COURT FILE AND PARTIES

COURT FILE NO.: CV-14-3065-00ES
DATE: 20141217

SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF THE POWERS OF THE ATTORNEY FOR

PROPERTY FOR LAWRENCE THOMAS STOUT, AS GOVERNED

BY THE SUBSTITUTE DECISIONS ACT, 1992, S.O. c. 30

RE: Michael Overbury, Applicant

AND:

Andrea Margaret Meynell in her capacity as Attorney under a Continuing Power of Attorney for Property dated January 31, 2011, Respondent

BEFORE: L. A. Pattillo J.

COUNSEL:
Warren. W. Tobias, for the Applicant
Jacqueline L. King, for the Respondent

HEARD: December 3, 2014

ENDORSEMENT

[1] The Applicant, Michael Overbury, brings this application for leave to bring an application to have the respondent, Andrea Meynell, the attorney for property for Lawrence Thomas Stout, pass the accounts pursuant to s. 42(4) No. 6 of the Substitute Decisions Act, 1992, S.O. 1992 c. 30 (the “Act”).

[2] Section 42 of the Act deals with the passing of accounts of an attorney or guardian of property. Subsection (2) provides that an attorney, the grantor or any persons listed in subsection (4) may apply to pass the attorney’s accounts. Subsection (4) provides:

(4) The following persons may also apply:

1. The grantor’s or incapable person’s guardian of the person or attorney for personal care.
2. A dependant of the grantor or incapable person.
3. The Public Guardian and Trustee.
4. The Children’s Lawyer.
5. A judgment creditor of the grantor or incapable person.
6. Any other person, with leave of the court.

[3] The granting of leave pursuant to s. 42(4) No. 6 is discretionary. In determining whether leave should be granted, I agree with the test set out by J.R. Henderson J. in Ali v. Fruci, [2006] O.J. No. 1093 (S.C.J.). The court must be satisfied that the Applicant has a genuine interest in the grantor’s welfare and that it is reasonable to believe that a court hearing the matter may order the attorney to pass his or her accounts.

Background

[4] Mr. Stout was diagnosed with Alzheimer’s on November 16, 2012. In December 2013, following an assessment of Mr. Stout, Dr. Michael Silberfeld confirmed that he no longer had the capacity to manage his finances or change his will and was subject to undue influence.

[5] Mr. Overbury says he is a friend of Mr. Stout’s. Ms. Meynell is the nice of his second wife, Sheila Shotten (“Sheila”), who died in December 2009. On January 31, 2011, Mr. Stout granted a continuing power of attorney for property to Ms. Meynell and his son John Stout (“John”) jointly. At the same time Mr. Stout granted John a continuing power of attorney for health. John resigned as power of attorney for property in April 2013 but continues as power of attorney for health and continues to be involved in overseeing his father’s financial affairs.

[6] Mr. Stout married Sheila in 1987. He had three sons from his first marriage and Shelia had none. Together they had no children. Prior to her death, Sheila and Mr. Stout arranged their affairs so that Shelia’s assets would provide for Mr. Stout for the remainder of his life following which they would pass to her two nieces, one of whom is Ms. Meynell, and her nephew. Sheila transferred her condominium to Mr. Stout (the “Condo”) on the understanding that he could continue to live there or in an alternate residence for life. The balance of Sheila’s assets were also given to Mr. Stout and subsequently placed by him into a trust (the “Trust”), the annual net income of which, together with such amounts out of capital as the trustees in their absolute discretion consider appropriate, is paid to Mr. Stout during his life. Upon Mr. Stout’s death the corpus of the Trust goes to Sheila’s nieces and nephew. The Trust was settled in November 2009 and the current trustees are Mr. Stout, Ms. Meynell and John.

[7] In addition to the income from the Trust, Mr. Stout also receives income from a RRIF and a LIF account in his name. Mr. Stout’s will provides that his assets are divided between his three sons.

[8] On March 19, 2013, Mr. Stout married Carole MacKenzie (“Carole”). The relationship between Ms. Meynell and John on the one hand and Carole on the other concerning the management of Mr. Stout’s property has been very antagonistic and given rise to litigation between the parties. The main issue has been the amount of money which Mr. Stout receives from the Trust and his assets.

[9] When issues arose concerning the Condo in late 2012 and early 2013, Ms. Meynell brought an application on behalf of Mr. Stout to have the Condo sold and the proceeds held in trust. On June 24, 2013, Mr. Stout, Carole, John and Ms. Meynell attended a mediation to resolve the issues. All parties with the exception of Carole agreed to a resolution.

[10] On July 17, 2013, Justice Whitaker ordered the sale of the Condo and provided, among other things, that the proceeds were to be held in trust. Justice Whitaker also ordered that pursuant to s. 3 of the Act, Ms. Kimberly Whaley and Ms. Heather Hogan be appointed to provide legal representation to Mr. Stout. Justice Whitaker further ordered that Carol was prohibited from interfering with the sale of the Condo or encumbering it in any manner.

Does Mr. Overbury have a Genuine Interest in Mr. Stout’s Welfare?

[11] Mr. Overbury says that he is a friend of Mr. Stout’s going back to when Mr. Stout was married to Sheila. Both Ms. Meynell and John dispute that claim. They say that he is more Carole’s friend than Mr. Stout’s and he is simply doing Carol’s bidding in bringing this application.

[12] There is a serious question on the evidence concerning the exact nature of Mr. Overbury’s friendship with Mr. Stout. In a letter dated October 25, 2013, Ms. Whaley, Mr. Stout’s s. 3 counsel, details a meeting that occurred at her office on October 23, 2013 with Mr. Stout, accompanied by Mr. Overbury. The letter is four and a half-pages, single spaced and sets out in some detail what occurred. In particular, Mr. Overbury would not let Ms. Whaley meet with Mr. Stout alone. Mr. Overbury had previously sent emails to Ms. Whaley with what were purportedly Mr. Stout’s instructions. Ms. Whaley noted that the emails were completely contrary to any instructions she ever received from Mr. Stout up to that time. Later in the letter she states she was not convinced that the instructions were Mr. Stout’s rather than Mr. Overbury’s.

[13] Particularly telling is the following excerpt from Ms. Whaley’s letter:

This is not the first time that my efforts to serve my client have been frustrated. Indeed, Mr. Overbury is merely the latest in a string of officious individuals who have appeared in my office at my client’s side, informing me that my client shall no longer meet with me alone, and endeavoring to tell me what my client “really” wants or what he “really means” when he speaks. Those individuals have all purported to “instruct” me on my client’s behalf, and each of them have provided me with “instructions” that echo Ms. MacKenzie’s demands – often verbatim – which demands were made during mediation and have been repeated in her communications with this office by phone.

Another pattern warrants mentioning: all of these individuals purport to be my client’s long-time friends. When I agreed to meet with my client in the company of one of his long-time friends – one who was expressly invited by my client when I had an opportunity to discuss this with him alone – we had a productive meeting and I received instructions regarding next steps. However, almost immediately thereafter, the plans put in place by my client were abruptly cancelled with no explanation. I have been unable to speak with my client alone since that time, and the individual who accompanied my client at our last meeting, and so helpfully endeavored to assist my client going forward, no longer appears to be involved.

I have no knowledge that Mr. Overbury is a long-time friend of my client. In all of my discussions with my client regarding his friends and who might be available to assist him, he has never mentioned Mr. Overbury. Even if Mr. Overbury’s representations with respect to the duration of his friendship with my client are true, it makes no difference to my responsibility and obligation to obtain instructions from my client free of influence, particularly where it is well known that his Alzheimer’s has affected his cognition.

[14] After the meeting that Ms. Whaley described, she followed her client and Mr. Overbury downstairs from her office. She saw them get into a car with Carole where there was some discussion and Mr. Overbury was let out of the car a few blocks away.

[15] In light of the above, I have concerns as to the exact nature of Mr. Overbury’s friendship with Mr. Stout and whether he has a genuine interest in Mr. Stout’s welfare. Interfering in the relationship between Mr. Stout and his counsel is not in Mr. Stout’s best interests.

Is it Reasonable to Believe that a Court Hearing the Matter May Order Ms. Meynell to Pass Her Accounts?

[16] Mr. Overbury makes no direct allegation of misfeasance or wrongdoing concerning Ms. Meynell’s dealings with Mr. Stout’s property. He does, however, question what happened to the line of credit taken out on behalf of Mr. Stout and he accuses Ms. Meynell of having a conflict of interest.

[17] In his affidavit in support of this application, Mr. Overbury provides detailed financial information concerning Mr. Stout’s affairs. On a number of occasions he states that he has been advised of the information by Mr. Stout and Carole. Given Mr. Stout’s medical condition, it is my view that he has received the information, including his views on Mr. Stout’s financial wellbeing, from Carole only.

[18] Mr. Overbury states that he is very concerned that Mr. Stout is not being paid sufficient monthly money to “fully enjoy his retirement years.” In other words, he is saying that Mr. Stout does not receive enough money to live. He purports to review Mr. Stout’s finances, says that he is now receiving less than $4,000 per month and questions why he is not receiving more on a monthly basis.

[19] Ms. Meynell states that Mr. Stout receives approximately $9,000 per month from both the Trust and his assets. She says he does not want for anything and lives a very comfortable lifestyle. He has his own two bedroom apartment in Toronto, travels to Florida and Europe, among other places and has a membership at the Hunt Club. Ms. Meynell is mindful that Mr. Stout’s assets may someday have to pay for his accommodation in an assisted living facility.

[20] The fact that Mr. Stout’s personal needs are being met is confirmed by John, who although he is no longer an attorney, is a trustee of the Trust and has been kept informed by Ms. Meynell. He also oversees his father’s investment accounts. He has no concern about Ms. Meynell’s management of Mr. Stout’s property which he calls prudent. He does not feel an accounting is necessary.

[21] An assessment of Mr. Stout done by an occupational therapist in January 2014 confirms that he is well cared for.

[22] Given that I consider Mr. Overbury’s information concerning Mr. Stout’s lifestyle to be primarily derived from Carole and therefore hearsay, I am unable to accept it. I prefer the evidence of both Ms. Meynell and John in that regard. It is clear from all the material that they both care deeply for Mr. Stout and have his best interests in mind in their care of him.

[23] In my view, the concerns that Mr. Overbury expresses about Mr. Stout not receiving enough money and that there is more money available for him emanate from Carole. As noted by Ms. Meynell, they are consistent with Carole’s repeated attempts in the past to gain control of Mr. Stout’s finances.

[24] The line of credit was ordered by Justice Whitaker to satisfy Mr. Stout’s debts which were mainly legal fees arising as a result of Carole’s opposition. Justice Whitaker further ordered that Ms. Meynell was authorized to pay the reasonable legal fees of Mr. Stout (including past legal fees) and her own reasonable legal costs. The is no evidence that the costs incurred and paid on behalf of Mr. Stout or Ms. Meynell were not fair and reasonable.

[25] There is no question that being Mr. Stout’s attorney for property and a trustee of the Trust while having a residuary interest in the Trust may give rise to a conflict of interest. But Mr. Stout, who knew of Ms. Meynell’s interest in the Trust (he settled it) before he granted her his power of attorney for property, was obviously not concerned. Neither am I, particularly with John’s involvement as Trustee.

[26] Accordingly, as Mr. Overbury has not raised any reason why a passing of accounts should occur, I am unable to conclude that a court hearing the application to pass accounts may order Ms. Meynell to do so.

[27] One final matter. Given Carole’s attempts to obtain access to Mr. Stout’s money, I am very concerned about the end game here. Mr. Overbury says that he wants Ms. Meynell’s accounts passed and reviewed by the Public Trustee. If a problem arises, he is prepared to let the Public Trustee handle it. If the Public Trustee decides to do nothing, that decision will be sufficient for Mr. Overbury. My concern, given the history of this matter, is whether it will be sufficient for Carole.

Conclusion

[28] In light of my concerns as to whether Mr. Overbury has a genuine interest in Mr. Stout’s welfare and my conclusion that it is not reasonable to believe a court hearing the matter may order Ms. Meynell to pass her accounts, I am not prepared to grant leave. Mr. Overbury’s application for leave is dismissed.

[29] Ms. Meynell is entitled to her costs of this application. She seeks full indemnity costs of $31,348.97 made up of $26,137.00 in fees, disbursements of $1,814.16 and taxes. In my view, full indemnity arises only in the most egregious of cases and I do not consider this application to be such a case.

[30] That said, given my concerns about the application, I conclude that substantial indemnity costs are in order. I do not consider that Mr. Stout received much benefit from the application. Mr. Overbury failed to produce any evidence that Mr. Stout’s needs were not being met. More concerning, is what I consider to be Carole’s interference. In my view, in bringing this application, Mr. Overbury was engaged in Carole’s bidding. Carole has already been responsible for Mr. Stout having to spend significant monies on legal fees. A substantial costs award is necessary, in my view, to send the message that at some point it has to stop.

[31] I have reviewed the costs outline submitted on behalf of Ms. Meynell. I have also considered the cost submissions filed by counsel after the motion. I consider the time spent by Ms. Meynell’s counsel to be reasonable given the issues raised and the result achieved. I commend them for resisting the temptation to cross-examine Mr. Overbury. I also have no issue with the rates claimed.

[32] In the circumstances, I consider Ms. Meynell’s substantial indemnity costs as claimed in her costs outline of $23,965.27 to be fair and reasonable. Payable forthwith.

L. A. Pattillo J.

Released: December 17, 2014