COURT FILE NO.: CV-15-6152

DATE: 2015/09/28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Teddy Allan Anderson and Steven Dean Anderson v. Ann Lynn Lamontagne

BEFORE: Ellies J.

COUNSEL: Paul Bragagnolo, for the Applicants (Responding parties)

Andrew Lawson, for the Respondent (Moving party)

HEARD: September 25, 2015

ENDORSEMENT

[1] On May 15, 2015 I made an order, on consent, requiring Ms. Lamontagne to pass her accounts as attorney for Lloyd Anderson under a continuing power of attorney dated October 23, 2012. Ms. Lamontagne now moves for an order vacating my earlier order or, in the alternative relieving her from her obligations under that order.

[2] On her behalf, counsel for Ms. Lamontagne argues that the May 15 order is not necessary, as Ms. Lamontagne has been paying for expenses relating to Lloyd Anderson (whom I will call “Lloyd”, in order to avoid confusion with the names of his sons, the applicants) from a joint bank account.

[3] Ms. Lamontagne’s request is denied for two principles reasons. First, I am not persuaded on the evidence before me that I have the authority to grant the relief requested under the Rules of Civil Procedure R.R.O. 1990, O. Reg. 194. Second, even if I believed I could, I would not vary my earlier order. In my view, Ms. Lamontagne should pass her accounts.

[4] The notice of motion refers to rule 37.14 as authority for Ms. Lamontagne’s requests. Rule 37.14(1) provides:

(1) Motion to set aside or vary – A party or other person, who,

(a) is affected by an order obtained on motion without notice;

(b) fails to appear on a motion through accident, mistake or insufficient notice; or

(c) is affected by an order of a registrar,

may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion.

[5] None of the three circumstances referred to the rule applies to this motion. The order was not obtained without notice, no failure to appear on the earlier motion occurred, and the order was not made by the registrar.

[6] During argument, I referred counsel to rule 59.06(2). That rule reads:

(2) Setting aside or varying – A party who seeks to,

(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;

(b) suspend the operation of an order;

(c) carry an order into operation; or

(d) obtain other relief than that originally awarded,

may make a motion in the proceeding for the relief claimed.

[7] However, the jurisprudence is clear that consent orders should only be varied under rule 59.06 in certain, very limited circumstances. In Monarch Construction Ltd. v. Buildevco Ltd. (1988), 9 A.C.W.S. (3d) 321, 26 C.P.C. (2d) 164 (Ont. C.A.), the court held, at para 3:

A consent judgment is final and binding and can only be amended when it does not express the real intention of the parties or where there is fraud. In other words, a consent judgment can only be rectified on the same grounds on which a contract can be rectified. Here, there was no allegation of fraud and, in our opinion, there was no basis on the material before the local judge on which she was entitled to grant rectification.

[8] The same is true in the case before me. The sole basis upon which Ms. Lamontagne seeks to set aside the earlier order to which she consented is the fact that she is a joint bank account holder with Lloyd. However, she has been a joint bank account holder with Lloyd since December, 2012, long before the consent order was made.

[9] For these reasons, I do not believe that I have authority to grant either of the requests made in the motion. As I indicated earlier, even if I did, I would not.

[10] As I will mention below, there is an issue as to whether the continuing power of attorney of October, 2012, is valid. There is no issue, however, that Lloyd is now incapable of managing his own affairs. I am advised that he now resides in a facility in Perth, Ontario. I can see no reason and I am aware of no legal authority by virtue of which Ms. Lamontagne should be relieved of her duty to account for money spent for the benefit of Lloyd simply because they now share a bank account. Based on her own evidence, from the time they began living together in 1978, Ms. Lamontagne and Lloyd shared expenses. However, there was no co-mingling of their incomes until she attended with him at the bank on December 28, 2012 to open the joint account. If anything, in my opinion, these circumstances make it all the more important for her to be able to account for the funds.

[11] The applicants have filed an affidavit to which is appended a copy of a note from Dr. Richard Katsuno dated November 28, 2013. In the note, he expresses his opinion that Lloyd was incapable of making his own medical and legal decisions as of December 12, 2012. This was the date upon which Lloyd attended with Dr. Foell, a neurologist. Dr. Foell administered a Mini Mental State Examination, the results of which indicated that Lloyd was severely affected by Alzheimer’s disease. During argument, I queried counsel for the applicants as to whether the court’s parens patriae jurisdiction required it to deal with the issue of the validity of the power of attorney. If the power of attorney is invalid, there is an earlier, presumably valid, continuing power of attorney in which the applicants are named as attorneys.

[12] After reflection, I have decided that no order need be made by this court in these proceedings with respect to the October 23, 2012 continuing power of attorney. The note from Dr. Katsuno does not qualify as a medical report pursuant to s. 52 of the Evidence Act, R.S.O. 1990, c. E.23 and Rule 53 of the Rules of Civil Procedure, even if the applicants had served the necessary notice. While such hearsay evidence may be admissible on an application under rule 39.01, a photocopy of a doctor’s note would not be sufficient, in my view, to find the power of attorney invalid. This is especially true in light of the evidence that Steven Anderson raised no issue about Lloyd’s capacity to transfer real property to a company controlled by Steven Anderson in 2013 and that neither applicant raised any concerns about Lloyd transferring his hunt camp to them later that same year.

[13] Should the applicants wish to challenge the validity of the continuing power of attorney, separate proceedings will be necessary.

[14] For these reasons, the motion is dismissed.

[15] During the argument of the motion, counsel agreed that costs in the amount of $1,500 should be awarded to the successful party. I also agree. Therefore, Ms. Lamontagne shall pay to the applicants their costs in the amount of $1,500, all inclusive, within 30 days of the date of the release of this decision.

Ellies J.

Date: September 28, 2015