SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-13-475645
DATE: 20140430

RE: The Public Guardian and Trustee, Applicant

AND:

Mark Stronach, John Doe #1, John Doe #2, Jane Doe #1 and Jane Doe #2 Respondents

BEFORE: Carole J Brown J

COUNSEL: Ariel Schneider, for the Applicant

Mark Stronach, appearing on his own behalf

HEARD: March 13, 2014

ENDORSEMENT

The Application

[1] The applicant, the Public Guardian and Trustee ("PGT), the guardian of the property of Joanna Tollis pursuant to the Substitute Decisions Act, 1992 ("SDA"), brings this application for an Order granting leave to the applicant to issue and enforce a writ of possession against the respondents with respect to the property municipally known as 62 Santamonica Boulevard, Toronto, Ontario. It is the position of the PGT that, as guardian of property of Ms. Tollis, they are, pursuant to the SDA, the only person authorized by law to deal with Ms. Tollis’ legal and financial affairs involving property. Mr. Stronach was found to be residing at Ms. Tollis’ residence, although the PGT had not rented to him or otherwise authorized him to reside in the property, and accordingly, they seek an Order to have him removed.

[2] Mr. Stronach appeared at the hearing and seeks to have the application dismissed, such that he can continue to reside in the residence of Ms. Tollis.

The Background Facts

[3] The evidence indicates that on March 25, 1998, the PGT became the statutory guardian of property for Ms. Tollis, now aged 64, pursuant to a Certificate of Incapacity and a Notice of Continuance dated July 30, 1998 pursuant to the SDA. 62 Santamonica Boulevard, where Ms. Tollis resides, was held in tenancy in common by Ms. Tollis, who held a one third interest in the property, and her brother, Anthony Tollis, who held a two thirds interest. They both resided in the property.

[4] Mr. Tollis died intestate in 2010 and left two sisters, Ms. Tollis and Connie Fleming, who resides in Nevada.

[5] At some time prior to his death, Mr. Tollis invited Mr. Stronach, a young man who had resided in the neighbourhood and had purportedly left or been told to leave his parents' residence and was without a place to stay, to live with them. There was evidence to suggest that he was homeless at the time. Mr. Stronach denies this explanation of how he came to reside at the Tollis’ residence, and states that he and his girlfriend had broken up and that Mr. Tollis offered him a place to stay. There is some evidence to indicate that this was intended to be on a short-term basis. The evidence further indicates that his parents also lived on Santamonica Boulevard, at number 47, only a short distance from the Tollis' residence.

[6] After Mr. Tollis' death in 2010, Mr. Stronach continued to reside at the residence of Ms. Tollis. Based on the evidence, at one point he invited four others to reside with him, although he states that they are no longer in the residence.

[7] The PGT submits that Mr. Stronach does not have an agreement with them to reside in the property, that his presence has increased the monthly utility costs of what is a very small estate and that he has taken advantage of a vulnerable individual, Ms. Tollis. There is some evidence of the fact that Mr. Stronach has Ms. Tollis’ bank card and has made withdrawals and placed charges on the said card, including regular purchases of beer. The PGT raises concerns about her vulnerability in this regard.

[8] As regards the property, the PGT indicates that an annual inspection conducted on December 23, 2011, indicated that the property was badly in need of repair, that a new roof was required, that there were issues of water damage, repairs necessary to the floor, a cracked driveway, broken fence and uninspected furnace. Further, it was noted that bedbugs were evident in the home. A more recent inspection, conducted February 19, 2014 indicates that "Old water damage to the second-floor hallway ceiling is visible. The roof has been patched and tarped but tarp has been destroyed by wind. Roof is not currently leaking. The house is otherwise in fair condition."

[9] On behalf of the PGT and their concerns as regards her vulnerability, their evidence indicates that a family friend had contacted them after having visited Ms. Tollis in her home. The family friend, Mr. Grigoriadis, who was present in the courtroom at the hearing, reported that upon his visit, he noted that the house was in very poor shape and that Ms. Tollis seemed afraid and intimidated by Mr. Stronach. Mr. Grigoriadis had expressed concern that Mr. Stronach does not pay for rent, assist in any way in the upkeep of the home, has no financial means to support himself and lives from Ms. Tollis' limited funds which she receives from the Trustee. Mr. Stronach confirmed in oral argument that he does not have a job, but indicates that he is a "busker" on weekends. There is further evidence, included in the PGT application record in the form of correspondence from Mr. Grigoriadis that Ms. Tollis advised him that she wanted Mark out of her home, that her brother had invited him in, but only for a short stay. According to the correspondence from Mr. Grigoriadis, "Joanne is intimidated by Mark, afraid of him, and unable to stand up to him. He manipulates her, controls her and he is easily able to sway her to do and say anything he wishes her to do and say".

[10] Ms. Tollis receives assistance from the Canadian Mental Health Association ("CMHA"). She has a primary worker through the CMHA, and is provided services to optimize her mental health and continuity of care. According to affidavit evidence from the CMHA primary care worker, Wayne Gray, Ms. Tollis, who has been diagnosed with schizophrenia, the onset of which was at age 26, has been involved with the Canadian Mental Health Association ("CMHA") since 2000, and has been a part of the New Dimensions Assertive Community Treatment Team ("the ACT team") since 2001. Ms. Tollis’ team comprises four nurse case managers, an occupational therapist, two social workers, two case managers, a psychiatrist and a team leader manager. The services provided include scheduled assessments and medical reviews with team psychiatrist; home visits by nursing staff to provide education and information around medications when necessary; home delivery of all required medications; face-to-face home visits for the purposes of assessment and support; staff accompaniment and transportation to all necessary medical appointments; and communication with the PGT to assist in financial matters when necessary.

[11] Mr. Gray, in his affidavit, indicates that Ms. Tollis’ "basic skills are intact and she does not require around-the-clock supervision for either medical assistance or basic living tasks." He did not have concerns with her ability to perform daily living activities such as cooking, cleaning and grocery shopping. This is confirmed by the family friend, Mr. Grigoriades. Mr. Gray further indicated in his affidavit that, in the event that she were required to have more assistance in the future, that would be provided by CMHA.

[12] As indicated above, concern has been raised as regards Ms. Tollis’ finances (which comprised basically the home) and access by Mr. Stronach to her bank account through a bank access card. Banking records were produced which indicate numerous withdrawals per month as well as other debits, including numerous Interact purchases at The Beer Store. Mr. Stronach advises that he accesses her account to purchase items for her. He stated that she liked beer and drank a lot of it.

[13] Mr. Stronach seeks to remain in the home. He stated in his submissions that he looks after her, as she does him, that he does repairs around the home, ensures that she has what she needs and gives her her daily eye drops. Contrary to the evidence of the PGT and CHMA, Mr. Stronach indicates that she needs someone in the home to assist her and that he is ready and willing to do that.

[14] Mr. Stronach submits that he provides outstanding care for Ms. Tollis, that he obtains food from the food share program and also buys Ms. Tollis clothing at the thrift shop at his church. He submits that he has repaired equipment in the home, has fixed plumbing, the washer and has done other home repairs over the years. He submits that he does cleaning, dishes and other home maintenance. He eats dinner most evenings with his girlfriend rather than with Ms. Tollis.

[15] He stated that he and Ms. Tollis have a strong bond, and stated in oral submissions that he is one true friend to Ms. Tollis. He does not wish to leave her alone in the home.

[16] He introduced evidence in support of his request to stay in the home from the pastor of his church, of which he has been a member for six years, who attested to his willingness to care for Anthony Tollis and his sister, Ms. Tollis. He further introduced evidence from an acquaintance of Mr. Stronach who testified that he often gave advice to Mr. Stronach as to home repairs and equipment. He also provided a letter from Connie Fleming, the sister of Anthony and Joanne Tollis, thanking him for taking care of Ms. Tollis. She subsequently wrote a letter, included in the affidavit of the PGT, indicating that, at the time of writing to Mr. Stronach the letter that was included in his materials, she was not aware of the state of affairs, as her deceased brother had provided limited information to her. She indicated she did not personally know Mr. Stronach and had never met him. She indicated that in a letter from Mr. Stronach to her and in a telephone conversation with Mr. Stronach, he stated that Ms. Tollis wanted to "give him the house", and that he had discussed the value of the house with his friends. She indicated that she was advised by several sources, including Mr. Stronach, that the house was in bad shape and required repairs. She indicated that there are no funds for the repairs and therefore she approved the sale of the house. She expressed her concern as regards Ms. Tollis’ best interests.

The Substitute Decisions Act

[17] Pursuant to the SDA s.31(1), "the guardian of property has power to do on behalf of the incapable person anything in respect of property that the person could do if capable, except make a will." Pursuant to s.32(1), "a guardian of property is a fiduciary whose powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person's benefit."

[18] While Mr. Stronach submits that he should be permitted to remain in Ms. Tollis’ residence in order to care for her and keep her company, I find evidence to indicate that this would not be in Ms. Tollis’ best interests.

[19] As regards Ms. Tollis residing alone without the presence of Mr. Stronach, the evidence indicates that CMHA provides her with ongoing assistance and assessment and has no concerns about her abilities to perform activities of daily living. I had requested additional information from the PGT regarding the provision of assistance in the future, should Mr. Stronach no longer reside in the residence. Based on this request, more evidence was filed, including the affidavit evidence of Mr. Gray, the primary care worker, dated March 20, 2014, which indicates that if Mr. Stronach were removed from the property, the ACT team assigned to Ms. Tollis would perform an assessment to determine if Ms. Tollis required any additional services or an increased frequency of visits, that the occupational therapist would assess whether she required assistance with every day activities such as cooking, cleaning and grocery shopping and that, in the event she did require any additional assistance, they would make the necessary arrangements.

[20] While I have considered Mr. Stronach's submissions that he assists Ms. Tollis around the house, and that he is a good friend to her, I am satisfied, based on the evidence of the CMHA that sufficient provision is being made for Ms. Tollis and will continue to be made for her in the event that Mr. Stronach no longer resides with her.

[21] The PGT, as guardian of property has the statutory powers to deal with the residence in the best interests of Ms. Tollis. It has assessed her situation and considers that, in her best interests, Mr. Stronach, who is not residing in the home as a paying tenant, should vacate the premises. They have requested that this be done which is opposed vigorously by Mr. Stronach.

[22] I have concerns about Ms. Tollis’ best interests, based on the PGT’s evidence before me, and am of the view that it is in her best interests that Mr. Stronach leave her home.

[23] Based on all of the evidence before me, I grant the PGT's application and order as follows:

(i) that leave is granted pursuant to Rules 60.03 and 60.10 of the Rules of Civil Procedure for the issuance of a writ of possession of 62 Santamonica Boulevard, Toronto, Ontario, in favour of Joanna Tollis, effective as of the date of this Order;

(ii) that the Enforcement Office is hereby directed to enforce possession in favour of Joanna Tollis.

Costs

[24] I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the Costs outline. The submissions may be forwarded to my attention, through Judges' Administration at 361 University Avenue, within thirty days of the release of this Endorsement.

Carole J. Brown J.

Date: April 30, 2014