SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-09-451
DATE: 2012/06/18

RE: SCOTT WRAY ANDERSON and SUNNY ANDERSON – Applicants

JESSIE MARACLE J. JAMIESON and SANDRA DRINKWATER MONTERO and RAUL MONTERO also known as RAULY (RAULEE) MONTERO and KATHY LYNN RENE - Respondents

BEFORE: Justice D.A. BROAD

COUNSEL:
Paul J. Osier, for the Applicants

SANDRA DRINKWATER MONTERO and RAUL MONTERO also known as RAULY (RAULEE) MONTERO, Self-represented

DATE HEARD: May 18, 2012

E N D O R S E M E N T

[ 1 ] This matter was commenced by a Notice of Application issued June 16, 2009, which was not accompanied by any Affidavit material, nor did it recite the grounds upon which it was brought or the documentary evidence upon which it relied.

[ 2 ] The Notice of Application was amended on August 11, 2009. The Amended Notice of Application similarly does not recite the grounds nor state the documentary evidence in support of the relief sought, however, it is included in an Amended Application Record which also contains an Affidavit of one of the Applicants Scott Wray Anderson sworn June 5, 2009.

[ 3 ] The Amended Notice of Application seeks an Order:

(a) Terminating the Powers of Attorney for property and personal care purportedly granted by Jessie Maracle Jamieson (“Ms. Jamieson”) to the Respondents Sandra Patricia Drinkwater Montero (“Sandra”) and Raul Montero (“Raul”);

(b) Declaring Ms. Jamieson to be incapable in managing property and/or making health care decisions;

(c) Appointing one of the Applicants Scott Wray Anderson (“Wray”) as guardian of property and for health care decisions on behalf of Ms. Jamieson;

(d) Requiring Sandra and Raul to provide an accounting of their dealings under the Powers of Attorney, if they hold same; and

(e) Further corollary relief.

[ 4 ] Sandra and Raul delivered responding affidavits, each sworn August 14, 2009, in response to which two affidavits were delivered on behalf of the Applicants, being a further Affidavit of Wray and an Affidavit of Larry McDermott, each sworn December 14, 2009.

[ 5 ] Various interlocutory orders have been made in the proceeding, the most noteworthy of which, for the purposes of this Motion, was the Order of Justice Ramsay, made on consent of the parties dated February 12, 2010 that there be a trial “on the issues of the validity of the Power [ sic ] of Attorney currently held by Sandra Patricia Drinkwater Montero and on the issues of an accounting including assets and chattels removed by any of the parties.” The Order further provided that the parties “have examinations for discovery, if so advised”, and the “action” may be set down for trial by passing a record of the pleadings, which was ordered to be “constituted by the existing application record and supporting affidavits for the applicants and by the motion record of the respondents and supporting affidavits.” Finally, the Order provided that “the status quo of the existing power of attorney in favour of Sandra Montero and Raul Montero shall continue until further court order or agreement of the parties.”

[ 6 ] Examinations for discovery of the Respondents were conducted in May and December, 2011. The Applicants now move for an Order:

(a) terminating the Power [ sic ] of Attorney from Ms. Jamieson held by Sandra and Raul;

(b) Requiring Sandra and Raul to pay into court or into the estate bank account for Ms. Jamieson the sum of $47,000.00 received from the sale of her house;

(c) Appointing Wray as the guardian for property and for the person of Ms. Jamieson; and

(d) Various corollary relief.

[ 7 ] The Notice of Motion includes, among the grounds on which it is brought, various sections of the Substitute Decisions Act, S.O. 1992, as amended, however, it does not set forth any Rule relied upon for seeking summary relief, particularly in the face of the consent Order of Justice Ramsay directing a trial of the issues. In argument, counsel for the Applicants indicated that the Motion was made under Rule 20.

[ 8 ] It is noteworthy that nowhere in the Applicants’ Motion Record, nor in their Factum, was the Court’s attention drawn to the existence of the consent Order of Justice Ramsay directing a trial of the issues. It was necessary for the Court to undertake a review of the file to discover the existence of that Order.

[ 9 ] Rule 20.01(1) specifically provides that “the Plaintiff may…move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in the statement of claim.” The Court has not been directed to any authority for the utilization of Rule 20 to seek summary judgment in a proceeding commenced by Notice of Application, and in respect of which a trial of the issues has been directed. The use of Rule 20 appears, on its face, to be restricted to actions commenced by statement of claim.

[ 10 ] There is nothing in the motion material of the Applicants to suggest that there has been any material detrimental change in the situation of Ms. Jamieson, insofar as her personal care is concerned, subsequent to the Consent Order of Justice Ramsay having been made. At its highest, the only change in circumstances has been the allegation that the accounting provided by Sandra and Raul is deficient, as revealed by their examinations for discovery. However the accounting is one of the issues directed to be tried by the Order. There does not appear to be any apparent urgency requiring that matter to be dealt with in a summary manner, the issue having been directed to be tried.

[ 11 ] It is noted, in addition, that the other issue which was directed to be tried is not whether the Powers of Attorney given by Ms. Jamieson in favour of Sandra and Raul should be terminated, as is sought on the motion, but rather their “validity”.

[ 12 ] For the reasons set forth above, I find that, the issues having been directed to be tried, the Court lacks jurisdiction to grant summary judgment pursuant to Rule 20, or otherwise. It was therefore not necessary for Sandra and Raul to deliver affidavit material to the motion and to “put their best foot forward” in response to the motion. During the course of the argument Sandra and Raul sought leave to late file an Affidavit of Raul, sworn May 16, 2012, in response to the motion, upon which request I reserved decision. Mr. Osier, on behalf of the Applicants, sought leave to file responding affidavit material, if leave were granted to admit Raul’s affidavit. The Applicant’s affidavit material consisted of an Affidavit of Diane Longboat, sworn July 18, 2011, the Affidavit of Larry McDermott sworn December 14, 2009 (already filed, as indicated above), an Affidavit of Larry Deacon, sworn November 4, 2009, and a further Affidavit of Wray sworn May 23, 2012.

[ 13 ] In light of my finding that the Court lacks jurisdiction to entertain the motion, it is not necessary to admit any of this affidavit material for the purposes of the motion.

[ 14 ] In the event that I am wrong with respect to the Court’s jurisdiction to hear the motion, I find that the affidavit material filed in this proceeding to date indicates an almost complete disagreement between the parties on virtually every material fact, including allegations on both sides that the care provided to Ms. Jamieson by the opposite parties at various times was detrimental to her welfare, and, amongst other things, allegations of self-interested and improper motives ascribed to the opposing parties in their dealings with Ms. Jamieson and her property. The record is replete with unresolved direct issues of credibility between the two sides, which are not capable of resolution, even with the assistance of the expanded powers given to the Court on a motion for summary judgment pursuant to sub-rule 20.04(2.1).

[ 15 ] Given that the proceeding was commenced by Notice of Application, with affidavit material having been filed on both sides, in the event that Rule 20 has any application (which I have found that it does not), I hold that the Court is entitled to have regard to all of the affidavit material filed in support of, and in response to, the Application, not just the affidavit material filed on the motion. On the basis of all of the affidavit material, the Court is not in a position to have a full appreciation of the issues and the evidence in order to make dispositive findings in the absence of a trial. It is evident that the parties were in agreement that a trial was necessary when they consented to an order directing a trial of the issues, and that it was appropriate to maintain that status quo, pursuant to the powers of attorney in favour of Sandra and Raul pending the trial.

[ 16 ] The Applicants’ Motion is therefore dismissed.

[ 17 ] The parties may make brief submissions with respect to costs, the Respondents Sandra and Raul within 21 days hereof, and the Applicants within 21 days hereof.

Broad J.

DATE: June 18, 2012