CITATION: Westover v. Jolicouer et al., 2017 ONSC 4544
COURT FILE NO.: CV-17-0012
DATE: 2017-07-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MILTON EDWIN WESTOVER
A. Wylie, for the Plaintiff (Responding Party)
Plaintiff (Responding Party)
- and -
JOSEPH ALLEN JOLICOUER, JOANIE MARIE JOLICOUER aka JOAN MARIE JOLICOUER and DEBRA LEE WESTOVER-MORRISEAU
R. Clinker, for the Defendant (Moving Party), DEBRA LEE WESTOVER-MORRISEAU
L. Phillips, for the Defendants, JOSEPH ALLEN JOLICOUER, JOANIE MARIE JOLICOUER aka JOAN MARIE JOLICOUER
Defendants (Moving Party)
HEARD: June 27, 2017, at Fort Frances, Ontario
Mr. Justice W.D. Newton
Decision On Motion
Overview
[1] The defendant, Debra Lee Westover-Morriseau (“Debra”), brings this motion for an order dismissing the claim brought by the plaintiff, her father, Milton Westover (“Milton”) against her.
[2] In this action, Milton sues another daughter, Joan, Joan’s husband and Debra. He claims that real estate registered in the name of Joan and her husband is held in trust for him. He seeks an accounting from Debra, his attorney for property, the return or repayment of any money or assets improperly used by her and damages for breach of trust. He alleges that the transfer of the real estate was done by Debra as his attorney without his consent.
[3] Debra claims that Milton does not wish to sue her relying upon correspondence from Mr. Morgan, a local lawyer, and her conversation with Milton after the claim was served upon her. As a result, her counsel requested that Milton’s counsel delivery a notice verifying that Milton authorized the commencement of the action under Rule 15.02. Milton’s counsel delivered a notice in which he stated that he was authorized by Milton to commence this proceeding. Debra’s counsel takes the position that what is required is something directly from Milton.
Background
[4] Milton is 92 years old and resides in Barwick, Ontario. He has five children: Debra, Joan, Betty Scheibler, Cliff Westover, and Richard Westover. Milton’s wife, Anne, passed away in 1996. All five children live in the area. In November of 2013, Betty moved in with Milton.
[5] Since Anne became ill in 1995, Debra has helped with Milton’s finances. Milton executed a power of attorney in 1995 which named Anne as Milton’s attorney and Debra as the alternate. In her affidavit, Debra says that although Milton was capable of managing his property, he did not wish to do so and wished for Debra to handle his property for him. Debra says she consulted with Milton about the management of the property and always obtained his consent for transactions.
[6] In 1997, the two properties at issue (Milton’s farm and residence) were transferred to Joan and Allen with Debra signing as attorney for Milton. Debra says in her affidavit that Milton directed these transfers. The statement of claim states that Milton was not aware of the transfers until 2015 when he had a disagreement with Allen.
[7] In 2015, Milton advised that he was not aware the property transfers and that it was not his intention to transfer all the property to Joan and her husband in 1997.
[8] In September 2015, Milton executed a new power of attorney naming Debra and Betty as joint attorneys. Notably, Milton signed this document with an “X”.
[9] Betty and Debra took their father to see a lawyer, Mr. Morgan, to get legal advice. Mr. Morgan reported to Nelson, Betty and Debra by letter dated April 19, 2017. At page 2 of this very comprehensive report Mr. Morgan states:
I asked you if you had any complaint against Debra regarding the above described transfers. You indicated that you have no complaint against Debra and you did not wish to make a complaint against Debra. You indicated that you are satisfied that Debra understood that she was acting in your best interest and in accordance with your instructions but it was a misunderstanding.
[10] On April 24, 2017 Betty sent a notice to Mr. Morgan indicating that “Betty Sheibler has retained other counsel as representation.” That is also purportedly signed by Milton, again with an “X”.
[11] I note that the Reply delivered June 21, 2017 asserts that Milton is illiterate.
[12] On May 3, 2017, Debra was served with this claim issued April 24, 2017. Debra deposed that she was surprised by the claim and visited her father shortly after receiving the claim. Debra deposed that Milton told her that he had seen a lawyer but did not want to sue her and did not understand any of it.
[13] Nancy Jolicouer, Joan’s daughter and therefore Milton’s granddaughter deposed that she had a conversation with Milton on May 9, 2017 and that Milton wanted title to the land upon which Milton’s house is located and nothing else.
[14] Debra then requested by correspondence that Milton’s lawyer, Mr. Jiwa, clarify that Milton wanted to bring the claim against Debra. That correspondence resulted in Mr. Jiwa being asked to establish that he was authorized to commence the claim against Debra by Milton pursuant to Rule 15.02(1) of the Rules of Civil Procedure.
[15] As a result of Debra taking the position that Milton’s lawyer was not authorized to issue the claim, Mr. Jiwa provided an affidavit, sworn June 19, 2017. Mr. Jiwa’s office is located in Scarborough, Ontario.
[16] Mr. Jiwa’s affidavit sets out that he had conversations with Milton’s daughter Betty on or around March 2017 concerning issues relating to the two properties. Mr. Jiwa stated that on or about April 15, 2017, he travelled to Fort Frances and met with Milton at his residence. He stated that Milton confirmed the facts as related by Betty and gave Mr. Jiwa further facts about the matters concerning him. Mr. Jiwa stated that Milton gave him verbal instructions to issue the claim to have his properties returned. Mr. Jiwa drafted a claim at Milton’s residence which he finalized at his office.
[17] Mr. Jiwa then received correspondence from Debra and ultimately a request from Debra’s lawyer, Ms. Clinker, for a Notice under Rule 15.02(1) confirming that Milton had authorized Mr. Jiwa to commence the claim. On June 5, 2017, Mr. Jiwa served a signed Notice of Authority to Commence Proceedings to Ms. Clinker. Debra takes the position that Mr. Jiwa has not provided sufficient proof that he was authorized to commence the claim.
The Issue
[18] Is Debra entitled to an order dismissing Milton’s claim on the grounds that it was commenced without authority?
The Law
[19] Subrule 15.02(1) provides for the making of a request that a solicitor deliver a notice declaring that he or she was authorized to commence a proceeding:
Request for Notice by Lawyer
15.02 (1) A person who is served with an originating process may deliver a request that the lawyer who is named in the originating process as the lawyer for the plaintiff or applicant deliver a notice declaring whether he or she commenced or authorized the commencement of the proceeding or whether his or her client authorized the commencement of the proceeding.
[20] Subrule 15.02(1) incorporates the principle developed in the case law that a lawyer can be required to disclose whether his or her client authorized the commencement of the proceeding. (See Caribbean Cultural Committee v. Toronto (City), [2002] O.J. No 2022 at para. 8)
[21] Subrule 15.02(2) outlines the powers of the court where there is a failure to provide a notice requested pursuant to 15.02(1):
Power of Court
(2) If the lawyer fails to deliver a notice in accordance with the request, the court may,
(a) order the lawyer to do so;
(b) stay the proceeding; and
(c) order the lawyer to pay the costs of the proceeding.
[22] The confidentiality of solicitor-client communications is also a concern: “[T]he right to communicate with one’s legal adviser is a fundamental civil and legal right, founded upon the unique relationship of solicitor and client…” (see Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821 at 839).
[23] In Descôteaux et al. v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860 at 875, the Supreme Court stated the following as regards the right to solicitor-client confidentiality:
The confidentiality of communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client’s consent.
Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person's right to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting the confidentiality.
When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.
Acts providing otherwise in situations under paragraph 2 and enabling legislation referred to in paragraph 3 must be interpreted restrictively.
[24] In Windsor et al. v. Mako, heard July 26, 2007, J.W. Quinn J. stated the following at para. 38 about the interplay of Rule 15.02 and solicitor-client confidentiality: “…[I]n my view, the subject-matter of subrule 15.02(1) is not of a nature that places it within the realm of solicitor-client privilege, it is close and so, out of caution, paragraph 3 above [related to solicitor-client privilege] has influenced my interpretation of subrules 15.02(1), (2) and (4).”
[25] Windsor et al. was a case not so dissimilar to this case involving a property issue with family including a 90 year old mother. On that motion, the issue was whether questions regarding whether the mother authorized certain counter-claims were permissible on discovery. A notice had not been served under Rule 15.02. At paragraph 48, Quinn J. made the following observation:
Mr. Mahoney submits that questions directed to whether Erna would prefer not to sue Ruth do not imply that she has not authorized commencement of the counterclaim and are irrelevant. I agree. Whether one wants to sue another is quite distinct from whether one is reluctantly (or otherwise) obliged to do so. [Emphasis in the original.]
Analysis and Disposition
[26] Rule 15.02 does not set out what is required is proof that the client authorized the commencement of the proceeding.
[27] As a practical matter, given that Milton has signed the documents recently with a “X”, purports to be illiterate and communicates through his daughter, Betty, any affidavit purportedly signed by Milton may not offer any better proof than the solicitor’s affidavit and declaration. In these circumstances, the affidavit filed by solicitor is sufficient to answer the requirement of Rule 15.02. This motion is, therefore, dismissed.
[28] To avoid issue at the discovery stage, I direct that Milton may be asked whether he directed his counsel to sue Debra and for what relief but I recognize that any answer must be interpreted in light of this observation of Quinn J.:
Whether one wants to sue another is quite different from whether one is reluctantly (or otherwise) obliged to do so.
[29] If Milton claims that he was not aware of or did not authorize the transfer in the action against Debra it may be that he is “obliged” to do.
[30] In the circumstances, the costs of this motion shall be in the discretion of the disposing judge. That judge will be in a far better position than I am in to determine who equity favours.
“Original signed by”____
The Hon. Mr. Justice W.D. Newton
Released: July 27, 2017
CITATION: Westover v. Jolicouer et al., 2017 ONSC 4544
COURT FILE NO.: CV-17-0012
DATE: 2017-07-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MILTON EDWIN WESTOVER
Plaintiff (Responding Party)
- and -
JOSEPH ALLEN JOLICOUER, JOANIE MARIE JOLICOUER aka JOAN MARIE JOLICOUER and DEBRA LEE WESTOVER-MORRISEAU
Defendants (Moving Party)
DECISION ON MOTION
Newton J.
Released: July 27, 2017
/sab