Court of Appeal for Ontario

DATE: 20240918 DOCKET: COA-23-CV-1365

In the Guardianship of Person and Property of Bhupinder Rai and Neera Rai

Judges: Zarnett, Monahan and Pomerance JJ.A.

BETWEEN

Lalit Rai Applicant/Appellant

and

Anu Bhalla, Bhupinder Kumar Rai, Neera Rai and The Public Guardian and Trustee Respondents/Respondents

Counsel: Robert McGlashan and Melvyn L. Solmon, for the appellant Tracey Rynard, for the respondent Anu Bhalla F.M. Sajid B. Hossain and Zaheed Moral, for the respondent Neera Rai

Heard: September 12, 2024

On appeal from the order of Justice F.L. Myers of the Superior Court of Justice, dated November 24, 2023, with reasons reported at 2023 ONSC 6680.

Reasons for Decision

[1] This proceeding began as an application by the appellant, Lalit Rai (“Lalit”), seeking numerous heads of relief in relation to his mother, the respondent Neera Rai (“Neera”), his late father, the respondent Bhupinder Kumar Rai (“Bhupinder”) [1], and his sister, the respondent Anu Bhalla (“Anu”). The appellant initially identified 23 heads of relief, summarized by the motions judge as falling into 8 categories. These included the following:

a. an order removing Anu as attorney for Neera under 2021 and 2023 powers of attorney signed by Neera (the “2021 and 2023 Powers of Attorney”);

b. an order removing Neera as attorney for Bhupinder;

c. an order appointing Lalit and a brother as guardians for Bhupinder;

d. an order requiring Anu to account for and to repay their parents Neera and Bhupinder any funds taken by Anu or given to her by either parent on the grounds of undue influence.

[2] Approximately one week before the hearing of the application, Lalit abandoned his challenges to Neera’s and Bhupinder’s powers of attorney [2] and no longer sought to be appointed as Bhupinder’s guardian. After having already amended his original notice of application once, he sought through a reply factum more limited relief, and at the hearing before the application judge narrowed it further to:

a. A declaration that the applicant did not take $640,000 and that the sister had not provided disclosure of the $640,000 as required by Gilmore J.’s July 28, 2023 endorsement;

b. Appointment of s. 3 counsel for the father. Financial disclosure concerning the father from the time the sister took over caring for him;

c. Directions to protect the father’s health; and

d. An order that the 2023 capacity assessment of the mother was not valid.

[3] The application judge reasoned that, with the relief relating to the powers of attorney and guardianship having been abandoned, and applicant’s counsel having confirmed that Neera’s capacity was not in issue, none of the relief sought by the applicant remained available to him as a matter of law. In particular, the application judge explained that, because Lalit was no longer challenging the 2021 or 2023 Powers of Attorney or Neera’s capacity, the validity of Neera’s capacity assessment, Bhupinder’s health and financial status, and the appointment of s. 3 counsel were no longer relevant to any live issue in the application. The application judge pointed out that once the parents’ capacity was not at issue, the remaining financial disputes fell by the wayside. [3] The application judge also denied a request by Lalit to order an accounting by Anu under s. 42 of the SDA since such relief had not been sought in the application and the evidentiary record did not permit the court to properly assess the request, noting that “this is not an issue that is resolved on the sudden in court in a proceeding that until a week ago was predicated on the incapacity of the mother and allegations of undue influence.”

[4] The application judge succinctly summarized the difficulty with the amended application as follows:

[The applicant] wants a trial and discovery. But there is no statement of claim. There is no live cause of action on which to build a case. One cannot just come to court to have a trial with no issues as a form of discovery to support later claims.

[5] The application judge concluded that, with no pleading setting out cognizable causes of action, there was nothing left for him to decide and, accordingly, he dismissed the application. He also ordered Lalit to pay costs on a partial indemnity basis in the amount of $100,000 to each of Anu and Neera.

[6] The appellant argues that the application judge erred in a number of respects, including by failing to order an accounting by Neera when such an accounting had been ordered by the case management judge some months earlier; by failing to consider evidence that Anu had exercised undue influence over Neera; and by not taking into account the fact that Lalit has previously been a caregiver for his parents, and been named by them as an attorney in prior powers of attorney. Lalit also seeks leave to introduce fresh evidence regarding Bhupinder’s passing in February 2024 [4], along with evidence of alleged financial abuse of Neera by Anu subsequent to the application judge’s endorsement. Finally, he seeks leave to appeal the costs order.

[7] Although the appellant strongly disagrees with the dismissal of his application, he fails to explain how the application judge erred in reaching that result.

[8] In particular, Lalit fails to address the central defect in his application identified by the application judge, namely, that the relief he is seeking is not relevant to any live issue before the court in this proceeding. The case management judge had indeed previously ordered Neera to provide evidence supporting the allegation that Lalit had misappropriated $640,000 from her. But this order had been made in the context of a challenge to the 2021 and 2023 Powers of Attorney, which were no longer in issue. The application judge’s refusal to order an accounting under s. 42 of the SDA was a discretionary decision that was open to him on the basis of the pleadings and the evidentiary record, and we see no palpable or overriding error in the manner he exercised his discretion.

[9] The character of the proceeding changed over time as the appellant abandoned various aspects of the application, only to raise new issues that were not before the court. In the end, there were no active pleadings upon which to adjudicate. It was on this basis that the application judge dismissed the application, and we see no reversible error in his approach. Nor is there any basis on which to admit the fresh evidence tendered by the appellant on appeal.

[10] Accordingly, the appeal as well as the appellant’s motion to adduce fresh evidence is dismissed.

[11] Lalit seeks leave to appeal the costs order on the basis that, while the parties incurred similar full indemnity costs, a substantial portion of his costs were in the form of disbursements rather than legal fees. He further argues that the application judge accepted both respondents’ bills of costs without analysing the dockets, considering overlap between law firms, or the reasonableness of the time claimed.

[12] In our view, the application judge correctly applied the principles of proportionality and reasonableness in coming to his costs determination. He found nothing unreasonable in the costs outlines and bill of costs filed by all parties, noting that this was a fact-based case with very substantial productions and a moving target of relief being sought. Lalit claimed that the respondents’ costs were inflated based on the audio recording of a conversation in which Neera allegedly said that she had not had much interaction with her legal representatives. The application judge considered the surreptitious recording of Neera but gave no weight to it, finding that the events listed in her bill of costs were all assessable expenses many of which would not have needed active communication with her to have been incurred.

[13] Accordingly, we see no basis for appellate intervention and deny leave to appeal the costs order.

[14] In accordance with the agreement of the parties, the respondents are entitled to costs of the appeal in the total all inclusive amount of $35,000.

“B. Zarnett J.A.”

“P.J. Monahan J.A.”

“R. Pomerance J.A.”

Footnotes

[1] Bhupinder passed away on February 22, 2024, some months after the release of the application judge’s endorsement.

[2] In connection with the power of attorney granted by Neera he specifically sought to withdraw his challenge “without prejudice to the ability to challenge…any actions taken under the power of attorney when it is activated.”

[3] In his original application, Lalit had claimed that Anu had procured the 2021 and 2023 Powers of Attorney through undue influence, by falsely alleging that Lalit had misappropriated $640,000 of Neera's money. With Lalit having abandoned his challenge to Neera's powers of attorney, there was no legal basis for him to claim a declaration in the abstract that he had not misappropriated money from Neera.

[4] There is a separate motion by Neera seeking to adduce fresh evidence on the passing of Bhupinder. We do not find it necessary to rely on the fresh evidence from either party to decide this appeal and therefore do not rule on this motion.