Wadhwani v. Wadhwani, 2017 ONSC 553

Wadhwani v. Wadhwani, 2017 ONSC 553

CITATION: Wadhwani v. Wadhwani, 2017 ONSC 553 COURT FILE NO.: CV-16-3020-00 DATE: 2017-01-23

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

SURUJPATTIE WADHWANI & SATWATTIE DUTT Applicants

• and -

KAMENEE KAUSHAL WADHWANI Respondent

HEARD: January 20, 2017, at Brampton, Ontario

COUNSEL: Ahmad N. Baksh, for the Applicants Self-represented, Respondent

BEFORE: Price J.

Reasons For Order

NATURE OF MOTION

1Two sisters want to sell a property they own in joint tenancy, in order to pay the costs of their mother, who was recently moved from the property to a Long-Term Care Facility, owing to a physical disability. The house is currently occupied by the applicants’ younger sister, who was injured in a car accident, and is also disabled, and who says she has no other place to live.

2The younger sister says that her older sisters hold title to the property in trust for their mother, to whom she provided care for 14 years until the mother was moved to the Long-Term Care Facility. At that point, the younger sister assumed the expenses of the property. She says that the understanding between her older sisters and their mother was that the property would be held in trust for their mother. She claims a right to continue occupying the home as a licensee of their mother, and as constructive trustee of an interest in the home.

3The older sisters apply for a declaration that they are the sole owners of the property, and for an order requiring their younger sister to leave. The court made an order to enable the younger sister, who is self-represented, to obtain disclosure of relevant documents and deliver a responding affidavit. She has failed to deliver the affidavit, and the older sisters now seek leave to bring a motion for summary judgment against her.

BACKGROUND FACTS

Relationships of the parties

4The Applicants, Surujpattie Wadhwani, also known as Sarah Wadhwani, (“S. Wadhwani”), and Satwattie Dutt, (“S. Dutt”), are sisters of each other and of Michael DeCastro (“Mr. DeCastro”). Their mother is Bhadmonia Ramlochan (Ms. Ramlochan”).

5The Respondent, Kameenee Wadhwani, described in the Application as Kamenee Wadhwani, (“K. Wadhwani”), is the youngest daughter of Ms. Ramlochan. K. Wadhwani was adopted by her sister, S. Wadhwani, for immigration purposes when she immigrated to Canada from Guyana.

The property at Royal Orchard Drive

6On July 24, 1998, S. Wadhwani and Mr. DeCastro became the owners in joint tenancy of a property at 126 Royal Orchard Drive, Brampton (“the Property”). The former owner was Marcello Lamura. The purchase price was $196,000, of which $10,000 was paid as a deposit and the balance of $186,000 was paid on closing, on July 24, 1998.

7At the hearing on January 20, 2017, S. Dutt acknowledged that the Property was purchased with the proceeds of sale of a property in Guyana which had once belonged to both her parents but devolved to her mother after the father died in 1986. Therefore, it appears not to be in dispute that the Property was purchased entirely from funds provided by Ms. Ramlochan.

8On September 23, 2002, S. Wadhwani and Mr. DeCastro transferred the Property to S. Wadhwani and her sister, S. Dutt, in joint tenancy, for no consideration.

9For many years following its purchase in 1998, Ms. Ramlochan resided in the property with K. Wadhwani. On February 9, 2015, Ms. Ramlochan was moved to Maple Grove Care Community, a Long-Term Care Facility (“Maple Grove”) in Brampton. Maple Grove charges Ms. Ramlochan $2,509.38 per month for her care.

History of the judicial proceeding

10On July 4, 2016, S. Wadhwani and S. Dutt began the present proceeding by Notice of Application in which they claim a declaration that K. Wadhwani is a trespasser on the Property, and an order requiring her to deliver up possession of the Property, and an injunction prohibiting her from trespassing further.

11The Applicants state the following as the grounds for their Application:

1. They are siblings and K. Wadhwani is S. Wadhwani’s adopted daughter.
2. The Applicants became owners of the Property on February 6, 1996.
3. The Applicants’ mother, Ms. Ramlochan, was diagnosed with spinal stenosis in 2014. Ever since her diagnosis, she has been bedridden and has had in-home professional support.
4. There was a verbal agreement between the Applicants and K. Wadhwani for K. Wadhwani to provide the required assistance to her grandmother in the absence of professional staff.
5. K. Wadhwani and Ms. Ramlochan were the only residents at the Property. However, K. Wadhwani failed to provide any care for Ms. Ramlochan. As a result, the Applicants moved their mother to Maple Grove in February 2015, in order for her to receive the 24-hour attention her condition required.
6. The Applicants provide all financial support for their mother to remain at Maple Grove, and additionally pay all the expenses of the Property. K. Wadhwani has provided no assistance in the payment of the expenses.
7. It is financially necessary for the Applicants to sell the house in order to continue to pay their mother’s health expenses. They have caused DT Legal Services to send K. Wadhwani four letters but she refuses to leave the Property.

12The Application was served on K. Wadhwani on July 18, 2016. On August 18, 2016, K. Wadhwani attended at court on the return of the Application. She requested an adjournment to October 6, 2012, to enable her to consult counsel further and prepare responding material. She stated that she had been unable to afford a lawyer and had, as yet, been unable to secure a Legal Aid Certificate.

13K. Wadhwani asserted that the Applicants hold title to the property as trustee for their mother, Ms. Ramlochan. Ms. Ramlochan purchased the Property in 1997, she said, and in the mistaken belief that holding title in her own name would jeopardize her entitlement to Canada Pension, she directed that her son, Mr. DeCastro, take title. Mr. DeCastro later transferred the title to the Applicants with the intention that they would hold title, in his place, as trustee for their mother.

14K. Wadhwani stated that she and her mother resided at the Property for the past 14 years, and that she (K. Wadhwani) had been paying the utilities since November 2015. She further stated that following mother’s move to Maple Grove in February 2015, S. Dutt exercised a Power of Attorney for Ms. Ramlochan. K. Wadhwani was unsure whether it was a Power of Attorney for Personal Care, or for Property, or both. However, she stated that her mother, who is mentally competent, and in daily contact with K. Wadhwani, wishes to allow her to continue residing at the Property.

15The court inferred from K. Wadhwani’s submissions that she claimed a right to remain at the Property as her mother’s licensee, and additionally may additionally claim a constructive trust interest in the Property.

16The Court made the following endorsement on August 18, 2016:

• K. Wadhwani will need to ascertain from her mother whether she wishes to revoke the Power of Attorney or, at the least, provide an affidavit substantiating K. Wadhwani’s assertions as to her beneficial ownership of the Property and as to the basis upon which K. Wadhwani is residing there.
• S. Wadhwani asserts that their mother has insufficient pension or other income to pay her fees at the Long Term Care Facility. In that event, it may be necessary for the property to be sold and an amount set aside from the proceeds to provide for the mother’s care and her needs.

17The court adjourned the application to October 6, 2016, subject to a determination, in the interval, as to whether argument would require an hour or more, in which case the parties would obtain an appointment from the Trial Office for a long motion date.

18The court requested Legal Aid Ontario to reconsider K. Wadhwani’s application for a Legal Aid Certificate, or refer her to alternative resources that could assist her. The court further granted leave to K. Wadhwani to move, on notice to any non-parties who held relevant records, such as the lawyer’s file for the purchase of the property and preparation of Powers of Attorney, the records of the long-term care facility, and the records of the acquisition and maintenance of the Property, to produce such records. The court urged the parties to avail themselves of the mediation service at the court house.

Developments since August 18, 2016

19On September 19, 2016, K. Wadhwani consulted a lawyer, Pritina Bhavsar, of the law firm of Fader Furlan Moss LLP, who assisted her for the limited purpose of obtaining records referred to in the court’s endorsement. On September 20, 2016, Ms. Bhavsar sent a letter to Mr. Galbraith, the lawyer who had acted on the purchase of the property from Mr. Lamura, and requested the records of the acquisition and transfers of the Property, and copies of the Powers of Attorney and Wills of Ms. Ramlochan. On the same date, Ms. Bhavsar sent a letter to Scotiabank, requesting copies of the bank statements of S. Dutt and Ms. Ramlochan.

20On September 29, 2016, K. Wadhwani, still self-represented, wrote to the Applicants’ lawyer, Ahmad Baksh, on September 29, 2016, a letter entitled “My respond”, which was tendered to the court. The contents of the letter can be summarized as follows:

1. K. Wadhwani was injured in a car accident in September 1997. As a result of her injury, she suffers from advanced osteoarthritis in both knees and degenerative changes in her lumbar discs that have disabled her from her employment as an aesthetician.
2. K. Wadhwani stopped work in 2006 to attend physiotherapy, paid for by “the insurance company”. Her settlement in the ensuing litigation was embezzled by her lawyer, who was charged with fraud and in 2014, was disbarred by the Law Society of Upper Canada for professional misconduct.
3. K. Wadhwani made no oral or written agreement with the Applicants. She resided with her mother, Ms. Ramlochan, for 14 years before Ms. Ramlochan became ill. She helped to the extent that her physical pain and disabilities allowed. She has paid all the maintenance and up-keep of the Property for 14 years, all the utilities since November 2015, and all the property tax and insurance since July 2016.
4. The Property belongs to Ms. Ramlochan, who provided the funds for its purchase.

21On September 30, 2016, from Marylann Agapito, the Office Manager of Maple Grove provided a letter to K. Wadhwani in which she confirmed that Ms. Ramlochan has been a resident of that Long-Term Care Facility since February 2015, and suffers from dementia.

22K. Wadhwani has not delivered a responding affidavit, as she says she has been unable to afford to hire a lawyer to prepare one. S. Wadhwani and S. Dutt now seek leave, in a motion dated January 10, 2017, to bring a motion for summary judgment against her.

23At the hearing on January 20, 2017, K. Wadhwani requested an adjournment for the purpose of obtaining further disclosure and delivering responding material. Her request was opposed by the Applicants, who argued that the Respondent should have delivered her Response before receiving the remaining disclosure.

24S. Dutt produced at the hearing an “Enduring Power of Attorney”, signed by Ms. Bhagmania Ramlochan, dated November 22, 2013, and witnessed by Gurpreet S. Badwal, Barrister & Solicitor, who Ms. Dutt says prepared the document. Ms. Dutt stated that she has managed her mother’s property since February 2015, when Ms. Ramlochan moved to Maple Grove. She produced the bank pass books for the Scotiabank account # 66662 94029 26, that her mother operated until February 2015, and that Ms. Dutt operated with her as a joint account since that time. She also produced a spread sheet, which she and her husband had prepared, setting out Ms. Ramlochan’s income and expenses since Ms. Dutt began managing her affairs.

ISSUES

25The motion requires the court to determine whether, where the evidence of the applicants discloses a genuine issues requiring trial, and the respondent, who is self-represented, has, failed to deliver an affidavit, the court should grant leave to the applicants to move for summary judgment.

PARTIES’ POSITIONS

26S. Wadhwani and S. Dutt submit that in light of K. Wadhwani’s failure to deliver a responding affidavit, they should be entitled to move for summary judgment on their Application.

27K. Wadhwani seeks a hearing of the Application where she will have an opportunity to be heard without having to submit affidavits, which she cannot afford to do.

28S. Dutt asserts that her mother suffers from dementia and is under the care of Dr. Abraham. K. Wadhwani disputes that her mother suffers from dementia and seeks production of Dr. Abraham’s clinical notes and records. S. Dutt, with the authority of her mother’s Power of Attorney, consented to the release of these records to K. Wadhwani.

ANALYSIS AND EVIDENCE

a) Respondent’s request for an adjournment of the motion

Jurisprudence

29The court exercises discretion as to whether to allow or deny an adjournment request. In Toronto-Dominion Bank v. Hylton, Epstein J.A., for the Court of Appeal, commented on how this discretion should be exercised:

Against the backdrop of the nature of the proceeding and the parties to the proceeding, the court should consider the evidence and strength of the evidence of the reason for the adjournment request, the history of the matter, including deliberate delay or misuse of the court process, the prejudice to the party resisting the adjournment and the consequences to the requesting party of refusing the request.¹ [Emphasis added.]

30The Court of Appeal identified additional factors to be considered in relation to adjournment requests in Law Society of Upper Canada v. Igbinosun.² Weiler J.A., speaking for the Court, stated:

A non-exhaustive list of procedural and substantive considerations in deciding whether to grant or refuse an adjournment can be derived from these cases. Factors which may support the denial of an adjournment may include a lack of compliance with prior court orders, previous adjournments that have been granted to the applicant, previous peremptory hearing dates, the desirability of having the matter decided and a finding that the applicant is seeking to manipulate the system by orchestrating delay. Factors which may favour the granting of an adjournment include the fact that the consequences of the hearing are serious, that the applicant would be prejudiced if the request were not granted, and the finding that the applicant was honestly seeking to exercise his right to counsel and had been represented in the proceeding up until the time of the adjournment request. In weighing these factors, the timeliness of the request, the applicant’s reasons for being unable to proceed on the scheduled date, and the length of the requested adjournment should also be considered.³ [Emphasis added]

31In Turbo Logistics Canada Inc. v. HSBC Bank Canada, 2016 ONCA 222, Strathy C.J.O. stated, for the court:

[18] The applicable principles are well understood. They were expressed by this court in Khimji v. Dhanani (2004), 2004 12037 (ON CA), 69 O.R. (3d) 790, per Laskin J.A. dissenting, but not on this point, at para. 14:

A trial judge enjoys wide latitude in deciding whether to grant or refuse the adjournment of a scheduled civil trial. The decision is discretionary and the scope for appellate intervention is correspondingly limited. In exercising this discretion, however, the trial judge should balance the interests of the plaintiff, the interests of the defendant and the interests of the administration of justice in the orderly processing of civil trials on their merits. In any particular case several considerations may bear on these interests. A trial judge who fails to take account of relevant considerations may exercise his or her discretion unreasonably and if, as a result, the decision is contrary to the interests of justice, an appellate court is justified in intervening. In my opinion, that is the case here.

[19] Laskin J.A. observed that in refusing an adjournment, the trial judge should have taken into account the goal expressed in r. 2.01(1)(a), namely “to secure the just determination of the real matters in dispute” and the resolution of cases on their merits.

[20] Khimji was considered by this court in Toronto-Dominion Bank v. Hylton, 2010 ONCA 752, which adopted the above statement. This court observed, at para. 36, that “[t]he presiding judge has a well-placed and a well-established discretion to decide whether an adjournment request ought to be allowed or denied.” After setting out the above statement, the court added, at para. 37:

Laskin J.A.'s passage makes it clear that, in reviewing highly discretionary decisions such as whether to allow a request for an adjournment, the inquiry must focus on whether the court below took account of relevant considerations in balancing the competing interests and made a decision that was in keeping with the interests of justice.

[21] The court added that factors to be considered include the reason for the adjournment request, the history of the matter, the prejudice to the party resisting the adjournment and the consequences to the requesting party of refusing the request. The fact that a party is self-represented is a relevant factor as the court has an obligation to ensure that all litigants have a fair opportunity to advance their positions.

[22] In Ariston Realty Corp. v. Elcarim Inc., 2007 13360 (ON SC), [2007] O.J. No. 1497 (S.C.), a case much relied on by the appellants, Perell J. helpfully set out at para. 34 a non-exclusive list of factors that may be weighed in the exercise of a court’s discretion with respect to an adjournment.

[23] That list includes not simply factors of immediate concern to the parties, but factors affecting the broader public interest, including the objective of determining the matter on its merits, the appearance of justice and the needs of the administration of justice in the orderly processing of trials.

[24] The list in Ariston also suggests that the court should consider whether the refusal of an adjournment would significantly compromise the ability of the party prosecuting or defending the litigation and the effect of the adjournment on substantive and procedural justice.

[25] The list also makes it clear that the court must consider “the competing interests of the parties in advancing or delaying the progress of the litigation”.

[26] Finally, Perell J. noted, the judge is entitled to consider “the particular circumstances of the request for an adjournment and the reasons and justification for the request”.

Applying the legal principles to the facts of the present case

32K. Wadhwani’s request for an adjournment is not for the purpose of retaining counsel but rather, to enable her to obtain the remaining disclosure she requires for the purpose of responding to the Application, and securing the evidence she requires, including an affidavit or the testimony of her mother, Ms. Ramlochan, to support her position. During the hearing on January 20, 2017, a timetable was arrived at, on consent, for disclosure, the delivery of K. Wadhwani’s response to the Application, and a hearing of a trial of the issues, which will enable K. Wadhwani to achieve her stated objectives without the need to adjourn the motion.

b) Applicants’ motion for leave to move for summary judgment

The Legislative framework

33The Applicants’ Notice of Motion states that they rely on Rules 37.01 and 37.02 of the Rules of Civil Procedure. Those Rules provide simply that a motion shall be made by notice of motion and that a judge has jurisdiction to hear any motion in a proceeding.

34The Applicants seek leave to move for summary judgment. Such motions are governed by Rule 20. That Rule provides, in part:

20.01(1) A plaintiff may, after the defendant has delivered a statement of defence or served a notice of motion, move with supporting affidavit material or other evidence for summary judgment on all or part of the claim the statement of claim.

20.04 (1) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

35Where there are genuine issues requiring a trial, but a full trial would not be the most expeditious and least expensive manner of achieving a just determination of the issues on their merits, the court may direct the trial of an issue. Rule 20.05 provides, in this regard:

20.05(1) Where summary judgment is refused or is granted only in part, the court may make an order specifying what material facts are not in dispute and defining the issues to be tried, and order that the action proceed to trial expeditiously.

(2) If an action is ordered to proceed to trial under subrule (1), the court may give such directions or impose such terms as are just….

36The Rules provide a similar power in relation to motions generally. Rule 37.13 provides, in that regard:

37.13(1) On the hearing of a motion, the presiding judge or officer may grant the relief sought or dismiss or adjourn the motion, in whole or in part and with or without terms, and may,

(a) where the proceeding is an action, order that it be placed forthwith, or within a specified time, on a list of cases requiring speedy trial; or

(b) where the proceeding is an application, order that it be heard at such time and place as are just.

(2) A judge who hears a motion may,

(a) in a proper case, order that the motion be converted into a motion for judgment; or

(b) order the trial of an issue, with such directions as are just, and adjourn the motion to be disposed of by the trial judge.

(3) Where on a motion a judge directs the trial of an issue, subrules 38.10(2) and (3) (issue treated as action) apply with necessary modifications.

Jurisprudence

37Summary judgment is not available in an application unless it is first converted to an action.⁴ Where a motion is made in a proceeding commenced by application, and there are no genuine issues requiring a trial, the court may decline to convert the application to an action.⁵ Where a full trial is not the most expeditious and least expensive of achieving a just determination of the issues on their merits, the court may direct the trial of specified issues.

38Justice Ground, in Scott v. Cockburn, (2005), reviewed the relevant jurisprudence and concluded that a motions judge has jurisdiction to convert an application to an action. He stated:

[4] On the issue of my jurisdiction as a motions judge to make an order for conversion of an application to an action or directing the trial of certain issues, I adopt the reasoning of Justice Then in Keewatin v. the Minister of National Resources (2003) 2003 43991 (ON SCDC), 66 O.R. (3rd) 370at paragraphs 57 and 58:

A review of the case law reveals that there is no hard and fast rule about the interpretation of rule 38.10(1)(b). On the one hand, there are two decisions of the Superior Court holding that a motions judge cannot invoke this section. In both cases, the court held that the power to convert was reserved to the judge hearing the application and should not be dealt with by a judge hearing a preliminary motion: 288715 Canada Inc. (c.o.b. Access Telecom Technologies) v. AT&T Canada Corp., [2000] O.J. No. 5002 (QL) (S.C.J.); [page 388] Sutherland v. Birks, [2—1] O.J. No. 443 (QL) (S.C.J.). On the other hand, two Superior Court cases were submitted in which the court held that a motions court judge had the jurisdiction to convert an application into an action: Renegade Capital Corp. v. Hees International Bancorp Inc. (1990), 1990 6953 (ON SC), 73 O.R. (2D) 311 (H.C.J.); and Olivier v. Olivier, [1995] O.J. No. 58 (QL) (Gen. Div.). Furthermore, while the Court of Appeal in Energy Probe noted that rule 38.10 specifically refers to the presiding judge, it did not hold that only the presiding judge may decide such a motion. In fact, in that case the Court of Appeal itself ordered the application to proceed to trial, while recognizing that it was not the court hearing the application. That order was premised on the fact that both parties had consent to the court availing itself or the rule. I note also a recent decision by Mr. Justice Pitt in which he held that a motions judge had the jurisdiction to order a trial of the issue or make other pre-application orders: University Health Network v. Made in Japan Japanese Restaurants Ltd., [2003] O.J. No. 2026 (QL) (S.C.J.) Pitt J. distinguished Access Telecom and Sutherland on the grounds that, in those cases, the primary concern of the motions judges was the fact that they lacked sufficient information to make an informed decision about conversion.

I find that I have jurisdiction as a motions judge to make an order under rule 38.10(1)(b). I also have before me all of the materials necessary to make a determination about the appropriateness of conversion in these circumstances.

[5] The Keewatin decision is also instructive to the case at bar with respect to the application of Rule 1.04 providing that the Rules should be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. I am far from satisfied that allowing these applications to continue as applications and to leave to the applications judge the determination of which issues should be directed to trial would be more just and expeditious and less expensive than converting the applications to actions at this stage. In fact, the contrary may well be true. The motion may therefore proceed before me.⁶

Applying the legal principles to the present case

39In the present proceeding, the evidence tendered by the Applicants discloses, even in the absence of an affidavit from the Respondent, that there are genuine issues requiring a trial. In particular:

1. The Applicants acknowledge that the $196,000 used for the purchase of the Property was provided by Ms. Ramlochan. The abstract of title discloses no mortgage, and it appears the entire amount of the purchase price was derived from the proceeds of sale of Ms. Ramlochan’s property in Guyana.
2. S. Dutt asserted that she and her husband had paid $20,000 since February 2015 for the payment of Ms. Ramlochan’s expenses at Maple Grove, to make up a deficiency between Ms. Ramlochan’s income from the Canada Pension Plan (CPP) or Old Age Security (OAS), which she estimates at $1,443, and the $43 she receives from the Trillium Drug Program, and the charges of Maple Grove, which amount to approximately $2,509.63 plus prescriptions and cable. As these funds have been exhausted, S. Wadhwani has provided five cheques, each for $1,200, drawn from a Line of Credit she arranged, to continue financing the deficit.
3. K. Wadhwani disputes the deficiency in her mother’s budget, or the necessity of it. She stated that she believes that her mother, who has no assets in her name and no income other than CPP and OAS, is entitled to a Government subsidy. Additionally, she asserts her belief that in February 2015, her mother additionally owned approximately $20,000 which S. Dutt held in trust for her. She also asserts that her mother received approximately $20,000 for the repair of the house following a flood. S. Dutt, at the hearing, produced a report from the Property insurer, Paul Davis Systems of Brampton, and stated that the insurer paid the insurance monies directly to the contractor who performed the flood repairs.
4. The Applicants acknowledge that Ms. Ramlochan and K. Wadhwani were the sole occupants of the property from when it was purchased until February 2015, when Ms. Ramlochan was moved to Maple Grove, and that K. Wadhawani was there in order to assist Ms. Ramlochan. This evidence supports an inference that Ms. Ramlochan was the beneficial owner of the Property and that K. Wadhwani was residing at the Property with her permission.
5. The letter dated September 30, 2016, from Marylann Agapito, the Office Manager of Maple Grove, states in part:

Maple Grove was given authorization by Satwattie Dutt (Power of Attorney) to deduct recurring monthly payments of all charges arising under Ms. Bhadmania Ramlochan’s account by providing a void cheque to Maple Grove Care Community. It is unknown to Maple Grove who subsidizes Ms. Bhagmania Ramlochan as we do not manage her finances. Also, Maple Grove is not in possession of the document signed by Ms. Bhadmania Ramlochan consenting to accept the bed offer at Maple Grove Care Community. [Emphasis added]

6. Ms. Bhavsar, in her letter to Mr. Galbraith dated September 20, 2016, requested a copy of the Power of Attorneys for Property and for Personal Care for Ms. Ramlochan. Mr. Galbraith, in his reply dated September 21, 2016, states:

Over the past year I have had a number of calls from your client inquiring as to whether or not my office prepared a Power of Attorney for Property, a Power of Attorney for Personal Care, or a Last Will for her mother.

It has taken considerable time to search our records and on each occasion we advised your client that at no time did my office ever make any of the above documents for her mother.

7. At the hearing on January 20, 2017, Ms. Dutt produced a Power of Attorney for Property signed by Ms. Ramlochan in 2013. This supports an inference that Ms. Dutt holds the Property in trust for Ms. Ramlochan, and manages her income and expenses on her behalf.
8. There was no consideration for the conveyance of the Property from Mr. DeCastro and S. Wadhwani to S. Wadhwani and S. Dutt in 2002. This supports an inference that Mr. DeCastro was holding the title to the property in trust for Ms. Ramlochan and transferred his interest to Ms. Dutt in the expectation that she and S. Wadhwani would continue to do so.

40Based on the foregoing, I identify the following issues that need to be determined before the court can determine whether the Applicants are entitled to the relief they seek:

1. Who has a beneficial interest in the Property? It appears that S. Wadhwani and S. Dutt may hold the property in trust for Ms. Ramlochan, but her interest may be subject to a constructive trust in favour of S. Dutt and/or S. Wadhwani for funds they have expended for the maintenance of Ms. Ramlochan, or in favour of K. Wadhwani, if she provided services to Ms. Ramlochan beyond those that can reasonably be attributed to a daughter’s natural love and affection, or made payments in connection with the up-keep or maintenance of the Property.
2. Is Ms. Ramlochan mentally incapable of managing her property, and is S. Dutt authorized under the Enduring Power of Attorney to manage her property, including the Property on Royal Orchard Drive, on her behalf?
3. Is Ms. Ramlochan capable of deciding whether to grant K. Wadhwani permission to continue residing at the Property, and can a determination be made as to whether she did so, or as to whether she withdrew such permission?
4. Is a sale of the Property, and the departure of K. Wadhwani from the Property for this purpose, necessary and in Ms. Ramlochan’s best interests? This determination may require an accounting of the assets and liabilities, and income and expenses, that Ms. Dutt has managed on her mother’s behalf since February 2015.
5. Does K. Wadhwani continue to suffer a disability that prevents her from maintaining employment, and to what extent does she receive insurance benefits or compensation arising from her motor vehicle collision that would be relevant to Ms. Ramlochan’s decision as to whether to permit her to continue residing at the Property rent-free?

41I pointed out to the parties that the expense of litigating their dispute could be a costly process that may substantially erode the resources they need for the maintenance of Ms. Ramlochan and, possibly, that of K. Wadhwani. For this reason, the court reiterated its recommendation that the parties consider the alternative of mediation as a means of resolving their dispute.

42Whether the matter is best resolved by mediation or at the trial of issues, the parties require further disclosure from each other to inform their settlement discussions and to enable them to present the evidence they require to support their positions. The parties consented at the hearing to the court making orders for the production of records from non-parties who hold records on their behalf or in relation to Ms. Ramlochan.

CONCLUSION AND ORDER

43For the foregoing reasons, it is ordered that:

1. Gurpreet S. Badwal shall produce to the parties, upon their request and at their expense for reasonable photocopying costs, his file in connection with the preparation of Powers of Attorneys and/or Wills on behalf of Bhagmania Ramlochan.
2. Dr. Abraham shall produce to the parties, upon their request and at their expense for reasonable photocopying costs, his clinical notes and records in connection with the diagnosis, treatment, and care of Bhagmania Ramlochan from November 22, 2013, to the present.
3. Scotiabank shall forthwith produce to Kameenee Wadhwani, upon her request and at her expense, all records it holds in relation to Bhagmania Ramlochan from November 22, 2013, to the present, including the records of all accounts held in her name alone, or jointly held by her and others.
4. Kameenee Wadhwani shall forthwith identify to the Applicants’ lawyer, Ahmad Baksh, the sources of any social assistance and/or insurance benefits, and/or income of any kind that she has received since February 1, 2015.
5. The Government of Canada shall forthwith produce to the parties, upon their request and at their expense, the Canada Pension Plan – Disability files for Kameenee Wadhwani and Bhagmania Ramlochan.
6. The Applicants’ proceeding, commenced by Application, is hereby converted to an action. The Applicants’ Notice of Application and Affidavits shall serve as their Statement of Claim, which shall be deemed to have been amended to add a claim for costs. The Respondent’s affidavits, yet to be delivered, shall serve as her Statement of Defence.
7. The issues set out above, at paragraph 39, shall be tried in accordance with the following timetable: (i) The Respondent, Kameenee Wadhwani, shall deliver her responding affidavits by April 30, 2017. (ii) The Applicants shall deliver their reply affidavits, if any, which shall serve as their Reply and, if any, Counterclaim, by May 15, 2017. (iii) The affidavits delivered by each of the parties shall serve as the examinations in chief of their witnesses, subject to the right of the other parties to cross-examine the witnesses at trial. The party delivering an affidavit shall produce the witness at the trial for that purpose. (iv) The issues shall be tried on the week commencing June 5, 2017, for an estimated 3 days. The hearing scheduled on June 14, 2017, is vacated.

Price J.

Footnotes

1. 1Toronto-Dominion Bank v. Hylton, 2010 ONCA 752, at para. 38, per G.J. Epstein J.A. for J.I. Laskin J.A., separate concurring reasons by Sharpe J.A.
2. 2Law Society of Upper Canada v. Igbinosun, 2009 ONCA 484, 96 O.R. (3d) 138 (C.A.)
3. 3Igbinosun, at para. 37.
4. 4Maurice v. Alles, 2016 ONCA 287, at paras. 24 to 35. See also: Essex Condominium Corp. No. 5 v. Rose-ville Community Center Assn. (2007), 51 C.P.C. (6th) 89 (S.C.J.); Ravikovich v. College of Physicians & Surgeons (Ontario), 2010 CarswellOnt 6643 (S.C.)
5. 5Olivier v. Olivier, 1995 CarswellOnt 2620, [1995] O.J. No. 58
6. 6Scott v. Cockburn, 2005 23097 (ON SC), paras. 4 to 5