COURT FILE NO.: CV-16-3020
DATE: 20180529
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SURUJPATTIE WADHWANI and BHAGMANIA RAMLOCHAN, a party under a disability by her attorney for property and litigation guardian, SATWATTIE DUTT
Applicants
AND:
KAMANEE KAUSHAL WADHWANI
Respondent
BEFORE: Ricchetti, J.
COUNSEL: L. Cardiff, for Satwattie Dutt
Surujpattie Wadhwani, self-represented
Kamanee Kaushal Wadhani, self-represented
HEARD: May 18, 2018
ENDORSEMENT
[1] At the conclusion of the motion, I advised the parties that the motion for summary judgment was granted with reasons to follow. These are those reasons.
Background
[2] Unfortunately, the parties are three sisters, Surujpattie Wadhwani ("Surujpattie"), Satwattie Dutt ("Dutt") and Kamanee Kaushal Wadhwani ("Kamanee").
[3] The dispute involves their mother's, Bhagmania Ramlochan ("Mother"), sale of her home on 126 Royal Orchard Drive, Brampton ("Home"). The Mother is the beneficial owner of the Home.
[4] In approximately 2015 the Mother's health started to fail. The Mother suffered from dementia. The Mother was moved from her Home into a long term care facility. The cost of the Mother’s long term care exceeded the Mother’s limited income. Aside from a limited pension income, the only other asset the Mother has to pay for the long term care facility expenses is the Home.
[5] Dutt is the attorney for property for the Mother, under a written power of attorney.
[6] Kamanee lived with the Mother in the Home when the Mother was moved to the long term care facility. Kamanee continues to live in the Home.
[7] The Applicants asked Kamanee to move out of the Home so that the proceeds of sale could be used to financially support the Mother's care needs.
[8] Kamanee refused to move out of the Home. Kamanee continues to live in the Home. Kamanee does not pay all associated expenses of the Home and does not pay any rent. Kamanee pays the utilities at the Home. While this matter remained before the courts, Kamanee has resided in the Home, paying utilities and some expenses. However, she has not paid the property insurance. There is also an issue whether she has been properly maintaining the Home.
[9] Kamanee admits she does not have the financial resources to pay all of the Home's ongoing expenses or to pay any rent.
[10] Surujpattie and Dutt attempted to have the Landlord and Tenant Board deal with Kamanee's refusal to vacate the Home. The Board determined it had no jurisdiction in these circumstances.
[11] As a result, Surujpattie and Dutt commenced this application in 2016. They were the registered title holders of the Home despite the fact the Mother is the sole beneficial owner of the Home.
[12] This matter first came before the court in January 2017. Kamanee appeared without having filed materials. Kamanee was self-represented. The presiding justice converted this application into a trial of an issue. The trial was scheduled for May 2017.
[13] Kamanee was not prepared to proceed with the trial in May 2017. As a result, this proceeding was case managed by RSJ Daley.
[14] While this matter has remained before the courts, Surujpattie and Dutt have funded the Mother’s financial shortfall (approximately $980 per month) for their Mother's long term care facility. Surujpattie and Dutt have limited resources and cannot continue to do so indefinitely.
[15] During the case management, Kamanee disputed the Mother's incapacity and suggested that Surujpattie and Dutt had not availed themselves of additional social funding to cover the monthly shortfall.
[16] The matter came before RSJ Daley on January 2, 2018. Kamanee had still not yet filed a Responding Record. RSJ Daley strongly advised Kamanee to retain counsel for this proceeding. A capacity assessment of the Mother was ordered.
[17] The matter returned before RSJ Daley on March 8, 2018. Kamanee was represented by counsel at this attendance. The court made the following order:
a) The proceedings were amended to reflect the current title of proceedings;
b) The Mother was found to be incapable of managing her property. Kamanee requested a second capacity assessment. The court dismissed Kamanee's request for a second capacity assessment;
c) The court determined there was no evidence that Surujpattie and Dutt had failed to apply for any additional financial aid or funding available to the Mother;
d) Kamanee sought to remove Dutt as the attorney for the Mother. The court determined there was no conflict of interest preventing Dutt from proceeding with this matter; and
e) Kamanee was to pay Dutt's costs of $6,192.40.
[18] Kamanee continues to reside in the Home and does not to pay all expenses associated with the Home or to pay any rent.
[19] Dutt brings this Summary Judgment motion seeking to have Kamanee vacate the Home so that Dutt can sell the Home and place the proceeds in trust in the Mother's name and use those proceeds to fund the shortfall of the Mother's financial needs.
[20] Kamanee has not filed a proper Responding Record. Kamanee filed a January 23, 2018 affidavit. Kamanee has not paid the costs ordered. Aside from her earlier affidavit of January 23, 2018, Kamanee has not filed any responding materials to this summary judgment motion.
[21] Kamanee appeared at the summary judgment motion self-represented. She requested an adjournment.
[22] Surujpattie takes no position on this motion.
Adjournment
[23] The adjournment was denied. Kamanee indicated that she required an adjournment of several months to retain counsel.
[24] Kamanee has had considerable time to retain counsel to deal with this matter. She was strongly advised to retain counsel months ago by RSJ Daley. Kamanee has remained in the Home for approximately 2 years after the Mother was placed in the long term care facility. Kamanee admits she cannot cover the expenses of the Home. Kamanee admits she cannot pay rent. Kamanee has failed to file a responding record or to properly respond to this summary judgment motion.
[25] The request for an adjournment is nothing more than Kamanee trying to delay the inevitable - her moving out so that the Home can be sold for the Mother's benefit.
[26] Nothing would be gained by granting an adjournment.
[27] On the other hand, Surujpattie and Dutt continue to use their limited financial resources (in one case borrowed money from a line of credit) to ensure that the Mother can remain in the long term care facility. This cannot continue indefinitely. Essentially, it means that Surujpattie and Dutt are indirectly supporting Kamanee.
[28] I add one further factor. Kamanee has failed to comply with various orders to move this matter forward. Making another order would appear to be nothing more than a further delay in dealing with the obvious merits of the claims advanced and permit Kamanee to remain in the Home to the Mother's detriment.
[29] The interests of justice are not served by granting an adjournment.
The Summary Judgment Motion
[30] The relevant facts to decide this motion are not in dispute:
a) The Mother is the beneficial owner of the Home;
b) The Mother's personal and financial circumstances require the sale of the Home to generate proceeds for her continued care;
c) Kamanee has not and cannot pay the expenses of the Home, let alone pay any rent;
d) Dutt, the Mother's attorney seeks to sell the Home for proper and legitimate reasons - the Mother's financial needs; and
e) Kamanee refuses to vacate the Home.
[31] Let me deal with one further issue. Kamanee, in her January 23, 2018 affidavit, suggests that she has a trust claim to the beneficial ownership of the Home. This "claim" does not impede the granting of Dutt's motion to sell the Home because:
a) Kamanee admits that the Mother owns the Home. No proper trust claim has been issued or advanced by Kamanee;
b) Kamanee's assertion in her affidavit is nothing more than a bald assertion. No evidence in support of such a claim has been provided despite the fact it is her obligation in a summary judgment motion to put forward her best evidence as to why such a motion should be dismissed;
c) If Kamanee has a claim, it appears to be a claim entitling her to some interest in the Home after the Mother's death. It is a contingent claim at best; and
d) Kamanee's claim appears to be inconsistent with the Mother's actions of having title in the names of her children, which did not include Kamanee.
[32] I am satisfied that a fair and proper adjudication on the merits of the claims made in the Application do not require a trial and can properly be determined on this motion.
[33] Kamanee's submission that she has nowhere else to go is very unfortunate. However, giving effect to such a submission would be to put Kamanee's interests ahead of her Mother's interests in the Home and force her sisters to financially support their Mother (and indirectly Kamanee). As unfortunate as this is, the Mother's interests must come first.
Conclusion
[34] The Summary Judgment motion is hereby granted.
[35] Kamanee shall have 60 days from the date of the hearing of this motion to vacate the Home.
Costs
[36] Dutt seeks partial indemnity costs of $17,574.18 (not including the prior cost award made by RSJ Daley).
[37] Kamanee was given one week after the hearing to make written submissions on costs. Kamanee filed written submissions seeking that no costs be ordered against her.
[38] Much of the written submission relates to a re-argument of the history and merits of the application. However, Kamanee is on disability and has limited income. This is a factor to be considered.
[39] I see no basis to reduce the disbursements of $3,884.23 incurred by Dutt.
[40] While I am sympathetic to Kamanee’s financial circumstances, Kamanee’s conduct has unnecessarily caused Dutt to incur substantial costs. I am satisfied that fees of $7,500 for costs of the application (including the summary judgment motion) are reasonable and fair in all the circumstances.
[41] Costs payable by Kamanee to Dutt of $11,384.23 plus HST. Costs payable within 6 months.
Ricchetti, J.
Date: May 29, 2018
COURT FILE NO.: CV-16-3020
DATE: 20180529
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SURUJPATTIE WADHWANI and BHAGMANIA RAMLOCHAN, a party under a disability by her attorney for property and litigation guardian, SATWATTIE DUTT
Applicants
AND:
KAMANEE KAUSHAL WADHWANI
Respondent
COUNSEL: L. Cardiff, Counsel, for the Applicant, Satwattie Dutt
Surujpattie Wadhwani, self-represented
Kamanee Kaushal Wadhani, self-represented
ENDORSEMENT
Ricchetti, J.
Released: May 29, 2018