SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 03-15/12

DATE: 20140918

RE: Michael Caplan, Applicant

AND:

Dorothy Sugarman and The Public Guardian and Trustee, Respondents

BEFORE: Penny J.

COUNSEL:
W. Parker for the Applicant

D. Schatzker for the Objector, Andrea Marcus

HEARD: September 15, 2014

ENDORSEMENT

[1] This is an application to pass accounts concerning the guardianship of Dorothy Sugarman. Ms. Sugarman died on February 5, 2014.

[2] This matter came before me at a 9:30 scheduling appointment on July 2, 2014. At that time, the Objector, Ms. Marcus, sought production of evidence of certain annuities being paid to Ms. Sugarman. I authorized Ms. Marcus to obtain that information directly from the relevant financial institutions at her own cost. This was done promptly following the 9:30 attendance.

[3] At the return of the application on September 15, 2014 (a date fixed at the 9:30 appointment on July 2, 2014) Mr. Schatzker sought an adjournment. He first complained that he had only recently been served with a large supplementary record by the Applicant. The supplementary record was promptly withdrawn.

[4] Then, Mr. Schatzker submitted that he was not prepared to argue the application as he was under the impression that only preliminary motions would be dealt with at the hearing. There was no evidence offered in support of this proposition. My endorsement of July 2 was clearly made to pave the way for the argument of this application, which had already dragged on for far too long. There was no discussion at the July 2 9:30 appointment of pending motions and there is no reference in my endorsement to pending motions. In addition, there were, in any event, no motions brought by anyone returnable on September 15, 2014.

[5] Finally, Mr. Schatzker sought an adjournment to cross-examine the Applicant, Michael Caplan. Again, no mention was made of this at the July 2 9:30 appointment. No request was made to build this into the schedule.

[6] The right to cross-examine must be exercised with reasonable diligence. Mr. Schatzker sought to argue that he could only cross-examine after he filed his own material and that he had only recently filed Ms. Marcus’s affidavit. In my view, however, Mr. Schatzker cannot rely on his own delay in filing responding material to support delay in exercising the right to cross-examine.

[7] Mr. Schatzker also submitted that he wanted the cross examination to take place in open court by way of the trial of an issue. No mention was made of this idea at the July 2 9:30 appointment and no motion or other request of this nature was ever made before this matter was called for hearing on September 15, 2014. No arrangements were made by Mr. Schatzker for the presence of reporter.

[8] Finally, Mr. Schatzker submitted that the purpose of the cross examination was to establish that the Applicant had not performed any analysis of Jackie Caplan’s conduct as Ms. Sugarman’s attorney for property while she held that role up to 2011. There was, however, no evidence of any such investigation in the record. The Applicant’s whole point on this application was that, under the circumstances of this case, he was under no obligation to conduct any such investigation. Accordingly, there is no need to cross-examine the Applicant to establish the lack of any investigation – that fact was admitted.

[9] I concluded that Mr. Schatzker’s request for an adjournment was entirely without merit and, in the circumstances, was made for the purpose of causing further delay and inconvenience to the Applicant. The request was, accordingly, denied.

[10] By Order of C. Campbell J. of March 14, 2014, Ms. Sugarman was declared incapable of managing property and personal care. Michael Caplan was appointed as guardian of property and personal care. The Order approves a management plan and requires the guardian of property to act in accordance with the management plan. Ms. Marcus was a party to those proceedings. She initially opposed Mr. Caplan’s appointment but, ultimately, the Order of C. Campbell J. was made on consent.

[11] Mr. Caplan’s application to pass his accounts is for the period March 14, 2012, when he was appointed by order of this court, to March 14, 2013. Ms. Marcus filed a notice of objection to these accounts.

[12] Ms. Marcus has made four objections to the accounts:

(1) The accounts do not adequately or completely account for the property of Dorothy Sugarman and there are assets of Dorothy Sugarman which are not listed on the accounts.

(2) There are assets of Dorothy Sugarman, including a right of action against the estate of the former power of attorney for Dorothy Sugarman, Jackie Capln, which are not listed on the accounts and it is not clear whether the guardian has taken steps to realize on or take control of these assets.

(3) The accounts do not clearly state the source of the funds which made up the shortfall in expenditures over income and available capital.

(4) The accounts do not particularize the nature of the annuities and investments which make up the property of Dorothy Sugarman.

[13] The reference in objections 1) and 2) to assets not listed and possible claims against Jackie Caplan, who was Ms. Sugarman’s attorney for property until Jackie’s death in 2011, stem from a “belief” harboured by the Objector that Ms. Sugarman was a wealthy woman and that Jackie Caplan (who is Ms. Sugarman’s daughter and Ms. Marcus’s sister) stole from their mother during the period of time Jackie was her mother’s attorney. Jackie died in September 2011.

[14] The Objector’s affidavit recites complaints about Jackie’s conduct as their mother’s attorney going back to 1999. During Jackie’s life, while she was Ms. Sugarman’s attorney, the Objector’s affidavit documents many concerns. It appears, however, that the Objector never took any legal action on her mother’s behalf in respect of these concerns. Following Jackie’s death, there was litigation surrounding the appointment of a new guardian for Ms. Sugarman. In the end, the Objector consented to the appointment of Michael Caplan as guardian of property and personal care for Ms. Sugarman. The Objector also consented to an order which approved a management plan and required the guardian to follow it.

[15] The consent order of C. Campbell J. is important. Among other things, C. Campbell J. approved a management plan and ordered that the guardian “shall act in accordance with the management plan.” That Order also required Michael Caplan to pass his accounts for the period March 14, 2012 to March 14, 2013. If the Objector had complaints about the management plan, she ought to have voiced those complaints at the time the order adopting the plan was made.

[16] It is clear that the management plan did not list any significant assets belonging to Ms. Sugarman. In my view, the Objector cannot, having consented to the management plan approved by the Court, now say it was inaccurate or materially deficient without providing evidence of a material change or new, previously unknown information that was not, with reasonable diligence, discoverable at the time the Applicant was appointed and the management plan approved. There is no such evidence. Indeed, the evidence is that virtually all of Ms. Marcus’s concerns about Jackie’s conduct as their mother’s attorney were known before March 14, 2012. It is equally clear that the material filed on this application does not disclose, in any event, any significant assets belonging to Ms. Sugarman.

[17] Counsel for the Objector maintained that the Applicant was under a legal obligation to investigate alleged misappropriations of Ms. Sugarman’s funds by his mother, Jackie. No legal authority was cited for this proposition nor, when questioned, was counsel for the Objector able to point to any such statutory or common law obligation. More importantly, there is simply no credible evidence advanced by the Objector to support her allegation that Ms. Sugarman was a wealthy woman whose assets were dissipated or taken from her in her old age by her attorney. The Objector has offered nothing but unsupported “belief,” speculation and innuendo. In my view, the order of C. Campbell J. imposed no obligation on the Applicant to go behind the status of affairs when he took on responsibility as Ms. Sugarman’s guardian in March 2012 absent clear evidence of wrongdoing. There was a management plan approved and, indeed, the Order required Mr. Caplan to follow it.

[18] The Objector’s allegations concerning Jackie’s conduct before her death as Ms. Sugarman’s attorney are speculative and completely unsupported by any evidence. In my view, Michael Caplan was not only not required to investigate these allegations; it would have been irresponsible and imprudent of him to use Ms. Sugarman’s limited resources to do so.

[19] The shortfall in the cost of Ms. Sugarman’s care, while she she was alive, has been explained. Mr. Arthur Caplan, Jackie’s husband, undertook to fund Ms. Sugarman’s care to the extent of $100,000. This was part of the management plan approved by the Court in 2012. The $20,000 shortfall in the cost of that care from March 2012 to March 2013, therefore, was underwritten by Arthur Caplan out of this $100,000 fund.

[20] By virtue of my order of July 2, 2014, information concerning the annuities has been produced. They are modest and were fully utilized in Ms. Sugarman’s care during her life.

[21] I also note that, at the Objector’s request, the Public Guardian and Trustee became involved in this case. The Public Guardian and Trustee has reviewed the accounts of Michael Caplan and takes no issue with them. The Public Guardian and Trustee has approved the judgment as sought by the Applicant on this application.

[22] On the basis of the foregoing analysis, there is no merit to the objections raised to the Applicant’s application for the passing of his accounts.

[23] The objections are dismissed. The accounts of the Applicant, as submitted, are approved.

[24] Costs were only sought due to the extensive and unreasonable efforts taken by the Objector to impede the closure of this file. I agree with the Applicant. Based on the extremely poor quality of the evidence provided, the Objector’s position was entirely without merit and unsupported by any credible, admissible evidence. The Objector, Andrea Marcus, is therefore liable to the Applicant for his reasonably incurred partial indemnity costs which I assess at $15,000.

Penny J.

Date: September 18, 2014