COURT FILE NO.: 03-35/09 and CV-10-0 0412442-000

DATE: 2012-01-30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DEANN PARKER

Applicant

• and -

DOROTHY JANE FOCKLER, DEVRA PARKER, RHYS FOCKLER, DUNCAN MILLER, ARMSTRONG & QUAILE ASSOCIATES INC. – META FINANCIAL, TD CANADA TRUST, DR. MARTIN LEESEMENT, BARRY KATZ, AND THE PUBLIC GUARDIAN AND TRUSTEE (Court file 03-35/09)

Respondent

AND RE: SWADRON ASSOCIATES

Applicant

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DOROTHY JANE FOCKLER (Court File CV-10-00412442-000)

Respondent

BEFORE: KRUZICK J.

COUNSEL:
Jerry Herszkopf , for the Respondent Rhys Fockler

Richard Coutinho , for the Applicant the Public Guardian and Trustee

Rebecca Studin, for the Respondent Shael Eisen

Gaetana Campisi, for the Respondent Alanna Kaye

Valerie Edwards, for the Applicant Marshall Swadron

Clare E. Burns and Mandy Seidenberg, for the Respondent Dorothy Jane Fockler

Charles Wagner, (former counsel for the Applicant Deann Parker) on his own

behalf

HEARD: JANUARY 18, 2012

ENDORSEMENT

[ 1 ] Returnable before me are two motions brought by the respondents Rhys Fockler and Dorothy Jane Fockler. They seek:

(i) Leave to move for costs under R.57.07 as against Marshall Swadron and Charles B. Wagner, solicitors involved in these proceedings; and

(ii) for a consolidation of actions commenced by Rhys Fockler to be tried with the issues now before the court.

[ 2 ] On December 19 and 28, 2011, Quigley J. ordered that the Public Guardian and Trustee (PGT) appoint counsel for Mrs. Dorothy Fockler. The PGT appointed Ms. Clare Burns and Ms. Mandy Seidenberg as counsel pursuant to s.3 of The Substitute Decisions Act, 1992 , S.O. 1992, c.30 ( s.3 counsel) as counsel to ensure that her interests were represented on the motions returnable before me on January 18, 2012.

[ 3 ] Section 3 counsel were not able to make submissions on the two motions before me because they were not able to meet with Mrs. Fockler despite several efforts to do so. As a result of frustrated attempts to comply with Justice Quigley’s orders a preliminary motion was brought by s.3 counsel for the following relief:

(a) an abridgment of time for service of the motion;

(b) leave to bring this motion pursuant to R.48.04(1); and

(c) an order:

(i) directing that there be a hearing to determine whether Dorothy Jane Fockler requires a litigation guardian in these proceedings and if so to establish a timetable for that motion;

(ii) directing that, if Dorothy Jane Fockler is found to require a litigation guardian, the Public Guardian and Trustee be appointed; and

(iii) directing that Dorothy Jane Fockler’s s.3 counsel shall provide an affidavit to the Court for the purposes of the motion that sets out their privileged communications with Dorothy Jane Fockler since December 23, 2011 and that the affidavit be sealed in the Court record consistent with section 137(2) of the Courts of Justice Act , R.S.O. 1990, c.C43.

[ 4 ] Justice Quigley released the endorsement that put the appointment in place on December 28, 2011 following an appearance on December 19, 2011. On December 23, 2011, prior to the release of the endorsement, Rhys Fockler sent an e-mail saying that Jerry Herszkopf had been retained on behalf of Mrs. Fockler. Mr. Herszkopf is also his counsel. On December 30, 2011, Mr. Herszkopf sent Notice of his appointment as counsel for Mrs. Fockler.

[ 5 ] Given these developments, Justice Quigley held a conference call on January 3, 2012 regarding Mrs. Fockler’s representation.

[ 6 ] By letter dated January 4, 2012, Justice Quigley set out that Ms. Burns and Ms. Seidenberg of WeirFoulds LLP were to meet with Mrs. Fockler to determine whether, in fact, it was Mrs. Fockler’s independent wish to be represented by Mr. Herszkopf. Mr. Fockler and Ms. Cartwright, Mr. Fockler’s spouse, were to facilitate that meeting.

[ 7 ] Since the release of those endorsements, Ms. Burns and Ms. Seidenberg have attempted to arrange a meeting with Mrs. Fockler, but have been unable to do so.

[ 8 ] Ms. Burns and Ms. Seidenberg spoke with Mrs. Fockler on the telephone on January 11, 2012, when Mrs. Fockler stated she was “too busy” to meet with Ms. Burns and Ms. Seidenberg.

[ 9 ] On January 12, 2012, Ms. Burns and Ms. Seidenberg attempted to attend at Mrs. Fockler’s residence. Mr. Rhys Fockler met them in the driveway, and informed them that Mrs. Fockler did not want to see them and he would call the police if they did not leave.

[ 10 ] It is alleged that Mr. Rhys Fockler is obstructing the efforts of s.3 counsel to meet with his mother, as ordered by Justice Quigley.

[ 11 ] Based on the events set out in the Affidavit of Natalie Damiano sworn January 17, 2012. Ms. Burns and Ms. Seidenberg made submissions that they believe Mrs. Fockler is not free of undue influence in her decisions respecting counsel and that she has not received the legal advice as this court ordered.

[ 12 ] On this motion brought by s.3 counsel, Mr. Rhys Fockler was represented by counsel, Mr. Jerry Herszkopf (also counsel on the R.57.07 costs motion).

[ 13 ] Mr. Fockler also appeared in person on the consolidation motion and made his submissions. Mr. Fockler, together with the other parties, was short served with notice of the motion now brought by s.3 counsel.

[ 14 ] In the circumstances I am satisfied s.3 counsel had no other options. Mr. Fockler expressed that his mother was not present in court and as such she had no notice of this new motion. The point is validly made. She was however aware of the January 18, 2012 return date. Mr. Fockler indicated she could attend in the afternoon. Mr. Fockler then brought Mrs. Fockler to court in the afternoon. With the assistance of Mr. Herszkopf and Mr. Fockler, Mrs. Fockler was served with the new motion now before me.

[ 15 ] Following service of Mrs. Fockler, s.3 counsel requested that a further meeting be arranged for them and Mrs. Fockler. This meeting was set for Thursday January 19, 2012, at 2:00 pm. I confirmed with Mrs. Fockler, who was present in the courtroom, that a meeting was set for the next day and that she would attend that meeting. She so confirmed.

[ 16 ] After hearing submissions of counsel and Mr. Rhys Fockler I conclude that an appointment of a litigation guardian for Mrs. Fockler may be necessary and that the motion brought by s.3 counsel was properly brought. I am satisfied that the appointment of a litigation guardian pursuant to the purposes of R.7.01: to protect the integrity of the judicial process for all participants in the litigation, and to protect the interests of Mrs. Fockler, should proceed in the circumstances of this case.

[ 17 ] The action is now set down for trial and therefore R.48.04 governs so that leave is required for any fresh step in the action.

[ 18 ] I agree with counsel that, given their s.3 counsel status, leave to bring this motion may technically not be required. In the event I am wrong, in exercising my discretion, I considered all of the facts and circumstances on the issue of leave to bring this motion. I find that there has been a substantial and unexpected change in circumstances since the November 3, 2012 order, which set this matter down for trial. The recent appointment of new s.3 counsel for Mrs. Fockler, the endorsements of Justice Quigley, to which I have referred, as well as these recent developments, I find, all warrant granting leave so that the motion may proceed.

[ 19 ] Accordingly on January 18, 2012 the record was endorsed as follows:

January 18, 2012

S.3 counsels’ motion is adjourned to Feb. 1, 2012. In the meantime an appointment has now been scheduled for tomorrow Jan. 19, 2012 at 2 pm for s.3 counsel to meet with Ms. Fockler in a facility to be provided in the building at 330 University Avenue at P/T Rm. 2 on the 9th floor. The remaining motions as they relate to Ms. Fockler are adjourned to that date.

[ 20 ] This motion by s.3 counsel and the remaining motions therefore stand adjourned to February 1, 2012.

KRUZICK J.

RELEASED: January 30, 2012