SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 1047-2012
DATE: 2014/04/07

IN THE ESTATE OF ALBAN PICARD, deceased

RE: Raymond Picard, Applicant (Moving Party)

AND

Marguerite Landry, Lise Picard and Suzanne Picard, Respondents

BEFORE: Mr. Justice Marc R. Labrosse

COUNSEL:
Marcia A. Green, for the Applicant (Moving Party)
Louise Landry, Self-Represented

HEARD: March 21, 2014

ENDORSEMENT

[1] This is a motion brought by Louise Landry to set aside or vary the Order for Directions of Justice Charbonneau dated January 24, 2014 pursuant to Rule 37.14(1) of the Rules of Civil Procedure. There is also before the Court a Cross‑Motion filed by Raymond Picard seeking an order to strike the Motion of Louise Landry on the basis that Louise Landry does not have standing to bring the motion.

[2] The Court heard extensive submissions from Louise Landry and counsel for Raymond Picard, with respect to Ms. Landry’s standing in the proceedings involving the Estate of Alban Picard, together with the various grounds for relief sought by Louise Landry in her Notice of Motion.

[3] During her submissions, Louise Landry confirmed that she was seeking the relief as an affected person, pursuant to Rule 37.14(1)(a) in her personal capacity or alternatively as she stated, as an affected party “through her mother, Marguerite Landry”. Marguerite Landry is already a party to the proceedings involving the Estate of Alban Picard. Louise Landry relies on the provisions of a Power of Attorney granted to her by Marguerite Landry and stated that the Power of Attorney gives her standing to seek the relief requested “through her mother”. On this point, I find that the Power of Attorney does not create a right for Louise Landry to seek relief in these proceedings. An attorney cannot advocate on behalf of the grantor of a Power of Attorney but must retain counsel to act as the advocate for the grantor. (see Gagnon v. Pritchard, 2002 49419 (ON SC), 58 O.R. (3d) 557. I find that Louise Landry does not have standing in these proceedings “through her mother” by way of the Power of Attorney granted to her by Marguerite Landry.

[4] This leaves Louise Landry’s only ability to have standing in the proceedings involving the Estate of Alban Picard in her personal capacity. She claims to be a person who is affected by the Order for Directions and that she can seek to have the Order for Directions varied, pursuant to Rule 37.14(1)(a). Louise Landry alleges that she is an affected party given that she is an eventual successor to Marguerite Landry. Paragraphs 2 and 3 of the Order for Directions refer to the “successors” of Marguerite Landry in setting out the obligation to provide documentary disclosure on matters relating to the Estate. Louise Landry provided no authority in support of her position. I am of the view that a possible successor to Marguerite Landry is not an affected person as contemplated by Rule 37.14(1). Further, Louise Landry confirms that she does not have any of the documents which are contemplated in paragraphs 2, 3 or 4 of the Order for Directions in her possession, power or control. As such, the Order for Directions does not affect her.

[5] Pursuant to Rule 75.06(1), Louise Landry is not a person who appears to have a financial interest in the Estate. The Holograph Will of the late Alban Picard does not refer to Louise Landry. No claim for dependent’s relief has been made by Louise Landry and she did not allege to have been a dependent of Alban Picard.

[6] I conclude that Louise Landry does not have standing to seek the relief sought in her Notice of Motion. The Respondent’s cross‑motion to strike out the Motion of Louise Landry is therefore granted.

[7] In the event that I am wrong on the issue of standing, I will address the claims for relief by Louise Landry as set out in her Notice of Motion. Louise Landry has made a number of allegations in relation to the Order for Directions of Justice Charbonneau and the previous Order of Justice Annis, which should be addressed in order to allow the matters relating to the Estate of Alban Picard to proceed in an orderly and efficient manner. While the relief sought in the Notice of Motion is drafted in such in such a way that it is difficult to determine the actual relief being sought, I reviewed paragraphs (a) to (k) with Louise Landry in detail during the motion (with the relief sought in para. (l) being withdrawn). The relief sought, as stated by Louise Landry during the motion, can be summarized as follows:

a) To order that Form 74.12 should not have been used as part of the Application for Certificate of Appointment;

b) To require the Estate Trustee Raymond Picard to obtain a bond pursuant to section 35 of the Estate Act;

c) To vary paragraphs 2 to 6 of the Order for Direction of Justice Charbonneau dated January 24, 2014;

d) To require Raymond Picard to file a Notice of Change of Solicitor as a result of Marcia Green being listed as counsel on documents.

Form 74.12

[8] Louise Landry seeks an order that the Application for Certificate of Appointment of Estate Trustee with a Will should not have included Form 74.12. She states that this is not the proper form to have been used in this type of application. Marguerite Landry did not sign Form 74.12. I fail to see any prejudice caused to Louise Landry or to Marguerite Landry as a result of this form having been included in the application. As the Order for Directions issued the Certificate of Appointment of Estate Trustee to Mr. Picard and that the Order for Directions has not been appealed, the relief requested on this issue is denied.

Requirement to Obtain a Bond

[9] Louise Landry confirmed that during the Motion for Directions, Marguerite Landry requested that Justice Charbonneau require that Raymond Picard obtain a bond for the administration of the Estate. No such obligation was included in the Order for Directions. No appeal was filed by Marguerite Landry against the Order for Directions. Further, the Affidavit of Louise Landry does not disclose any legitimate grounds which would suggest that a bond is required. It is noted that the Affidavit of Raymond Picard, which was filed for the Motion for Directions, included an Undertaking by Raymond Picard’s solicitors to hold back the net proceeds of sale of a property sold by the Estate until an agreement is reached with Marguerite Landry or until further order of the Court. I do not find that there are reasonable grounds upon which a bond should be required. The request to vary the Order for Directions and require that a bond be obtained is denied.

An Order Varying Paragraphs 2 to 6 of the Order for Directions

[10] The main argument advanced by Louise Landry is that she is a successor to Marguerite Landry and that paragraphs 2, 3 and 4 of the Order for Directions affect her personally. I disagree. Sections 2 and 3 could only apply to her as a successor of Marguerite Landry after the death of Marguerite Landry. Paragraph 4 makes no mention that it would apply to successors. Further, Louise Landry confirms that she has none of the documents referenced in paragraphs 2, 3 or 4 in her possession. As such, those sections could never apply to her. Although paragraph 4 does not specifically mention that it applies to documents in Marguerite Landry’s “possession, power or control”, it is clear to me that it is the intention of paragraph 4 and that those words were simply omitted. There are no grounds which would justify any variation to paragraphs 2, 3, 4 or 5 of the Order for Directions and, as such, the relief claimed is denied.

[11] As for paragraph 6 of the Order for Directions, Louise Landry confirmed that dependent’s relief claim of Marguerite Landry was drafted and ready to be served and filed in accordance with paragraph 6 of the Order for Directions. Further, the timelines set out in paragraph 6 of the Order for Directions were not appealed and there are no grounds upon which I should vary them. The request to vary paragraph 6 of the Order for Directions is denied.

[12] Notice of Change of Solicitor: While this ground was not actively pursued during the motion, it should be noted that Marcia Green and John Johnson are members of the same firm. There are no grounds upon which Raymond Picard could be compelled to file a Notice of Change of Solicitors as the firm of Nelligan O’Brien Payne LLP continues to be the solicitors of record. The relief sought at paragraphs (j) and (k) of the Notice of Motion are denied.

*Conclusion*

[13] While I have concluded that Louise Landry does not have standing to bring this Motion, I have also addressed the relief requested in the Notice of Motion. The Motion of Louise Landry is therefore dismissed in its entirety and as previously stated, the Cross‑Motion of Raymond Landry is allowed.

Costs

[14] Both parties submitted a Costs Outline at the end of the motion. Rule 57.03(1) provides that costs should be fixed on hearing of a contested motion unless a different order would be more just. I am not aware of any circumstance which would justify a departure from the Court’s usual practice although the courts have often taken a different view in estate matters when dealing with costs. The motion of Louise Landry was ill‑conceived and should not have been brought. Louise Landry has caused the Estate of Alban Picard to incur legal fees to oppose a motion which had no merit. In light of these facts, I exercise my discretion and reduce the amount of costs, which would normally be awarded on such a motion, in the hope that Louise Landry now understands that she should be seeking legal advice prior to commencing legal proceedings. Louise Landry is ordered to pay costs fixed in the amount of $1,000.00 plus HST and plus disbursements (and applicable HST) in the amount of $253.09.

Mr. Justice Marc R. Labrosse

Date: April 7, 2014

L’ORIGNAL COURT FILE NO.: 1047-2012

DATE: 2014/04/07

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE ESTATE OF ALBAN PICARD, deceased

RE: Raymond Picard, Applicant (Moving Party)

AND

Marguerite Landry, Lise Picard and Suzanne Picard, Respondents

BEFORE: Mr. Justice Marc R. Labrosse

COUNSEL: Marcia A. Green, for the Applicant (Moving Party)

Louise Landry, Self-Represented

ENDORSEMENT

Labrosse J.

Released: April 7, 2014