Bickram v. Bickram, 2015 ONSC 705

COURT FILE NOS: CV-11-438568; 03-108/13; CV-12-470047; CV-13-0003108-00es

DATE: 20150205

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Boodnee Bickram, Applicant

• and -

Sidney Bickram, Respondent

RE: Latchman Bickram and Shirley Ong, Applicants

• and –

Boodnee Bickram, Respondent

RE: Sidney Bickram, Plaintiff

• and –

Latchman Bickram, Ramsaran Bickram, Shirley Ong, Kuntie Rabi, and Rajpaul Bickram, Defendants

BEFORE: Madam Justice L.B. Roberts

COUNSEL: Oscar Strawczynski, for the Applicants and Defendants

Sidney Bickram, appearing in person

REASONS FOR DECISION

Overview:

[1] These proceedings collectively represent the sad falling out among members of a large family. A brief chronology and description of the various proceedings and their status are useful as background.

[2] The applicant, the almost 94-year-old widow, Boodnee Bickram, assisted by several of her middle-aged children, started an application on November 2, 2011. On May 14, 2012, she instigated a motion for a finding of contempt against one of her sons, Sidney Bickram. In her application and motion, Mrs. Bickram alleges that Sidney Bickram duped her into transferring to him one of her Trinidadian properties, “the Palmiste property,” leaving her only with a life interest, and that he improperly withdrew funds from her bank accounts without her authorization.

[3] Mrs. Bickram’s application culminated in the January 20, 2012 Order of Justice George Strathy, as he then was. On January 20, 2012, Strathy J. ordered that the Palmiste property be transferred immediately by Sidney Bickram back to his mother and that he provide an accounting of the monies that he withdrew from his mother’s bank accounts.

[4] In March 2013, Sidney Bickram provided an accounting of his withdrawal and handling of his mother’s funds. However, he did not take any steps to transfer the Palmiste property to his mother until he signed the requisite deed documentation in court on September 2, 2014.

[5] Prior to providing an accounting and signing the transfer of the Palmiste property, Sidney Bickram commenced an action bearing court file no. CV-12-470047 on December 14, 2013 against five of his siblings. In his action he alleges that his siblings mishandled his father’s estate and his mother’s monies, and that they deceived their mother into putting their names on title to “the Hermitage property,” which Sidney Bickram and his mother held as joint tenants.

[6] On January 16, 2013, without notice to his siblings who were represented by counsel, in his action bearing court file no. CV-12-470047, Sidney Bickram took steps to note Latchman Bickram in default. Sidney Bickram’s statement of claim was challenged by motion dated April 18, 2013. Sidney Bickram’s defendant siblings instigated this motion to strike his statement of claim as showing no reasonable cause of action and as an abuse of process because it constitutes a collateral attack on Justice Strathy’s January 20, 2012 Order. They also sought to set aside the noting in default, to which Sidney Bickram agreed before this motion was heard.

[7] By notice of motion dated April 18, 2013, when Sidney Bickram was represented by counsel, he brought a motion to stay the January 20, 2012 Order of Strathy J., to obtain the appointment of a litigation guardian for Boodnee Bickram, for directions, including a trial of an issue regarding actions bearing Court File Nos. CV-11-438568 and CV-12-470047, for the trial together of these two actions, and to transfer these actions to the Estates List.

[8] By Order dated May 14, 2013, on the consent of the parties, in addition to timetabling the hearing of these various matters, I ordered that all of these proceedings and all related proceedings be transferred to the Estates List and bear the same Estates court file number. The Estates Court File No. CV-13-0003108-00es was assigned to these proceedings.

[9] On September 17, 2013, under Court File No. 03-108/13, two of Sidney Bickram’s siblings, Latchman Bickram and Shirley Ong, who are among the defendants in Sidney Bickram’s action bearing Court File No. CV-12-470047, commenced an application to have Boodnee Bickram declared incapable of managing her own property and to be appointed as guardians of property for their mother.

[10] Following the last hearing date of September 2, 2014, by an unsolicited letter dated October 20, 2014, received on October 22, 2014, Sidney Bickram forwarded to me directly, without the consent of the other parties, a Notice of Discontinuance in actions bearing Court File Nos. CV-12-470047 and CV-13-0003108-00es in which he appears to discontinue the proceedings in Court File Nos. CV-13-0003108es and CV-11-438568 against the defendants in only those proceedings. Although he indicates in his covering letter that he wishes to discontinue the action bearing Court File No. CV-12-470047, Sidney Bickram does not expressly state this in his Notice of Discontinuance.

[11] The following matters remained for the court’s determination:

i. Sidney Bickram’s request for an adjournment of the September 2, 2014 hearing;

ii. Sidney Bickram’s motion to stay the January 20, 2012 Order of Strathy J.;

iii. Mrs. Bickram’s motion for contempt against Sidney Bickram for his failure to comply with the January 20, 2012 Order of Strathy J.;

iv. the defendants’ motion to strike out Sidney Bickram’s statement of claim without leave to amend and dismiss his action; and

v. the application brought by Latchman Bickram and Shirley Ong to appoint guardians of property for Boodnee Bickram.

Disposition of the Proceedings:

i. Sidney Bickram’s request for an adjournment

[12] On Friday, August 29, 2014, Sidney Bickram filed an affidavit and a notice of intention to act in person. His former lawyer, Jack Copelovici also filed a letter with the court. Sidney Bickram asked for an adjournment in order to retain new counsel, claiming that without warning, Mr. Copelovici told him that he would no longer act for him.

[13] On September 2, 2014, I did not allow Sidney Bickram’s request for an adjournment of the motions for the reasons that I expressed orally and which I summarize here.

[14] On August 29, 2014, without notice to Mr. Copelovici, Sidney Bickram swore an affidavit alleging, among other things, that Mr. Copelovici was not ready to proceed on August 11, 2014, a previously scheduled hearing date that was adjourned because of Mr. Copelovici’s illness, that Mr. Copelovici was not in the hospital as he had represented to the court, and that Mr. Copelovici failed to file the requisite motion materials on Sidney Bickram’s behalf.

[15] I was not prepared to accept Sidney Bickram’s bald and unsubstantiated allegations. First of all, Mr. Copelovici had filed all of the materials necessary for the hearing of the proceedings by the August 11th return date. Moreover, he had engaged counsel on his behalf, Mr. M. Catzman, to speak to the matter of the adjournment and counsel appearing had called Mr. Copelovici’s wife in the course of the August 11th attendance to canvass a return date. I do not believe that Mr. Copelovici, his wife, and Mr. Catzman would have lied to this court, particularly as Mr. Copelovici was ready to proceed on Mr. Bickram’s behalf on August 11, 2014.

[16] Further, Sidney Bickram’s claim that without warning Mr. Copelovici refused to continue to act for him misrepresented the fact that without notice to Mr. Copelovici, Sidney Bickram swore and served an affidavit in which he accused Mr. Copelovici of serious professional misconduct (which I do not accept occurred for the reasons already given). As a result of Sidney Bickram’s actions, Mr. Copelovici understandably concluded that he could not continue to act because of his client’s obvious loss of confidence in him.

[17] Moreover, in contradiction of Sidney Bickram’s assertion to the court that he still wanted Mr. Copelovici to act for him, I also noted on the back page of his affidavit Sidney Bickram had indicated that he was acting in person, which back page he had prepared before he spoke to Mr. Copelovici, and that he also subsequently signed and filed a notice of intention to act in person.

[18] Sidney Bickram had ample time since the August 11th adjournment to seek new counsel, if he wished to do so. This is not the first time that Sidney Bickram had come to court requesting an adjournment or seeking to retain new counsel at the last minute. Before Mr. Copelovici, Sidney Bickram was ably albeit briefly represented by Charlena Claxton who was then replaced by Mr. Copelovici, who sought and was granted an adjournment in order to take further steps and file additional materials on Sidney Bickram’s behalf.

[19] It was of course Sidney Bickram’s right to retain any counsel he chose or to act in person if he desired to do so. However, he had to bear the consequences of his choices, especially when he exercised them on the eve of the hearing of these matters.

[20] As there was no basis for granting the further adjournment sought by Sidney Bickram, I ordered that the hearing of these proceedings continue.

ii. Sidney Bickram’s motion to stay the January 20, 2012 Order of Strathy J.

[21] On September 2, 2014, I dismissed Sidney Bickram’s motion to stay Strathy J.’s January 20, 2012 Order with written reasons to follow. These are those reasons.

[22] First, Sidney Bickram had inexcusably and unaccountably delayed in bringing this motion.

[23] On May 25, 2012, Justice Kenneth Campbell granted Sidney Bickram an adjournment expressly for Sidney Bickram’s stated purpose of challenging Strathy J.’s January 20, 2012 Order.

[24] Sidney Bickram did not take the steps directed by Campbell J. to challenge Strathy J.’s January 20, 2012 Order or to retain counsel; however, in the course of his examination in aid of execution on June 8, 2012, Sidney Bickram stated that he was still challenging Strathy J.’s Order.

[25] As at the date of my Order of October 2, 2012, when this matter was first returnable before me, Sidney Bickram had still not taken any steps to appeal or stay Strathy J.’s Order.

[26] As recorded in the transcript from the October 2, 2012 hearing, in response to the court’s question as to why he had not yet taken any step to challenge Strathy J.’s January 20, 2012 Order, Sidney Bickram claimed that legal counsel had not told him that he had to file anything and that he could just go to court and tell his side of the story.[^1]

[27] I do not accept that legal counsel would have given Sidney Bickram this patently incorrect advice that runs counter to the most rudimentary knowledge of the Rules of Civil Procedure. Moreover, in accordance with Campbell J.’s May 25, 2012 Order, Sidney Bickram knew that he had to take action if he intended to challenge Strathy J.’s January 20, 2012 Order and that he had to bring “the documentation in court to establish that he has taken the step.”

[28] In his Endorsement of December 19, 2012, O’Connor A.C.J. dismissed Sidney Bickram’s motion to extend the time for his appeal of Strathy J.’s January 20, 2012 Order because Sidney Bickram had given an inadequate explanation for his delay in appealing when he had known of the Order of Strathy J. since at least May 25, 2012 and had not taken any steps in the Superior Court of Justice to set it aside.

[29] It was not until April 18, 2013 that Sidney Bickram finally brought a motion to stay Strathy J.’s Order, notwithstanding that he had access to legal counsel, had been formally represented in these proceedings by legal counsel, and had been directed by the court on a number of occasions to take the appropriate steps if he wished to challenge Strathy J.’s Order.

[30] I do not accept as valid any of the many and varied excuses that Sidney Bickram has put forward in an unsuccessful attempt to excuse and justify his delay. None of his various excuses adequately explains his delay; moreover, his excuses are contradictory of each other.

[31] First, I do not accept that Sidney Bickram was not served with Mrs. Bickram’s application or with the Orders of Strathy J., as Sidney Bickram has alleged. Rather, the evidence establishes that he was attempting to evade service.

[32] The January 12, 2012 Order of Strathy J., adjourning Mrs. Bickram’s application for a hearing on January 20, 2012, among other terms, indicates that Sidney Bickram was properly served as it appeared from the affidavit of service of James Keezer sworn November 8, 2011. In his affidavit, Mr. Keezer deposed that he made two unsuccessful attempts to serve Sidney Bickram personally with Mrs. Bickram’s application record, returnable January 12, 2012 and that on November 5, 2011, he left a copy with Sidney Bickram’s daughter at Sidney Bickram’s home and mailed a copy of the record to Sidney Bickram at the same address.

[33] In his January 12, 2012 Endorsement, Strathy J. ordered that Sidney Bickram was to be served personally with a notice of return of application and with Strathy J.’s Endorsement.

[34] In his affidavit of service sworn January 19, 2012, Jeremiah McCarthy details his three unsuccessful attempts to effect personal service of Mrs. Bickram’s application materials and Strathy J.’s January 12, 2012 Endorsement and Order on Sidney Bickram and his service on January 14, 2012 on an adult member of Sidney Bickram’s household who was likely one of Sidney Bickram’s daughters.

[35] In his January 20, 2012 Endorsement, Strathy J. wrote that, “It appears that [Sidney Bickram] is evading service” and that in view of Sidney Bickram’s failure to respond, the court had no alternative but to “conclude that the allegations are well-founded” and to order Sidney Bickram to return the Palmiste property and provide an accounting to Mrs. Bickram.

[36] The unchallenged evidence of his brother, Rajpaul Bickram, is that on January 29, 2012, he personally served Sidney Bickram with the January 12 and 20, 2012 Orders of Strathy J. As noted in the May 25, 2012 Endorsement of Campbell J. and as referenced by O’Connor A.C.J. in his December 19, 2012 Endorsement, Sidney Bickram had known of Strathy J.’s January 20, 2012 Order since at least May 25, 2012 and had not taken any steps to set it aside.

[37] During his examination in aid of execution held on June 8, 2012, Sidney Bickram was shown Strathy J.’s January 20, 2012 Order and admitted that he had seen it before.[^2]

[38] In his October 1, 2012 affidavit and during the October 2, 2012 contempt motion hearing, Sidney Bickram admitted that he had received Strathy J.’s January 20, 2012 Order.[^3]

[39] In his November 20, 2012 affidavit filed in support of his motion to the Ontario Court of Appeal to permit late filing of his notice of appeal, Sidney Bickram attached his October 1, 2012 affidavit and also deposed, contrary to his sworn evidence during his June 8, 2012 examination in aid of execution and during the October 2, 2012 hearing that the first time that he actually saw the January 20, 2012 Order of Strathy J. was in October 2012, although it “may” have been shown to him during the June 8, 2012 examination.

[40] However, in paragraph 4 of his November 20, 2012 affidavit, Sidney Bickram contradicted his evidence in paragraph 3 that he did not see the January 20, 2012 Order before October 2012: he also deposed that on February 9, 2012, he attended at the LawHelpOntario Office and sought advice with respect to the “documentation given to me with respect to the January 12, 2012 scheduled hearing.” The LawHelpOntario form attached as Exhibit 4 to his affidavit references the contents of the January 20, 2012 order namely the “Ontario court order for transfer of land in Trinidad.” This information must have come from Sidney Bickram or from the documentation that he said he brought with him to LawHelpOntario.

[41] Sidney Bickram also alleges that he could not deal with his mother’s application or the attendances before Strathy J. because he had injured his eye and had severe difficulties in reading. I do not accept his evidence because his evidence as to when he injured his eye and his ability to read was internally inconsistent and contradictory, as follows.

• In paragraph 5 of his October 1, 2012 affidavit, Sidney Bickram claimed that he had severe vision disabilities and could not read the materials:

The reason I have this much difficulty in my actions and recollections is very clearly explained by the fact that in December of 2011 I was injured in an accident when I receive [sic] 124 stitches above my eye. Since that time I have not been able to read or drive a vehicle and have been dependent on others, including my son to read material to me as I was not able to read it myself. (my emphasis)

• However, in his April 18, 2013 affidavit, Sidney Bickram deposed that he fell and cut open his eyebrow on January 7, 2012 and as a result was too ill to attend the attendances before Strathy J. Attached Exhibit 6 to his affidavit is a copy of the hospital record of his attendance on January 7, 2012 respecting the injury to his right eyebrow and a 5 cm laceration to his eyelid, which Sidney Bickram deposed in paragraph 6 of his affidavit confirmed his condition. According to the record, Sidney Bickram’s injury was classified as a “mild head injury” and he was to be treated with polysporin and was to follow up with his own doctor, and he was released without admission to hospital. Most significant is that the record notes “no visual problems.” Sidney Bickram has not produced any records from his own physician nor has he given any evidence about any follow up with his own doctor.

• At his June 8, 2012 examination in aid of execution, Sidney Bickram said nothing about any vision impairment. Moreover, he was shown and read documents, including Strathy J.’s January 20, 2012 Order, and did not indicate any difficulty in reading. Further, Sidney Bickram’s evidence that he could not read or drive a vehicle was also contradicted by his evidence given on June 8, 2012 that to look for a job, he drove around in his van:

A. “…I drive around – see a job going and I ask, ‘Do you guys need help? Need electrician? Need something?’

Q. When was the last time you found work doing that?

A. Two weeks ago, three weeks ago.[^4]

Q. Do you have a car?

A. A van, yeah.

Q. What make?

A. Ford.

Q. What year?

A. ’97.

Q. What do you use that van for?

A. Looking for work.[^5]

• In the course of the October 2, 2012 hearing, Sidney Bickram acknowledged that he could read the application record and never indicated that he had difficulty reading it.[^6]

• However, contrary to his evidence that he could read and drive without assistance, in his November 20, 2012 affidavit Sidney Bickram again deposed at paragraph 3 that he was vision impaired during the examination in aid of execution on June 8, 2012 and remains vision impaired.

[42] Aside from the stark contradictions in his evidence that I have just reviewed, Sidney Bickram has filed no medical evidence that would support his claim of vision impairment. The only medical record that Sidney Bickram filed and on which he relied stated that he had “no visual problems” as of the date of his attendance in hospital on January 7, 2012.

[43] I therefore reject Sidney Bickram’s evidence that he had vision problems that prevented him from responding to Mrs. Bickram’s application or from challenging in a timely way the January 20, 2012 Order of Strathy J.

[44] As a further excuse, Sidney Bickram asserts in paragraph 6 of his April 18, 2013 affidavit that he could not deal with the application before Strathy J. because he was heavily involved in comforting his brother, Soogrim Bickram, and taking care of his needs because Soogrim had been diagnosed with advanced lung cancer just prior to the court date before Strathy J. However, the doctor’s note at Tab 5 of the record indicates that Soogrim was receiving palliative chemotherapy on January 22, 2012, and not January 12 or 20, 2012, which therefore should have been no impediment to Sidney Bickram’s attendance.

[45] Soogrim Bickram, who subsequently passed away, provided an affidavit sworn on June 7, 2013 in support of Sidney Bickram’s motion to stay the January 20, 2012 Order of Strathy J. Apart from the evidentiary issue of the admissibility of the late Soogrim Bickram’s affidavit, his affidavit does not serve to corroborate Sidney Bickram’s position: Soogrim Bickram’s blanket statement in paragraph 9 of his affidavit, which he qualified with “to the extent of my knowledge”, that he confirms Sidney Bickram’s April 18, 2013 affidavit as accurate does not have that effect, especially as he also deposed in paragraph 10 that he had limited knowledge of the court proceedings in 2012. Most significantly, Soogrim did not confirm that Sidney Bickram had looked after him in or around January 12 and 20, 2012.

[46] As a result, I do not accept Sidney Bickram’s excuse that he could not attend before Strathy J. on January 12 or 20, 2012 because he was taking care of his very ill brother.

[47] Even if Sidney Bickram was too ill to attend or was looking after his brother, these excuses do not explain his inordinate delay in taking any steps to challenge the January 20, 2012 Order of Strathy J. which I have just reviewed.

[48] For these reasons, I dismissed Sidney Bickram’s motion to stay or set aside Strathy J.’s January 20, 2012 Order.

iii. Mrs. Bickram’s Motion for Contempt against Sidney Bickram

[49] To establish a case of civil contempt for breach of a court order, it must be shown that the terms of the order are clear and unambiguous, the party who disobeys the order has done so deliberately and wilfully, and the evidence must show contempt beyond a reasonable doubt.[^7]

[50] The evidence establishes beyond a reasonable doubt that Sidney Bickram knew exactly what Strathy J.’s January 20, 2012 Order required him to do and that Sidney Bickram deliberately chose not to comply with the crystal clear terms of Strathy J.’s Order to return the Palmiste property to his mother, Boodnee Bickram.

[51] In particular, as noted in the May 25, 2012 Endorsement of Campbell J. and my subsequent Orders, this court explained numerous times to Sidney Bickram that he was required to convey the Palmiste property to his mother and to provide an accounting of the monies that he had withdrawn from his mother’s bank accounts, and that he had to comply unless or until Strathy J.’s January 20, 2012 Order was set aside. At no time did Sidney Bickram indicate in court or in his affidavit material filed that he did not understand what was required of him.

[52] For example, in the course of the October 2, 2012 hearing, in response to questions posed by Mrs. Bickram’s counsel, Sidney Bickram admitted that he understood that Strathy J.’s Order required him to transfer the Palmiste property:

Q. …After me, after the attendance before Justice Campbell, you understood that it was up to you to make the transfer in Trinidad happen. Yes?

A. If that is what it reads yes, that’s what it means.

Q. And you don’t just understand that today. You understood that after Justice Campbell explained it to you, right?

A. Yes.[^8]

[53] Sidney Bickram further testified at the October 2, 2012 hearing that he knew that Campbell J. had also directed him to provide an accounting.[^9]

[54] The evidence establishes beyond a reasonable doubt that Sidney Bickram simply did not want to comply with Strathy J.’s January 20, 2012 Order. Instead, Sidney Bickram unreasonably persisted in his unjustifiable resistance to Strathy J.’s Order to return the Palmiste property and provide an accounting, and he deliberately engaged in a lengthy and expensive campaign designed to mislead the court and to frustrate Strathy J.’s Order.

[55] Mrs. Bickram’s service of her motion for contempt against Sidney Bickram had no productive effect. Sidney Bickram continued his efforts to avoid returning the Palmiste property to his mother and to provide an accounting for the monies that he admitted taking from his mother’s bank account and largely using for his own benefit such as to pay down his debts. In particular:

• In the course of his examination in aid of execution held on June 8, 2012, in response to questions as to why he had not reconveyed the Palmiste property to his mother as required by Strathy J.’s January 20, 2012 Order, Sidney Bickram’s disregard for the court’s process is manifest in his deliberately obtuse answers and his refusal to agree to transfer the Palmiste property back to his mother, as recorded at questions 120 to 126, pages 18-19 of the transcript:

Q. This Order requires that you convey that property back to your mother.

A. How? Why?

Q. Again, I ask the questions here. Have you complied –

A. You know, I have nothing to do, maybe I should go to jail.

Q. -- with this Order?

A. Spend some time.

Q. Have you complied with this Order?

A. Complied how?

Q. Presumably since there was a deed executed to transfer it to you in the first place –

A. Yeah.

Q. -- you can reconvey it to your mother by having another deed executed to transfer it back to her.

A. Who is paying for all of this?

Q. You are.

A. I’m not paying anything. I already paid to fix all the problems. I’m not paying for it.

• In paragraphs 2 and 3 of his affidavit sworn October 1, 2012, Sidney Bickram falsely deposed that he was not aware of his mother’s contempt motion in May of 2012 and that he was never served with a notice of motion for contempt nor with any other Orders other than Strathy J.’s January 12 and 20, 2012 Orders and Pollak J.’s July 6, 2012 Order, which required him to attend on October 2nd after he failed to attend on July 6th, as required by the May 25, 2012 Order of Campbell J. He made no reference in his October 1, 2012 affidavit material to his court attendance on May 25, 2012 nor to Campbell J.’s May 25, 2012 Endorsement and Order.

• Sidney Bickram’s false statement is flatly contradicted by the affidavit of service, sworn May 16, 2012, of Joe Melo who deposed that after three unsuccessful attempts at personal service, he succeeded in serving Sidney Bickram personally with Mrs. Bickram’s contempt motion record, although Sidney Bickram initially refused to accept it, and by Campbell J.’s May 25, 2012 Endorsement in which it is noted that Sidney Bickram had the contempt motion record: “The Respondent was duly personally served with this motion record and had it with him when he appeared in court today.”

• Further, in the court’s May 25, 2012 Endorsement, Campbell J. stated the following:

Mr. Bickram has been clearly advised of the gravity of the potential consequences that can result from a finding of contempt of court, and I am confident that he understands the seriousness of the situation.

Mr. Bickram has also been clearly advised that when he returns to court on July 6, 2012 he will be required to show that he has done one of two things, namely:

1. He will have taken all necessary steps to formally launch an appeal or review or challenge to the decision of Strathy J. and will have the documentation in court to establish that he has taken that step; or,

2. He will have fully complied with the requirements of the Order of Strathy J. by conveying the Palmiste Estate to the applicant (his mother) and by providing an accounting of all monies and funds withdrawn from any of the applicant’s accounts, and will have the documentation in court to establish that he has complied with the court order.

• In the course of the hearing before me on October 2, 2012, as noted at page 16 of the transcript, Sidney Bickram acknowledged that he was before Campbell J. and that he had received a copy of his May 25, 2012 Endorsement.

• In paragraph 8 of his October 1, 2012 affidavit, Sidney Bickram further states that he had the contempt motion explained to him. Campbell J.’s May 25, 2012 Endorsement indicates that the court explained the contempt motion to Sidney Bickram.

• However, in paragraph 7 of his November 20, 2012 affidavit filed in support of his motion to extend the time to appeal, Sidney Bickram falsely deposed that at the time of his examination on June 8, 2012, he was not aware that there had been a motion for contempt brought against him for non-compliance with Strathy J.’s January 20, 2012 Order and that he did not recall ever being served with such a motion. He stated “I have recently looked at the court file and was unable to find any evidence of my being made aware of such motion or having been served with the required material.”

[56] Sidney Bickram has never taken the position that he does not understand that he had to transfer the Palmiste property and provide an accounting or that he could delay doing so if he appealed or sought a stay of Strathy J.’s Orders. Indeed, this would have been an impossible position for him to have taken given the May 25, 2012 Order of Campbell J. and my Orders of October 2, 2012, January 29, 2013, March 5, 2013 and August 11, 2014 that Sidney Bickram was required to comply with Strathy J.’s January 20, 2012 Order unless and until that Order was set aside.

[57] Rather, Sidney Bickram’s position, in various forms, has been that he is unable to comply or does not have to comply, for the following different reasons:

• In his oral testimony given at the October 2, 2012 hearing, Sidney Bickram stated that he had not yet transferred the Palmiste property back to his mother because he maintained that the Palmiste property was given to him under his father’s will[^10] and that he was told by a law clerk in January of 2012, before he appeared before Campbell J., and subsequently twice by legal counsel, that “to probate this problem, they have to go with me to Trinidad”[^11] and that it should be done outside Canada.”[^12]

• In his November 20, 2012 affidavit Sidney Bickram deposed that he understood from the LawHelpOntario Office that he attended on February 9, 2012 that there was no jurisdiction in Ontario to make the January 20, 2012 Order. Attached as Exhibit 4 to his affidavit is a LawHelpOntario form on which was written in an unidentified hand: “Ontario Court order to transfer of land in Trinidad not enforceable without confirmation in Trinidad.”

• In paragraph 6 of his January 14, 2013 affidavit, Sidney Bickram deposed that he was “fully prepared to comply with the order of the Honourable Justice Strathy of January 20, 2012 but feel that a conveyance back to Boodnee Bickram while under the influence of my siblings and existing powers of attorney would amount to my acquiescence of their manipulations to deplete my mother’s assets for their own use.”

• In his affidavit sworn February 24, 2013, Sidney Bickram testified that his mother retained a life interest in the Palmiste property and that his only interest in the Palmiste property vests upon his mother’s death. He deposed that he was advised by El Farouk Hosein, Attorney of Law in Trinidad, West Indies, that he did not have a transferable vested interest in the Palmiste property to allow him to effect a transfer in accordance with Strathy J.’s January 20, 2012 Order. Sidney Bickram deposed further that Mrs. Bickram could transfer any interest in the property without his assistance.

• In Sidney Bickram’s April 18, 2013 affidavit, at para. 8 (d), he objected to the transfer of the Palmiste property to his mother on the basis that there would be no protection for himself in the event that it was ultimately found that he was properly the transferee of Mrs. Bickram’s interest in the Palmiste property and the property was transferred to a third party.

[58] In his April 18, 2013 affidavit, Sidney Bickram contradicted the narrative of the transfer set out in the unsworn letter from Mr. Hosein dated February 19, 2013, which Sidney Bickram referenced as Exhibit A to his February 24, 2013 affidavit.[^13]

[59] In particular, Mr. Hosein stated in his February 19, 2013 letter that Mrs. Bickram gave him certain instructions about conveying the Palmiste property to her sons, Ram Bickram and Sidney Bickram in May 2008 when she was in Trinidad and that she subsequently gave him instructions over the telephone from Scarborough, Canada on June 2, 2008 and returned signed documents to him by courier on June 13, 2008, which purported to give the Palmiste property to Sidney Bickram upon her death and in which property she retained a life interest.

[60] However, in paragraph 3 of his April 18, 2013 affidavit, Sidney Bickram deposed that in June 2008, he travelled to Trinidad with his mother where she executed the deed to transfer the Palmiste property to him on her death, attended at Mr. Hosein’s office to sign the documents and that his mother had a private consultation with Mr. Hosein about the transfer of the Palmiste property.

[61] In his February 24 and April 18, 2013 affidavits, Sidney Bickram does not take any issue with the narrative of the transfer as set out in Mr. Hosein’s letter of February 19, 2013 nor does he explain why his dates and description of the transfer, including Mrs. Bickram’s interactions with Mr. Hosein, are markedly different than those set out in Mr. Hosein’s letter.

[62] As a result, while I do not accept Mr. Hosein’s February 19, 2013 letter as proof as to what actually occurred with respect to the transfer of the Palmiste property, I do not accept Sidney Bickram’s version of events because of the serious unexplained discrepancies between his version and Mr. Hosein’s letter. Given that Sidney Bickram relied upon the contents of Mr. Hosein’s February 19, 2013 letter as far as the legal advice that he purportedly received, if he did not agree with Mr. Hosein’s narrative of events, he should have indicated this in his affidavit evidence. Given these issues, I am unable to determine which version is correct and can only note that there are serious unexplained discrepancies which Sidney Bickram has left unexplained.

[63] Attached as Exhibit B to the July 5, 2013 affidavit of Annamaria Furino, Mr. Strawczynski’s assistant, is the June 26, 2013 letter of H.R.M. Seunath, an attorney in Trinidad. In his letter, Mr. Seunath advised that Mrs. Bickram’s signature was not required on the deed to transfer the property and that if Sidney Bickram refused to execute the deed then the appropriate court officer duly authorized by the Ontario Superior Court could execute the deed on behalf of Sidney Bickram.

[64] By letter dated November 1, 2013, Mrs. Bickram’s counsel wrote to Sidney Bickram’s counsel and requested that Sidney Bickram execute an original deed in the form sent by Mr. H. Seunath. Mr. Strawczynski wrote that if Sidney Bickram executed the original deed, he would attend to having it registered in Trinidad “so as to effect the transfer and cure your client’s contempt of that provision of the order.”

[65] I should note that Mr. Seunath’s unsworn letter was not made compliant with the expert witness provisions of Rule 53.03 of the Rules of Civil Procedure. As a result, I do not accept Mr. Seunath’s letter as proof of what the law in Trinidad is with respect to the matters contained in his letter. However, the fact of Mr. Seunath’s letter may be treated as part of the narrative in relation to Mrs. Bickram’s contempt motion.

[66] The only further position in relation to Trinidadian law that was filed on behalf of Sidney Bickram is the very brief July 9, 2013 email from Michelle Ramnarine, a lawyer in Trinidad, which was attached as Exhibit 1 to the August 20, 2014 affidavit of Kim Vu, the assistant to Mr. Copelovici. Again, Ms. Ramnarine’s unsworn, non-Rule 53.03 compliant email is not proof of what the law is in Trinidad. In any event, Ms. Ramnarine’s email is of limited assistance because it contains only very general information: “generally matters concerning lands in Trinidad must be dealt with here in Trinidad and not outside of the jurisdiction; however since the information provided is insufficient I am limited in terms of my advice.”

[67] None of Sidney Bickram’s excuses justified his failure to comply with the January 20, 2012 Order of Strathy J. to transfer the Palmiste property back to his mother. This Court directed Sidney Bickram numerous times that he had to comply with the January 20, 2012 Order of Strathy J. unless or until the January 20, 2012 Order was set aside. The evidence that I have reviewed establishes beyond a reasonable doubt that Sidney Bickram’s failure to comply with the January 20, 2012 Order was clearly wilful and deliberate; putting aside all of his thin excuses, at the end of the day, he simply did not want to transfer the Palmiste property because he wanted to keep it for himself upon his mother’s death.

[68] As a result, I find that Mrs. Bickram has proven beyond a reasonable doubt that Sidney Bickram was in contempt of the January 20, 2012 Order of Strathy J. to transfer the Palmiste property back to his mother.

[69] On the very last hearing date in this matter on September 2, 2014, after his motion to stay Strathy J.’s Order was dismissed, Sidney Bickram finally purged his contempt by signing in court a transfer of the property back to his mother.

[70] As a result of Sidney Bickram signing the transfer, Mrs. Bickram is no longer seeking an order that Sidney Bickram be imprisoned. She is still seeking payment of all costs of her application and contempt motion in the form of a restitution order against Sidney Bickram. She is also asking for another examination of Sidney Bickram in aid of execution.

[71] With respect to Mrs. Bickram’s costs, it is well established that she is entitled to her costs on her successful contempt motion on a substantial or full indemnity scale. For the reasons already noted, Sidney Bickram had no valid reason for his failure to comply with the very clear terms of Strathy J.’s January 20, 2012 Order; however, Sidney Bickram waited until his stay motion was dismissed before he finally complied with the Order to return the Palmiste property to his mother, putting his mother to incredible expense.

[72] Sidney Bickram has not paid the $6,720.00 in costs ordered under Strathy J.’s January 20, 2012 Order. In his August 29, 2014 affidavit, Sidney Bickram alleged that prior to the August 11, 2014 return date, which he attended, he had never heard of the costs orders. This statement is flatly contradicted by Sidney Bickram’s previous sworn evidence: on his June 8, 2012 examination in aid of execution, Sidney Bickram stated that he had read that the January 20, 2012 Order required him to pay $6,720.00 in costs; and in paragraph 4 of his affidavit sworn on April 18, 2013, in support of his motion to stay Strathy J.’s January 20, 2012 Order, Sidney Bickram falsely stated that he had complied with the costs ordered under Strathy J.’s Order.

[73] Further, Sidney Bickram has not paid the $750.00 cost award made by the Court of Appeal as a result of its dismissal of his motion to extend the time for an appeal or the $500.00 cost award ordered as a result of the last-minute adjournment of Mrs. Bickram’s contempt motion on January 29, 2013 which was caused by Sidney Bickram.

[74] Mrs. Bickram is an elderly, frail woman who needs the proceeds from the Palmiste property for her support at the nursing home where she now resides. Sidney Bickram should not have put his mother to any expense. In consequence, Mrs. Bickram is entitled to all of her costs of her contempt motion on a full indemnity scale, including the costs awards already made and any costs awards to be made, in the form of a restitution order.

[75] In accordance with the provisions of Rule 60.18 of the Rules of Civil Procedure, Mrs. Bickram is entitled to examine Sidney Bickram in aid of execution with respect to the costs orders that have been made. His last examination in aid of execution was over a year ago.

iv. Motion to strike Sidney Bickram’s Statement of Claim in action bearing court file no. CV-12-470047

[76] As it is unclear from Sidney Bickram’s Notice of Discontinuance whether he intends to discontinue the action bearing court file no. CV-12-470047 that he commenced against five of his siblings, I turn to consider his siblings’ motion to strike his statement of claim in this action.

[77] In his action, Sidney Bickram is claiming against his named siblings one million dollars in damages for conspiracy to defraud, fraud, and abuse of the judicial process.

[78] I agree that the statement of claim should be struck out without leave to amend and that Sidney Bickram’s action should be dismissed, for the following reasons:

i. Paragraphs 4 to 12, 14, 16, 17, 18 and 19 of the statement of claim complain that his named siblings committed alleged fraudulent acts against his mother or his late father. Sidney Bickram does not have any standing to bring an action on behalf of his mother or the estate of his late father and has not pleaded any basis for allowing him to advance this cause of action in his own name.

ii. Paragraph 15 of the statement of claim alleges that Sidney Bickram was charged with assault by his brother Latchman Bickram for the purpose of intimidating him to sell his interest in Hermitage House. No other particulars are given. Rather, it appears to be part of Sidney Bickram’s general complaint against his siblings with respect to his parents’ property. As a result, there is no proper pleading of any discernible cause of action.

iii. Paragraphs 13, 19, 20, 21, 22, 23, and 24 of the statement of claim allege that his named siblings carried out fraudulent acts concerning the Palmiste property and that Mrs. Bickram’s application under court file no. CV-11-438568 is an abuse of process. These allegations constitute a collateral attack on the January 20, 2012 Order of Strathy J. and are therefore an abuse of process.

iv. While few dates are pleaded in Sidney Bickram’s statement of claim, any causes of action to which they may relate (although no causes of action are properly pleaded or particularized) are long expired.

[79] The nature of the defects that I have noted in Sidney Bickram’s statement of claim cannot be cured by way of amendment because he has no standing to put forward the allegations, his allegations are an abuse of process, and any causes of action against his siblings, which he has not articulated, are statute-barred.

[80] As a result, I allow the named siblings’ motion to strike out Sidney Bickram’s statement of claim without leave to amend and I dismiss his action.

v. Application to appoint guardians of property for Boodnee Bickram:

[81] In their application, Latchman Bickram and Shirley Ong seek a declaration that their mother, Boodnee Bickram, is incapable of managing her own property and ask that they be appointed as her guardians for property.

[82] In support of their application, they have filed the affidavit of Elizabeth Milojevic, sworn August 25, 2014, who carried out capacity assessments of Mrs. Bickram on January 29 and March 17, 2011, July 16, 2013 and on July 21, 2014. Ms. Milojevic formed and maintained the opinion since her initial January 29 and March 17, 2011 assessments that Mrs. Bickram was incapable of managing her own finances.

[83] Sidney Bickram agrees that his mother is incapable of managing her own finances but submits that the Public Guardian and Trustee should be appointed as her guardian of property. He also argues that his mother is incapable of instructing her lawyers, in particular, that she was incapable of instructing them to commence the application to obtain the return of the Palmiste property.

[84] I do not accept Sidney Bickram’s submissions for the following reasons.

[85] First, the Public Guardian and Trustee has not consented to be appointed as Mrs. Bickram’s guardian of property. Moreover, there are family members who appear capable of acting as Mrs. Bickram’s guardian of property, if such an order is made.

[86] For example, Mrs. Bickram’s daughters Shirley Ong and Kuntie Rabi are their mother’s attorneys for personal care. There has never been an issue raised by any of the parties to these proceedings that Mrs. Bickram’s daughters have not taken good care of her under their power of attorney for personal care.

[87] Further, Sidney Bickram has not objected to other family members acting as his mother’s guardian of property. He agreed that he has no objection to Ramsaroop Bickram, Pollen Deonarine, Marjorie Ramphal or “Baby” Chan, individually or collectively, acting as his mother’s guardian(s) of property.

[88] As a result, there is no basis for my appointing the Public Guardian and Trustee as Mrs. Bickram’s guardian of property.

[89] Further, Ms. Milojevic conducted assessments of Mrs. Bickram on July 16, 2013 and July 21, 2014, to determine if she was capable of instructing counsel and concluded that as at July 16, 2013 and July 21, 2014, Mrs. Bickram was capable of instructing counsel.

[90] Mrs. Bickram is almost 94 years old. She resides in a nursing home. The evidence on this application appears to demonstrate and the parties agree that Mrs. Bickram is incapable of managing her own property. However, for the following reasons, I am not in a position at this juncture to make the declaration of her incapacity or the requested appointment.

[91] First, not all of the Bickram siblings (such as Marjorie Ramsall) have been served with notice of this application, as is required under s. 69(6) of the Substitute Decisions Act, 1992[^14].

[92] While my dismissal of Sidney Bickram’s action and his discontinuance of proceedings remove the potential conflict of interest issue caused by any of the named siblings acting as their mother’s guardian of property, the question still remains as to whether all of the siblings consent or object to Latchman Bickram and Shirley Ong acting as their mother’s guardians of property or whether any of them wish or are better qualified to act in that capacity and, if so, whether one or more of them should be appointed in addition to or in place of Latchman Bickram and Shirley Ong.

[93] Further, I question whether a less restrictive order could be made. I am mindful of the prohibition under s. 22(3) of the Substitute Decisions Act, 1992 that the court shall not appoint a guardian of property if it is satisfied that the need for decisions to be made will be met by an alternative course of action that does not require the court to find Mrs. Bickram incapable of managing her property and is less restrictive of her decision-making rights than the appointment of a guardian.

[94] In the present case, according to Ms. Milojevic’s assessment opinions, Mrs. Bickram is capable of instructing counsel for the purposes of this litigation. As such, this may mean that Mrs. Bickram is also capable of designating an attorney or attorneys for property, which would be a much less restrictive measure than the appointment of a guardian or guardians of property for her.

[95] As a result, this application is adjourned to a scheduling appointment to be set once service on all of the siblings by regular mail has been made in accordance with s. 69 of the Substitute Decisions Act. In order to facilitate the hearing of this application, I am not seized of it and it may be returned before any judge sitting on the Estates List.

Conclusion:

[96] For the above reasons, I make the following Order:

i. I declare that Sidney Bickram is in contempt of the January 20, 2012 Order of Strathy J.

ii. Sidney Bickram’s motion to stay the January 20, 2012 Order of Strathy J. is dismissed.

iii. Sidney Bickram’s statement of claim in action bearing Court File No. CV-12-470047 is struck out without leave to amend and his action is dismissed.

iv. Latchman Bickram and Shirley Ong’s application is adjourned to a scheduling appointment to be set once the application has been served on the remaining siblings who have not yet been served.

v. Mrs. Bickram is entitled to her costs of her contempt motion on a full indemnity basis.

vi. Mrs. Bickram is entitled to examine Sidney Bickram in aid of execution.

Costs:

[97] The parties’ brief written costs submissions of no more than two pages plus costs outline may be sent to me through Judges’ Reception, Room 170, 361 University Avenue as follows: Boodnee Bickram, Latchman Bickram, Ramsaran Bickram, Shirley Ong, Kuntie Rabi and Rajpaul Bickram shall deliver their costs submissions by February 19, 2015; Sidney Bickram shall deliver his responding costs submissions by March 5, 2015.

L.B. Roberts J.

Released: February 5, 2015

[^1]: Transcript, October 2, 2012, p. 17, ll. 22-26.

[^2]: Transcript, June 8, 2012, p. 3, q. 6.

[^3]: Transcript, October 2, 2012, p. 15, ll. 9-17.

[^4]: Transcript, June 8, 2012, p. 13, qq. 81 to 82.

[^5]: Transcript, June 8, 2012, p. 14, qq. 87 to 90.

[^6]: Transcript, October 2, 2012, p. 34.

[^7]: State Farm Insurance Company v. Brijlal, 2011 ONSC 652 (S.C.J.), at para. 15, applying Prescott-Russell Services for Children and Adults v. G. (N.) (2007), 2006 81792 (ON CA), 82 O.R. 3d) 686 (C.A.), at para. 27 and Mercedes-Benz Financial (DCFS Canada Corp.) v. Kovacevic 2009 (Ont. S.C.J.).

[^8]: Transcript, October 2, 2012, p. 31.

[^9]: Transcript, October 2, 2012, pp. 46 and 56.

[^10]: Transcript, October 2, 2012, p. 27.

[^11]: Ibid., p. 23.

[^12]: Ibid., p. 25.

[^13]: The contents of Mr. Hosein’s February 19, 2013 letter constitute hearsay and cannot be relied on for their truth nor can any legal opinion expressed in his letter be relied upon as proof of Trinidadian law because there has been no compliance with Rule 53 of the Rules of Civil Procedure. The fact that Mr. Hosein’s letter was sent and received has been attested to by Sidney Bickram in his February 24, 2013 affidavit. The contents of Mr. Hosein’s letter can be relied upon as part of the narrative in relation to Mrs. Bickram’s contempt motion and to explain Sidney Bickram’s state of mind and actions in relation to that motion. As Sidney Bickram attached Mr. Hosein’s letter to his February 24, 2013 affidavit, the letter can also be used for the purpose of assessing the credibility and reliability of Sidney Bickram’s evidence, as discussed in paragraphs 58 to 62 of these Reasons.

[^14]: S.O. 1992, Ch. 30.