OTTAWA

COURT FILE NO.: 15-64365

DATE: 2015/07/30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: William Richard Plummer, Applicant

AND

Edith Gweneth Plummer, Barbara Thompson-Walker,

in her capacity as Power of Attorney for Property for

Edith Plummer, Marilyn Kennedy, in her capacity as

Power of Attorney for Personal Care for Edith Plummer, and

The Ontario Public Guardian and Trustee

BEFORE: Madam Justice Sylvia Corthorn

COUNSEL: Miriam Vale Peters for the Applicant

Yasmin M. Vinogrod for the Respondent,

Edith Gweneth Plummer

Kathleen P. McDormand for the Respondent,

Barbara Thompson-Walker

HEARD: July 17, 2015

ENDORSEMENT

[1] By way of application, William Richard Plummer seeks an order that he replace Barbara Thompson-Walker as the attorney for property and that he replace Marilyn Kennedy as the attorney for person care of his mother, Edith Gweneth Plummer (“Mrs. Plummer”). At this time, and by way of motion, the applicant seeks an Order for Directions.

[2] On the return of the motion, Mrs. Plummer is represented by counsel. An affidavit sworn by Mrs. Plummer is included in her responding application record.

[3] The applicant disputes that his mother had the requisite capacity in December 2014 to execute: a) a power of attorney pursuant to which the respondent, Barbara Thompson-Walker (“Ms. Thompson-Walker”) is appointed as Mrs. Plummer’s attorney for property, with the applicant as the ‘alternate’ attorney for property; and b) a power of attorney pursuant to which the applicant and the respondent, Ms. Thompson-Walker are appointed jointly and severally as attorneys for personal care for Mrs. Plummer.

[4] The December 2014 powers of attorney, if valid, replace powers of attorney executed by Mrs. Plummer in 1991. In the 1991 documents the applicant is named as both the attorney for property and the attorney for personal care for his mother.

[5] Prior to the return of the application, the applicant and the respondents, Mrs. Plummer and Ms. Thompson-Walker, reached an agreement as to the majority of the terms of an Order for Directions. The terms agreed upon deal with a capacity assessment of Mrs. Plummer, to which she consents and to be carried out in September 2015, and a timetable for the next steps on the application. The applicant has agreed to pay for the capacity assessment, with the ultimate liability for that expense to be determined by the trial judge.

[6] The parties were unable to reach an agreement with respect to two terms that the applicant proposes be included in the Order for Directions.

[7] The applicant acknowledges that if the capacity assessor concludes that Mrs. Plummer has capacity (i.e. as of the fall of 2015 when the assessment is to be conducted) then the application is to be dismissed in its entirety. It is anticipated by all parties who appeared before me that if the capacity assessor determines that Mrs. Plummer does not, as of the fall of 2015, have “capacity” then: a) the application will be pursued; b) the issue of Mrs. Plummer’s capacity in December 2014 will need to be addressed; and c) the production of documents from non-parties will be required to assist in the determination as to Mrs. Plummer’s capacity in December 2014.

[8] The terms proposed by the applicant for inclusion in the Order for Directions (“the Terms”) relate to the production of documents from non-parties. The Terms call for the production of: a) medical records for Mrs. Plummer from October 2012 forward; and b) the “legal file” of Eric Honey, the lawyer whom Mrs. Plummer retained to prepare the powers of attorney for property and for personal care which she executed in December 2014.

[9] The hearing before me was therefore a motion for an Order for Directions as to whether the Terms are to be included in the Order for Directions. The Terms read as follows:

4. THIS COURT ORDERS that the balance of the Application shall be dealt with as follows:

a. If the capacity assessment determines that the Respondent Edith Plummer is incapable of managing one or both of property and personal care, then the Applicant shall be entitled to production and delivery of the Respondent Edith Plummer’s medical records for the period commencing in October 2012.

b. If the capacity assessment determines that the Respondent Edith Plummer is incapable of managing property and/or personal care, then the Applicant shall be entitled to request production of Eric Honey’s legal file for Edith Plummer. Eric Honey will be relieved of any solicitor client privilege that may attach to the documents and information disclosed in accordance with this Order.

[10] In addition, counsel for Mrs. Plummer, acting as agent for the respondent, Marilyn Kennedy (“Ms. Kennedy”), requests that an order be made dismissing the application as against Ms. Kennedy. She is described in the title of proceeding as an attorney for personal care for Mrs. Plummer. The grounds for that request are that Ms. Kennedy is not: a) named in any document as an attorney for the personal care of Mrs. Plummer; and b) a necessary party to the application.

[11] The Office of the Public Guardian and Trustee was served with the application record. No one appeared on behalf of the Public Guardian and Trustee at the return of the application.

Decision

[12] For the reasons set out below: a) the Terms are not included in the Order for Directions; and b) I decline to dismiss, at this time, the application against Ms. Kennedy.

Background Information

[13] The applicant is the only child of Mrs. Plummer (born on September 12, 1946). Mrs. Plummer’s siblings and husband are deceased. In May 1991, Mrs. Plummer executed powers of attorney in which she named the applicant as her attorney for property and for personal care. When the 1991 documents were executed Mrs. Plummer was living in Nepean, Ontario and the applicant was identified as living in Calgary, Alberta. Mrs. Plummer continues to live in the home in Nepean. The Applicant has continued to live in Alberta since the early 1990’s.

[14] The evidence filed to date on the application is limited to the applicant’s affidavit and an affidavit in the name of Mrs. Plummer. The affidavits set out their respective views of their relationship from the early 1990’s to the summer of 2015. The applicant and Mrs. Plummer differ in their respective views of the relationship. There has been no cross-examination on either affidavit.

[15] For the purpose of this motion, it is not necessary to make findings of fact with respect to the relationship between the applicant and Mrs. Plummer. The affidavit evidence does, however, provide context to the dispute with respect to the Terms.

[16] The applicant describes his relationship with his mother as “very close and congenial”, with him visiting his mother once or twice a year. The applicant identifies October 2012, when Mrs. Plummer fell and broke her hip, as a turning point in the relationship. The applicant describes a change at that time in his mother’s cognitive and physical abilities. As a result of those changes the applicant assisted his mother: a) in the period immediately following surgery to address the hip fracture; b) in transitioning to a retirement home for rehabilitation where she remained for eight months; and c) to return to her home safely.

[17] The applicant describes the efforts he made to convince his mother to remain in the retirement home after her recovery from the broken hip. Those efforts included hiring a “mediator who specializes in senior issues.” The applicant and his mother had several sessions with the mediator. At the end of the sessions the mediator recommended that a) Mrs. Plummer return to her home; and b) her living arrangements be reconsidered if she fell again.

[18] That the October 2012 hip fracture was a turning point in the mother-son relationship is reflected in both affidavits filed on the application. Mrs. Plummer describes a change occurring in her relationship with the applicant even before October 2012. Mrs. Plummer attributes this earlier change to the applicant’s current (and second) wife, Mary. Mrs. Plummer did not have a good relationship with her daughter-in-law. As a result, communication and visits from the applicant became less frequent over time.

[19] Mrs. Plummer identifies both the applicant and Mary as “insisting” in 2012 that she be discharged from the hospital to a retirement residence. With respect to her ultimate return to her home, Mrs. Plummer says that it was because of efforts on Ms. Kennedy’s part that she was able to return to her Nepean home.

[20] The applicant and Mrs. Plummer also differ in their respective views of the latter’s cognitive abilities from October 2012 to the summer of 2015.

[21] In essence, the applicant describes increasing and serious concerns about his mother’s ability to care for herself, dementia, and evident lack of trust in the applicant. The applicant provides anecdotal examples of his mother’s questionable and possibly deteriorating cognitive abilities. The examples include Mrs. Plummer reporting to her personal support worker that the applicant’s father, who died over 40 years ago, was in the Plummer home and doing laundry in the basement. Mrs. Plummer denies that the anecdotal examples described by the applicant occurred.

[22] The applicant is concerned that his mother will easily fall under the influence of others who may take advantage of her. The applicant has never met Ms. Thompson-Walker, a financial advisor. He is surprised that Ms. Thompson-Walker is appointed by his mother as her attorney for property.

[23] The applicant is concerned that the December 2014 changes to the power of attorney and a will executed by his mother at the same time reflect: a) decisions on his mother’s part that are not based in reality; and b) an attempt by his mother to cut him out of her life. The applicant wants to ensure that his mother’s finances are managed so that her needs are met and he wants to be in “in the loop” in terms of his mother’s medical condition.

[24] Mrs. Plummer describes an eight-year relationship with Ms. Thompson-Walker, a “deposit agent on a contract with Scrivens Family Companies”. The relationship appears to have grown from exclusively professional to one of friendship, with Ms. Thompson-Walker spending personal time with Mrs. Plummer on at least a weekly basis and speaking with her by telephone every second day. Ms. Thompson-Walker’s husband prepared Mrs. Plummer’s two most recent tax returns. He also joins his wife on occasion to visit with Mrs. Plummer.

[25] Mrs. Plummer believes that Ms. Thompson-Walker, her husband, and Ms. Kennedy are genuinely concerned for her well-being and have her best interests at heart. She describes a daily life which is well-managed – on her own to the extent possible, with the support of the two co-respondents, and by way of services within the community. Mrs. Plummer’s view is that the applicant’s involvement in her care has declined to minimal time on his part and very little care by him.

[26] Included as an exhibit to the affidavit of Mrs. Plummer is a copy of an Assessment Report prepared in May/June 2015. The report was prepared on the basis of a referral by Ms. Mrs. Plummer’s family physician. The “Reasons for Referral” are said to be, “for evaluation of her ability to remain at home in the context of slowly worsening dementia, and management of her dementia”. The report is authored by A. Masterson, M.S.W., R.S.W, who concludes that Mrs. Plummer:

• Requires a consultation with a geriatric psychiatrist for recommendation with respect to medication to dementia;

• Would benefit from a hired companion in an effort to decrease social isolation;

• Has appropriate strategies in place to permit her to remain in her home; and

• Does not require treatment for delusions she is experiencing because the delusions are not distressing her.

[27] The author of the report recognizes that it is Mrs. Plummer’s “strong desire” to remain in her home.

Preliminary Matter

[28] Counsel for the applicant informed the Court that an agreement had been reached with Mrs. Plummer, through her counsel, for the inclusion of the Terms in the Order for Directions. However, within a matter of minutes of the agreement being reached, counsel for Mrs. Plummer retracted her client’s agreement in that regard. Counsel for the applicant advised the Court that she was in a position to file affidavit evidence on the existence of the agreement and the retraction of it.

[29] Counsel for Mrs. Plummer informed the Court that she did not and does not have instructions to agree to the inclusion of the Terms in the Order for Directions. It is Mrs. Plummer’s position that production issues are to be dealt with, if necessary, at a later date.

[30] I advised Counsel for the applicant that if the applicant wished to proceed with argument on the existence of the agreement described in paragraph 26 the matter would have to be adjourned to permit the exchange of affidavit materials and, if necessary, cross-examinations. Counsel for the applicant chose to proceed with argument on the merits of the inclusion of the Terms in the Order for Directions.

ISSUE NO. 1: Order for Directions – The Terms

a) Applicant’s Position

[31] The applicant’s position is that:

• The Terms are “typical” in a matter of this kind;

• The inclusion of the Terms in the Order for Directions is a cost-effective approach to deal with production issues which will arise in the event it is determined that Mrs. Plummer lacks capacity; and

• If the Terms are not included in the Order for Directions at this time, then it will be necessary for at least one of the parties to bring a motion for production. Such a motion, if made at a later date, would result in a delay of the matter being finally resolved and an increase in the costs incurred by the parties.

b) Position of Mrs. Plummer

[32] It is Mrs. Plummer’s position that:

• The inclusion of the Terms in an Order for Directions at this time is premature and/or unnecessary – because Mrs. Plummer may be found to have capacity and the application will not be pursued further;

• The Terms would, in any event, lead to uncertainty if the capacity assessor finds that Mrs. Plummer lacks capacity; and

• Proposed Paragraph 4b as proposed is too broad in its scope.

[33] The potential uncertainty referred to above is in the context of the representation and rights of an individual whose capacity is called into question. If the capacity assessor determines that Mrs. Plummer lacks capacity, counsel for Mrs. Plummer may require directions from the Court as to how to address production issues. From whom would counsel for Mrs. Plummer obtain instructions with respect to the production issues? Would the instructions be provided by: a) Mrs. Plummer whose capacity is in issue; or b) Ms. Thompson-Walker, whose authority to act as attorney for property is uncertain (because Mrs. Plummer’s capacity in December 2014 is in issue)?

[34] Mrs. Plummer takes issue with the scope of proposed paragraph 4b, which calls for the production of Mr. Honey’s “legal file” and provides for Mr. Honey to be “relieved of any solicitor client privilege that may attach to the documents and information”. Mrs. Plummer’s position is that if an order is made, now or at a later date and requiring Mr. Honey to disclose documents and information from his file, the disclosure is to be limited to the portion of his file relating to the drafting and execution of the powers of attorney. The portion of Mr. Honey’s file relating to a will also executed in December 2014 is irrelevant to this matter. Mrs. Plummer acknowledges that there may be some overlap between the ‘will portion’ and the ‘power of attorney portion’ of the file, in particular as relates to Mr. Honey’s assessment of Mrs. Plummer’s ability to provide him with instructions. It is only to the extent of any such overlap that the ‘will portion’ of Mr. Honey’s file is to be produced.

c) Position of Ms. Thompson-Walker

[35] Counsel for Ms. Thompson-Walker advised the Court that she had only recently been retained. During the week prior to the return of the application she accepted service on behalf of her client of the application record. Ms. Thompson-Walker, who is jointly and severally with the applicant the attorney for personal care and the sole attorney for property, has not to date exercised any of her powers pursuant to the powers of attorney dated December 2014. To the date of the hearing, Mrs. Plummer has been making her own decisions with respect to both property and personal care.

[36] Ms. Thompson-Walker also has concerns with respect to the uncertainty which might arise if the Terms are included in the Order for Directions. It is Ms. Thompson-Walker’s hope that the parties would be able to agree, if necessary, upon the provisions of a production order after the capacity assessment is completed and in the event Mrs. Plummer is found to be incapable of managing one or both of property and personal care.

d) Discussion

[37] The Terms give rise to a number of procedural and substantive concerns.

[38] From a procedural perspective, the Terms do not fulfill the requirements of rule 37.07(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as amended (“the Rules). That sub-rule requires that, “The notice of motion shall be served on any party or other person who will be affected by the order sought, unless these rules provide otherwise.” Sub-rules 37.07 (2) and (3) set out exceptions to sub-rule 37.01(1), delineating the circumstances in which service of a notice of motion is not required. The exceptions – service impracticable or unnecessary and delay entailing serious consequences, respectively - do not apply in this matter.

[39] The healthcare professionals and institutions and Mr. Honey fall within the scope of “other person[s] who will be affected by the order sought”. Any one or more of them may wish to respond to the motion, in particular with respect to matters of patient confidentiality and solicitor-client privilege. I find that there is no basis to dispense with the requirement for service on the non-parties of the record related to the Order for Directions.

[40] There are also concerns as to the substance of each of the Terms. Paragraph 4a, as proposed, calls for the production and delivery to the applicant of Mrs. Plummer’s “medical records for the period commencing in October 2012.” Nowhere in the application record is there a list of the specific medical records to be produced and delivered. The only records required for the purpose of the application, if pursued, are those which relate to Mrs. Plummer’s capacity. It is entirely possible that the records of some of the health-care professionals by whom Mrs. Plummer has been seen since October 2012 have no relevance to the issue of capacity. It would be an unreasonable intrusion of Mrs. Plummer’s privacy to require the production of “all medical records” without consideration to the issue of relevance. I find that paragraph 4a as proposed is too broad in scope.

[41] Paragraph 4b, as proposed, is also too broad in scope. That paragraphs calls for solicitor-client privilege to be waived in its entirety. As noted on behalf of Mrs. Plummer, the only portion of Mr. Honey’s file that may be relevant to the issues on the application is that with respect to the powers of attorney. That portion of the file includes Mr. Honey’s assessment of his client’s capacity to give the continuing powers of attorney in December 2014.

[42] When considered in the context of the provisions of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“the Act”) the Terms are not well-considered and are likely unworkable. It is clear from the respective positions of the applicant and Mrs. Plummer that for the purpose of the Order for Directions they each failed to address the distinctions made in the Act between an individual lacking capacity to give a continuing power of attorney and an individual being declared incapable of managing property or of personal care.

[43] The Terms do not reflect that pursuant to the Act the capacity to give a continuing power of attorney (whether for property or personal care) and capability to manage property or to manage personal care are treated as distinct issues. The Act sets out specific criteria with respect to an individual’s ‘capacity’ and as to when an individual is ‘incapable’:

• Section 6 of the Act defines when an individual is incapable of managing property.

• Section 8 of the Act prescribes a seven-part test to be applied when determining whether an individual has the capacity to give a continuing power of attorney for property.

• Section 9 of the Act provides that, “a continuing power of attorney [for property] is valid if the grantor, at the time of executing it, is capable of giving it, even if he or she is incapable of managing property.”

• Section 45 of the Act sets out a very detailed test to be considered in assessing whether a person is incapable of personal care.

• Section 47(1) of the Act prescribes a two-part test to be applied when determining whether an individual has the capacity to give a continuing power of attorney for personal care.

• Section 47(2) of the Act provides that, “A power of attorney for personal care is valid if, at the time it was executed, the grantor was capable of giving it even if the grantor is incapable of personal care.”

[44] The extent to which the Terms are unworkable is demonstrated by the following example. The capacity assessor determines that Mrs. Plummer is incapable of managing her personal care but capable of managing her property. Capability to manage personal care requires consideration of the factors listed in section 45 of the Act – health care, nutrition, shelter, clothing, hygiene, safety, or an inability to appreciate the reasonably foreseeable consequences of a decision or a lack of decision. The determination that Mrs. Plummer is incapable of managing her personal care may be restricted, for example, to an inability to provide for nutrition. Based on the wording of the Terms, that singular conclusion on the part of the capacity assessor is sufficient to trigger the production of medical records and of Mr. Honey’s file. This example is only one of many potential permutations and combinations of the findings which the capacity assessor may make.

[45] The outcome of the capacity assessment and the findings that the capacity assessor may make are entirely uncertain. It is not appropriate, in light of that uncertainty, to predict what productions, if any, may be required from non-parties.

[46] Counsel for the applicant was given an opportunity to provide a revised version of the Terms for the consideration of the respondents and the Court. Counsel did not provide any revised wording for consideration.

[47] For the reasons set out above, the Terms are not included in the Order for Directions. An Order for Directions is made on the other terms agreed upon by the parties who appeared before me, with some revision. Paragraphs 1 and 2 of the draft Order for Directions are revised to fully comply with the provisions of the Substitute Decisions Act and for the sake of clarity. The revisions made are as follows:

a) In compliance with section 79(2)(b) of the Act, the Order for Directions includes a term compelling Mrs. Plummer to permit the capacity assessor to enter her home for the purpose of the assessment;

b) In compliance with sections 79(2)(c), 79(3), and 79(4)), Mrs. Plummer’s home is identified as the place at which the capacity assessment is to be performed; and

c) In paragraph 1 of the Order for Directions, the assessments to which Mrs. Plummer is compelled to submit are described in reference to section 6 (“incapable of managing property”) and section 45 (“incapable of personal care”) of the Act.

ISSUE NO. 2: The Respondent, Ms. Kennedy

[48] Ms. Kennedy is not named in any of the documents which are considered for the purpose of the motion for an Order for Directions. Ms. Kennedy’s request for the application against her may be entirely reasonable. However, at the return of the matter before me the applicant had not had an opportunity to consider Ms. Kennedy’s request and Ms. Thompson-Walker had only recently retained counsel. The applicant and Ms. Thompson-Walker may wish to consider the terms, if any, upon which the application as against Ms. Kennedy is dismissed. It would be unfair to those parties not to permit them the opportunity to consider such terms in response to Ms. Kennedy’s request for the application against her to be dismissed.

[49] For those reasons, I do not grant Ms. Kennedy’s request for an order dismissing the application as against her.

Summary

[50] In summary, I order as follows:

1. An Order for Directions is made on the terms set out in Schedule ‘A’ to this Endorsement.

2. The request for an order dismissing the application as against Ms. Kennedy is dismissed, without prejudice to Ms. Kennedy pursuing an order for dismissal at a later date.

Costs

[47] In the event the parties are unable to agree on costs of the motion with respect to an Order for Directions:

1. The applicant shall deliver submissions with respect to costs: a) limited to a maximum of three-pages; and b) no later than 10 business days following the date of release of this Endorsement;

2. The respondents shall deliver submissions with respect to costs: a) limited to a maximum of three-pages; and b) no later than 15 business days following the date of release of this Endorsement;

3. The applicant shall deliver reply submissions with respect to costs: a) limited to a maximum of two pages; and c) no later than 20 business days following the date of release of this Endorsement; and

4. All costs submissions shall comply with Rule 4 of the Rules of Civil Procedure.

Date: July 30, 2015

Justice S. Corthorn

OTTAWA

COURT FILE NO.: 15-64365

DATE: 2015/07/30

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: William Richard Plummer, Applicant

AND

Edith Gweneth Plummer,

Barbara Thompson-Walker, in her capacity as Power of Attorney for Property for Edith Plummer,

Marilyn Kennedy, in her capacity as

Power of Attorney for Personal Care for Edith Plummer, and

The Ontario Public Guardian and Trustee

BEFORE: Madam Justice Sylvia Corthorn

COUNSEL: Miriam Vale Peters for the Applicant

Yasmin M. Vinogrod for the

Respondent, Edith Gweneth Plummer

Kathleen P. McDormand for the Respondent, Barbara Thompson-Walker

ENDORSEMENT

Justice S. Corthorn

Released: July 30, 2015

Schedule ‘A’

ORDER FOR DIRECTIONS

1. THIS COURT ORDERS that the respondent, Edith Gweneth Plummer (“Mrs. Plummer) shall submit to an assessment as to whether she is incapable of:

a) Managing property, within the meaning of section 6 of the Substitute Decisions Act, S.O. 1992, c. 30 (“the Act); and/or

b) Personal care, within the meaning of section 45 of the Act personal care.

2. THIS COURT ORDERS THAT Mrs. Plummer shall submit to an assessment as to her capacity to give testamentary instructions and her capacity to give a continuing power of attorney for property and a power of attorney for personal care.

3. THIS COURT ORDERS THAT the assessments referred to in paragraphs 1 and 2 shall be carried out by Marianne Daley on September 17, 2015 at the home of Mrs. Plummer and that Mrs. Plummer shall permit Marianne Daley entry to the Plummer home for the purpose of the assessments.

4. THIS COURT ORDERS that the balance of the application shall be dealt with as follows:

a) The respondents shall serve all responding affidavits within 30 days after the assessment report is provided to counsel, or later if otherwise agreed to by the parties;

b) The applicant shall serve all reply affidavits, if necessary, within 15 days after receipt of the responding affidavits, or later if otherwise agreed to by the parties;

c) Cross-examinations shall be completed by no later than 30 days after receipt of the responding affidavits, or later if otherwise agreed to by the parties.

d) Answers to undertaking shall be delivered within 30 days from the completion of cross-examinations, or later if otherwise agreed to by the parties.

e) Any motions arising from the undertakings and/or cross-examinations shall be served by no later than 14 days after the answers to undertakings were to be provided, or later if otherwise agreed to by the parties;

f) The applicant’s factum shall be served no later than 14 days before the date on which the application is returnable;

g) The respondents’ facta shall be served no later than 7 days before the date on which the application is returnable; and

h) The application shall be adjourned to the first available date after the steps listed in paragraphs (a) through (e) above are completed.

5. THIS COURT ORDERS that the parties may seek further directions from this Court if necessary.