Balacko et al. v. Chepil-Coyle et al.

[Indexed as: Balacko v. Chepil-Coyle]

Ontario Reports

Ontario Superior Court of Justice,

Platana J.

December 1, 2014

123 O.R. (3d) 764 | 2014 ONSC 6931

Case Summary

Agency — Power of attorney — Resignation — Attorneys delivering notice of resignation which provided that resignation became effective when received by grantor and her children — Attorneys failing to deliver notice to all five children — Resignation not effective.

C appointed the respondents to be her attorneys under powers of attorney for property and personal care. The respondents subsequently signed and delivered to C a notice of resignation, which stated that the resignation became effective when received by C and her children. The notice was not delivered to all of C's children. Several months later, the respondents declared that they were retaining their appointment as attorneys. The applicants brought an application pursuant to the Substitute Decisions Act, 1992, S.O. 1992, c. 30 for an order declaring that the respondents had effectively resigned as attorneys for C.

Held, the application should be dismissed.

The respondents had placed their own condition on the resignation -- notice to C's children -- and that condition had not been met. Accordingly, the resignation was not effective.

Cases referred to

Canada Post Corp. v. Canadian Union of Postal Workers (Rural and Suburban Mail Carrier Grievance, CUPW 730-08-R00074, Arb. Peltz), [2010] C.L.A.D. No. 399, 203 L.A.C. (4th) 78; Chambers Estate v. Chambers, [2013] O.J. No. 3659, 2013 ONCA 511, 367 D.L.R. (4th) 151, 90 E.T.R. (3d) 161, 309 O.A.C. 205, 230 A.C.W.S. (3d) 319 [page765]

Statutes referred to

Substitute Decisions Act, 1992, S.O. 1992, c. 30 [as am.], ss. 11 [as am.], (1) [as am.], (a), (b), (c), (d) [as am.], (i), (2) [as am.], 52 [as am.], (1) [as am.], (2) [as am.]

APPLICATION for an order declaring that the respondents had resigned as attorneys under powers of attorney.

Morris J. Holervich, for applicants.

Randall V. Johns, for respondents.

[1] PLATANA J.: — The applicants have brought an application pursuant to the Substitute Decisions Act, 1992, S.O. 1992, c. 30 for an order declaring that the respondents have effectively resigned as attorneys for Edith Rose Chepil, and alternative relief. Pursuant to the direction of Pierce J., the issue of whether the respondents have effectively resigned is to be determined first, prior to considering any alternate grounds, if necessary.

Background

[2] On July 5, 2005, Edith Rose Chepil appointed her three daughters jointly as power of attorney for property, and power of attorney for personal care.

[3] On April 11, 2011, Edith appointed one of her daughters, Jeanna Louise Chepil-Coyle, and her husband, John P. Coyle, joint to be her attorney under separate powers of attorney for property and personal care.

[4] Shortly after April 20, 2011, the applicant Catherine McFarlane received a letter dated April 20, 2011 from her mother which stated that "I have revoked my Powers of Attorney that you were named as one of my joint attorneys". The affidavit of Catherine states that she met with her mother, at which time her mother asked her what "revoked" meant. The applicants allege that their mother was unduly influenced in having the powers of attorney dated April 11, 2011 prepared, and in her signing same.

[5] On May 16, 2011, the respondents signed and delivered a notice of resignation, in which they declared they were resigning as attorneys for personal care and for property. The notice was delivered to the applicants, and two other siblings, but not to their brother David or the relatives of the grantor who are known and reside in Ontario. Notice was not given to persons with whom the attorneys previously dealt on Rose's behalf, and with whom further dealings were likely to be required, as required by ss. 11(2) and 52(2) of the Substitute Decisions Act. [page766]

[6] In August 2011, the respondents declared that they had resigned in haste, and they were retaining their appointment as attorneys.

[7] On or about August 29, 2011, the respondents issued trespass notices against the applicants, Danny and Bob Smith. These were subsequently removed on or about October 20, 2011, following an order of Pierce J.

[8] The sole issue before me is whether the respondents have effectively resigned. The respondents take the position that the respondents did not resign, arguing that the requirements of the Substitute Decisions Act have not been met, and that no "revocation" has been affected.

[9] Mr. Holervich submits that s. 11 of the Substitute Decisions Act permits an attorney under a continuing power of attorney to resign. He points to the notice of resignation dated May 16, 2011, addressed to Michael Harris which reads in part as follows:

Under s. 11. And 52. Of the SDA, 1992, S.O. 1992 c.30

John Coyle and Jeanna Chepil-Coyle resign from Authority under Powers of Attorneys for Property and Personal Care as Authorized by Edith Rose Chepil on April 20, 2011.

[10] The resignation itself to Rose reads in part:

DEAR E. ROSE CHEPIL (MOM) MAY 16, 2011

Under Section 11. (1),(a)(d),(i), (ii) and Section 52. (1) (a),(d) of the Substitute Decisions Act 1992, S.O. 1992 c. 30

JOHN P. COYLE and JEANNA CHEPIL-COYLE

AUTHORIZED BY YOU E. ROSE CHEPIL to act with you and on your behalf under Your Power of Attorney for Poperty (sic) and Personal Care (April 20, 2011)

Unfortunately, We resign from Authorities to Assist You with Your wishes, Choices and Decisions.

We can no longer Act on Your Behalf with the continuing interference and obstructon by others or as you say, Undermining.

This Resignation is effective when received by You ( the Grantor ) and when received by your other (Five) children living in Ontario. -- Janice L. Grant, cheryl M. Balacko, Catherine M. McFarlane, Daniel W. Chepil and r. David Chepil.

The Substitute Decisions Act

[11] Mr. Holervich relies on s. 11(1) of the Substitute Decisions Act, which reads:

11(1) An attorney under a continuing power of attorney may resign but, if the attorney has acted under the power of attorney, the resignation is not effective until the attorney delivers a copy of the resignation to, [page767]

(a) the grantor;

(b) any other attorneys under the power of attorney;

(c) the person named by the power of attorney as a substitute for the attorney who is resigning, if the power of attorney provides for the substitution of another person; and

(d) unless the power of attorney provides otherwise, the grantor's spouse or partner and the relatives of the grantor who are known to the attorney and reside in Ontario, if,

(i) the attorney is of the opinion that the grantor is incapable of managing property, and

(ii) the power of attorney does not provide for the substitution of another person or the substitute is not able and willing to act.

(2) An attorney who resigns shall make reasonable efforts to give notice of the resignation to persons with whom the attorney previously dealt on behalf of the grantor and with whom further dealings are likely to be required on behalf of the grantor.

[12] Mr. Holervich further relies on s. 52, which deals with a power of attorney for personal care:

52(1) An attorney under a power of attorney for personal care may resign but, if the attorney has acted under the power of attorney, the resignation is not effective until the attorney delivers a copy of the resignation to,

(a) the grantor;

(b) any other attorneys under the power of attorney;

(c) the person named by the power of attorney as a substitute for the attorney who is resigning, if the power of attorney provides for the substitution of another person; and

(d) unless the power of attorney provides otherwise, the grantor's spouse or partner and the relatives of the grantor who are known to the attorney and reside in Ontario, if the power of attorney does not provide for the substitution of another person or the substitute is not able and willing to act.

[13] Both counsel focused on ss. 11 and 52 and on the issues of service and whether the attorneys had "acted". Referring to s. 11(1)(a), Mr. Holervich submits that the resignation was delivered to the grantor. He references the fact that the affidavit of Cheryl Smith (Balacko) states that at the time of the notice of resignation, she was looking after many aspects of her mother's care. Every few days she would take her mother to the mailbox to retrieve her mail, and would review it with her. Further, she states that her sister Catherine showed the document to her mother when their mother was visiting. [page768]

[14] Mr. Holervich notes that Cheryl's affidavit denies an allegation in Jeanna Louise's affidavit that Cheryl was "intercepting" mail intended for their mother.

[15] He also submits that the notification itself shows that service was effected upon Catherine, the other attorney, which complies with s. 11(1)(b).

[16] He argues that there was no substitute attorney therefore s. 11(1)(c) has no application. Further, he submits that s. 11(1)(d) has no application in the circumstances of this case, as the affidavit material discloses that at the time Rose was fully capable of making decisions on her own behalf.

[17] Mr. Johns, for the respondents, argues that if the resignation is considered to be effective there will be no authority for anyone to act because of the revocation, no substitute appointed and no application has been made for a statutory guardian.

[18] He argues that by virtue of s. 11 and s. 52, a power of attorney may resign, but if the attorney has acted under the power of attorney, the resignation is not effective until the conditions outlined are met. He argues that in this case the attorney did not act before the resignation on May 16, 2011 because there was no need to as the grantor was capable.

[19] He submits that if they had acted, the conditions have not been met. He references the affidavit of Jeanna Coyle dated October 9, 2014, where it states that the notice of resignation was not delivered to all of the parties required by ss. 11(1) (a) and 52(1) and (2) of the Substitute Decisions Act. Further, he argues that ss. 11(2) and 52(2) were not complied with, as the attorneys had dealt with CCAC in the past, and CCAC continued to look to the attorneys to address the issue when Rose returned to Thunder Bay.

[20] Mr. Johns submits that s. 11(1)(a) of the Substitute Decisions Act provides, with respect to resignation of an attorney for property who has acted under the power, that the resigning attorney deliver a copy of the resignation to the grantor. He notes that s. 11(1)(d)(i) of the Substitute Decisions Act provides, with respect to resignation of an attorney for property who has acted under the power, that the resigning attorney also deliver a copy of the resignation to the relatives of the grantor known to the attorney who reside in Ontario of the attorney is of the opinion that the grantor is incapable of managing property.

[21] Section 52 provides, with respect to the resignation of an attorney for personal care who has acted under the power of attorney, that the resigning attorney deliver a copy of the resignation to the grantor and to the relatives of the grantor known to the attorney who reside in Ontario. Section 52 of the [page769] Substitute Decisions Act does not require the resigning attorney to notify the relatives of the grantor only if the attorney is of the opinion that the donor is incapable of making personal care decisions.

[22] He further submits that there is no provision in the Substitute Decisions Act dealing with the resignation of an attorney who has not acted under the power of attorney; that there is no provision in the Substitute Decisions Act dealing with the continuing actions of an attorney as attorney after the attorney's resignation; and that there is no provision in the Substitute Decisions Act allowing an attorney to revoke his or her resignation.

[23] Mr. Johns cites Chambers Estate v. Chambers, [2013] O.J. No. 3659, 2013 ONCA 511 for the proposition that a person who takes the position of estate trustee without proper authority by intermeddling in the affairs of the estate takes that authority as a result of the principle of trustee de son tort.

[24] Mr. Johns has also referred me to Canada Post Corp. v. Canadian Union of Postal Workers (Rural and Suburban Mail Carrier Grievance, CUPW 730-08-R00074, Arb. Peltz), [2010] C.L.A.D. No. 399, 203 L.A.C. (4th) 78, where the arbitrator considered an employee's prompt recanting without any contrary conduct to be enough to hold a resignation ineffective. There is an objective element to be considered. Referencing an earlier arbitration decision, Arbitrator Peltz quoted [at para. 64]:

In my view, there is some merit in relaxing the rather mechanistic nature of assessing the circumstances in quit or resignation cases in order to ascertain intent, and to be more flexible in permitting an employee to retract or revoke a resignation, particularly, where it is done within a reasonable period of time. Thus the validity of the consent . . . should be assessed not upon an employee's precipitate action in quitting or resigning, but upon that employee's total conduct over time. Many employees will act hastily or irrationally and after a time recognize their error or the folly of what they have done and attempt to revoke their resignations. In those circumstances they should not be condemned for the initial act of quitting or resigning but their revocation; should be strongly considered in determining the employee's intent[.]

[25] Mr. Johns submits that, in spite of the purported resignation in this case, the respondents continued to act as attorneys "de facto". He argues that the document itself shows frustration and hesitation on the part of the respondents, and when the grantor returned to Thunder Bay, they stepped in again. He references a letter from the applicants' counsel dated July 22, 2011, wherein he asks the respondents to sign additional resignation documents, for any other appointments which may have been in effect. Mr. Johns notes the contents of the letter stating, "The intent in asking you to execute the enclosed Resignation [page770] documents, is to give full and conclusive effect to your apparent intention to resign from any position of attorney arising under any Power of Attorney made by Mrs. Chepil."

[26] Mr. Holervich, in reply, notes that there is no document produced which states that the respondents have changed their minds about resigning. He comments that the wording in the letter of July 22, 2011 is in reference only to clarifying that the resignation referred to any and all other appointments which may have then been outstanding.

[27] He further argues that, if no action was taken by the respondents in the 26-day period, then s. 11(1) and s. 52(1) does not apply, as they are both effective only "if the attorney has acted under the power of attorney . . .".

Discussion

[28] Sections 11(1) and 52(1) set out that an attorney may resign, but sets out the qualifying conditions in order to make the resignation effective. The corollary to that is that if the attorney has not acted, then there is no necessity to establish the qualifying factors in s. 11(1)(a)?(d).

[29] In considering the factors, it is clear that the grantor, Rose, received the resignation, as did the other grantors, the applicants. The power of attorney itself contains no substitute for any attorney who resigns; therefore, s. 11(1) (c) does not apply for purposes of determining the effectiveness of the resignation.

[30] Section 11(1)(d) provides that, unless the power of attorney provides otherwise, the relatives of the grantor who reside in Ontario must be give notice of the resignation, if certain conditions are met. The power of attorney does not otherwise provide, and notice should be given if the resigning attorney is of the opinion that the grantor is incapable of managing property, and no substitute attorney is named. There is no satisfactory evidence to establish that, at the time, Rose was incapable.

[31] The trigger point in s. 11(1) requiring delivery of the resignation is "if the attorney has acted under the power of attorney". If not, the section implies that no delivery is required for the resignation to be effective.

[32] Both counsel argued different positions on the issue.

Did the Attorneys who are Resigning Act in this Case?

[33] Mr. Holervich argues that s. 11(1)(a) and (b) have been met; (c) does not apply, and (d)(i) does not apply because the attorney has not acted. In that regard, he references the affidavit of Jeanna Chepil-Coyle dated September 29, 2014, which states that, based on the affidavits of two financial advisors to [page771] Rose, she was fully capable through the end of 2011 and into early 2012 of making decisions on her own behalf. He submits that this indicates that the respondents must have considered that Rose was not incapable of managing property and therefore delivery of the resignation was effective.

[34] Mr. Johns submits that in spite of their purported resignation, the respondents did indicate, through their actions, that they continued to act "de facto". He points to the affidavit material which states that from June through August 2011, it was the respondents who were contacted by the staff of McKellar Place and CCAC, with respect to arrangements for Rose to move into Hogarth. He also notes that in August 2011, the respondents acted in having trespass notices issued against the applicants and others, and in consenting to have those notices removed after the order of Pierce J.

[35] Section 11(1) is applicable provided the attorney has acted within the time from the granting of the power of attorney to the date of purported resignation. The evidence of any involvement of the respondents acting as attorneys between April 20 and May 16 is that after meeting with Larson, they took her to the Royal Bank. She gave the bank all her own instructions (para. 65 of affidavit sworn January 21, 2012).

[36] Further evidence of acting focuses on the move to Hogarth. That evidence, however, while it suggests they were making arrangements for the move with CCAC and Hogarth, does not indicate that they or anyone else were then acting under their power of attorney. Neither is it evidence of acting prior to the date of the purported resignation.

[37] There is evidence that both CCAC and Hogarth, after Rose's return to Thunder Bay at the end of May, accepted their power of attorney as valid, which resulted in the letter of August 12, 2011, stating they retain their appointment, indicating that the earlier resignation was "in haste out of personal frustration".

[38] There is also evidence in the form of an e-mail dated August 30, 2011 from Cheryl to the respondents seeking permission to remove certain items from Rose's apartment.

[39] In my view, despite the issue raised as to whether the attorney had acted under the power of attorney, there is an additional factor to be considered, based on the resignation document itself. The notification, while it references ss. 11(1) and 52(1) contains a specific statement that "This resignation becomes effective when delivered to and received by E. Rose Chepil and her (Five) other children living in Ontario." Regardless of the wording in ss. 11 and 52, the power of attorney has [page772] placed a specific limiting condition in the notification. As I noted earlier, not all the five children have had the notification and resignation delivered to them. The only evidence before me with respect to David is that it was not served on him. As such, the resignation cannot be found to be effective, even if the respondents considered it necessary to attempt to "retain their appointment".

[40] In sum, although the resignation may not be effective within the meaning of the conditions in ss. 11 and 52, the respondent, as power of attorney, placed their own condition on the "resignation", and that condition has not been met.

[41] I find that the resignation is not effective. The other relief requested should be dealt with by way of viva voce evidence. This matter should be placed on the January assignment court.

Application dismissed.

End of Document