SUPERIOR COURT OF JUSTICE - ONTARIO

BRACEBRIDGE COURT FILE NO.: CV-14-102-0

DATE: 20141126

RE: ALVIN BERT ALLEN, Applicant

AND:

LINDA LUELLA ALLEN and THE PUBLIC GUARDIAN AND TRUSTEE, Respondents

BEFORE: THE HON. MADAM JUSTICE M.P. EBERHARD

COUNSEL:
V. Tingey, Counsel, for Alvin Bert Allen and Linda Luella Allen
J. Marques de Souza, Counsel, for The Public Guardian and Trustee

HEARD: November 24, 2014

ENDORSEMENT

[1] This matter came before me again today further to my endorsement of November 21, 2014.

[2] Now included in the material is a fresh affidavit from Mrs. Allen’s surgeon, Dr. Biagio Iannantuono, who is very specific about her capacity on the exact dates when she executed documents, November 8 and November 19, 2014.

[3] I also now have the November 21, 2014 letter of the PGT expressing concern that with Mrs. Allen’s fluctuating health status her capacity should be assessed by someone with expertise, and that Mrs. Allen is not represented by counsel independent of the Applicant husband.

[4] The PGT was served with my endorsement of November 21, 2014 on that day. The PGT did not inquire when the matter was set by the Trial Coordinator to resume nor did the office respond to numerous calls from the Trial coordinator’s office. My first act today was to attempt to arrange for an appearance by conference call. Applicant Counsel was able to make contact but the PGT counsel wrote she was unavailable on such short notice. For the reasons contained in my first endorsement and hereafter in these reasons, I have determined that it is not unsafe to proceed without the assistance of the PGT. I have so very often called upon the PGT for assistance in investigating whether an individual’s rights are being protected. In the present case I find a plethora of safeguards in place upon which I am prepared to rely. Accordingly I am moving forward on what came to me initially as a basket motion on notice but effectively ex parte.

[5] Although I am well aware of the rule of practice that counsel should not appear on her own affidavit, I required Ms. Tingey to provide an affidavit setting out evidence of her own history as a solicitor for Mr. and Mrs. Allen from September 2013 when, before diagnosis or any suggestion of incapacity, Mrs. Allen attended upon Ms. Tingey with her husband to give instructions for Wills and Powers of Attorney. These instructions constitute pre-existing wishes that a substitute decision maker would necessarily be required to advocate.

[6] Wills and Powers of Attorney in accordance with these 2013 instructions were executed by Mrs. Allen on November 19, 2014. By the wills real estate would pass to her husband, the Applicant as residual beneficiary.

[7] These pre-existing wishes are consistent with the documentation that Mrs. Allen executed in November 2014 except that she transferred one property to herself and her daughter. This daughter has been a tenant in that property. Were the transfer to be challenged for incapacity it would be the Applicant who would have complaint that he was deprived of a property he would otherwise have been willed to receive. Nevertheless he brings this Application to terminate the guardianship he holds. This position contrary to his own interest evidences a willingness to accept that this is what his wife wants and that she has capacity to so decide.

[8] All of the children of Mr. and Mrs. Allen consent to the termination of the guardianship.

[9] All Mrs. Allen’s siblings consent to the termination of the guardianship.

[10] Dr. Carl Alton Seaton provides evidence Mrs. Allen has been a patient of the Gregg Medical Group since 1988 or 1989 and in his primary care since May 2014 before she was diagnosed with cancer in June. On the basis of her ongoing records and 12 interactions in 6 months he has a before and after picture that brings him to the opinion that she is able to understand information now about the management of her property, and that the guardianship that was put in place to address her needs when she was in a coma is no longer necessary.

[11] Dr. Iannantuono swore on October 22, 2014 (before the subject documents were executed) that he had seen Mrs. Allen frequently since July 19, 2014 and stated that since August 27, 2014 she has been capable of managing her own property and financial affairs. This date coincides with Mrs. Allen’s return to his care from hospital in Orillia when the impact of coma, from which she regained consciousness on August 2, 2014, had been addressed.

[12] In his November 24, 2014 affidavit Dr. Innantuono builds on that base providing evidence that her capacity continues and also specifically addresses that on November 8 and 19, 2014 she had capacity.

[13] Pursuant to regulations of The Substitute Decisions Act doctors are eligible to become capacity assessors. In litigation where the question of capacity arises after the death of the subject individual, medical doctors often provide the best evidence of capacity. This is so even though they may not specifically address the specific questions that a member of the “roster of capacity assessors” in the PGT’s Capacity Assessment Office would. The assessment of capacity is a daily requirement for physicians in relation to their obligation to ascertain consent. I am prepared to rely on these doctors in the present circumstances.

[14] In summary I have before me an issue of capacity where there is no underlying dispute. All family members support the termination of the guardianship order. Two treating physicians provide contemporaneous opinions of capacity. The lawyer on the Application, though not exclusively the lawyer for the subject, had been the choice of the subject to act as her lawyer before capacity was in issue and she then expressed wishes consistent with her current decisions. The only person whose property position is compromised by the current decisions of the subject is the Applicant husband who does not contest the decision made in favour of their daughter. But for the existence of the guardianship order made in very particular circumstances of the subject temporarily having no capacity there would be no need for the involvement of the court nor investigation by the PGT.

[15] In these circumstances there are sufficient safeguards to terminate the order dated August 1, 2014 effective the date of her demonstrated capacity, namely August 27, 2014.

[16] Judgement to issue as signed.

EBERHARD J.

Date: November 26, 2014