Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20211217 DOCKET: C68604

Hourigan, Trotter and Zarnett JJ.A.

BETWEEN

William Harold Patterson Moving Party (Respondent)

and

Sarah Anne Elizabeth Patterson, in her personal capacity and in her capacity as the personal representative of the Estate of Sheila Patsy Patterson, and Donald David Oral Patterson Jr. Responding Parties (Appellants)

Counsel: Raymond Murray, for the appellants Taayo Simmonds, for the respondent

Heard and released orally: December 16, 2021

On appeal from the order of Justice Brian W. Abrams of the Superior Court of Justice, dated July 23, 2020.

Reasons for Decision

[1] The appeal arises from the motion judge’s order that the appellants pass their accounts for the period in which they served as Attorneys for Property for Sheila Patterson.

[2] The appellants submit that the respondent could only apply for a passing of the accounts if he properly obtained leave of the court, pursuant to s. 42(4) (6) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30. They contend that the respondent did not seek leave of the court and that the motion judge did not consider the respondent’s need to seek leave.

[3] Second, the appellants argue that even if the motion judge properly appreciated the necessity for leave, he nonetheless misstated and misapplied the test for the order by failing to consider whether the respondent had a “genuine interest in the grantor’s welfare”: Lewis v. Lewis, 2020 ONCA 56, at para. 5.

[4] Third, the motion judge is said to have made a palpable and overriding error because the requisite evidentiary foundation supporting his order did not exist.

[5] Finally, the motion judge is alleged to have failed to provide sufficient reasons for his decision.

[6] We would not give effect to these grounds of appeal.

[7] In our view, the motion judge implicitly granted leave and applied the appropriate test under s. 42 of the Act based on the record before him. We are also of the view that the reasons, when read in context of the record, permit appellate review.

[8] The appeal is dismissed. The appellants shall pay costs of the appeal to the respondent in the all-inclusive amount of $5,000.

“C.W. Hourigan J.A.”

“Gary Trotter J.A.”

“B. Zarnett J.A.”