammit on June 30, 2021. In the decision under appeal, the motion judge made the appointment permanent.

[5] The core of the motion judge’s decision is set out in paras. 22-23:

Based on the evidence, Patricia continued to use Ms. Zammit's funds for her own benefit and the benefit of her children after she was appointed as Ms. Zammit's attorney for property. This conduct is contrary to Patricia's fiduciary duty to exercise her powers and duties diligently, with honesty and integrity and in good faith, for the incapable person's benefit: SDA, s. 32(1) and s. 38(1). A core duty of an attorney for property is the duty to act exclusively for the benefit of the grantor, relinquishing the attorney's own self-interest.

It is apparent that Patricia has breached her fiduciary duties to Ms. Zammit both before and after she was appointed as Ms. Zammit's attorney for property. Even with the restrictions on the CIBC account, thousands of dollars have been withdrawn from the CIBC account following the execution of the Power of Attorney. Between March and June 2020, $5,592.29 was debited from Ms. Zammit's TD Bank chequing account, which is a joint account in the names of Ms. Zammit and Patricia. These debits include purchases from retailers, at least some of which were not likely for Ms. Zammit's benefit or exclusive benefit (e.g., Apple.com, numerous fast food restaurants, LCBO, Netflix, and gas stations). In February 2020, Ms. Zammit paid $3,200 for a car for Patricia, and months later, in September 2020, Ms. Zammit paid $3,700 for a replacement car when the first was rendered inoperable following an accident. Between June 2020 and January 2021, there were $13,710 in unexplained ATM withdrawals from Ms. Zammit's TD Bank chequing account. Patricia conceded that she, personally, had made only a few modest contributions to the TD Bank chequing account. Most of the deposits to the account came from Ms. Zammit's property.

[6] At the first step of the RJR-MacDonald test – that there is a serious issue to be tried – the moving party states in an affidavit that the purchases made by her daughter Patricia Zammit were for Mary Zammit’s benefit and were in line with her intentions or with her consent. The motion judge found that Mary Zammit’s lack of capacity was fatal to the argument based on her consent.

[7] Counsel’s second argument is that the CIBC disregarded the power of attorney in favour of Patricia Zammit when it made the report that resulted in an investigation. Mary Zammit’s incapacity affects the validity of the power of attorney.

[8] On the issue of irreparable harm, Patricia Zammit argues that there are bills that must be paid, to which Mary Zammit cannot attend because she is in a hospital following a fall that occurred after the order was made. Counsel points out that there is no evidence that the PGT is attending to these day-to-day expenses so that it would be preferable in the circumstances for the stay to be granted in order to allow Patricia Zammit to resume daily care for her mother. It is not clear why a temporary, if any, delay in bill payments would constitute irreparable harm, assuming that the PGT staff are not yet fully engaged with Mary Zammit.

[9] On the balance of convenience, counsel submits that if a stay is not granted then the PGT will take over Mary Zammit’s bank accounts and daily financial activities. This will drastically change the status quo thereby impacting her daily activities with her family. Again, it is not clear why the order protecting Mary Zammit’s assets would have such an effect on her daily activities with her family.

[10] The complaints made by the moving party’s counsel essentially turn on the facts. Counsel has not pointed to any palpable and overriding errors of fact made by the motion judge. The motion judge’s reasons are thorough and comprehensively address all of the issues raised by counsel in argument. The grounds of appeal are not frivolous, but they are not likely to be successful. As noted, the basis for a stay has not been established.

[11] The motion is dismissed with costs reserved, as agreed, to the panel hearing the merits of the appeal.

“P. Lauwers J.A.”