CORRECTED: 2018 06 14
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: RICARDO JORGE BORGES, Applicant
AND:
MARIA EMILIA MOTA BORGES, THE OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE, ELIAS BORGES and TONY BORGES, Respondents
BEFORE: Justice Irving André
COUNSEL: H. Sachdeva, for the Applicant
D. Seen, for the Respondents, T. Borges and E. Borges
M. Salman, for the Respondent, The Office of the Public Guardian & Trustee
HEARD: March 8, 2018
ENDORSEMENT
Correction Notice
June 14, 2018: Minor typographical corrections made to paras. 5, 18, 26, 27 and 28. Paragraph [34] has had the addition of the following sentence “For this reason, I am disinclined to make a preservation order in this case”. Paragraph [35] has been deleted. Paragraph [36] (7) (4) (now. Para. [35]) in the original endorsement dated June 3, 2018, the completion date has been changed to read July 9, 2018, instead of June 21, 2018
1The applicant, Ricardo Jorge Borges, seeks a number of orders relating to the ongoing control and management of the property of his mother, 85-year-old Maria Emilia Mota Borges (Mrs. Borges), a respondent in this matter. The respondents Elias Borges and Tony Borges, who are siblings of the applicant oppose the applicant’s motion on the grounds that their mother appointed them as her attorneys and that there is no evidence that they have mishandled or misappropriated her property.
BACKGROUND FACTS
2Mrs. Borges, who has three sons, was diagnosed with progressive dementia in 2011.
3Mrs. Borges has property in Canada and Portugal valued between $2 million and $3 million, Canadian dollars.
4On July 2, 2013, Mrs. Borges granted a Power of Attorney to manage her property to her two sons, Elias Borges and Tony Borges. Antonio Azevedo, a lawyer, and law clerk Cristina Nangrato, witnessed the signing of the Power of Attorney. Since then, the two respondents have made decisions on behalf of Mrs. Borges.
5Mrs. Borges currently resides in a Brampton nursing home called Tall Pines. The respondents Elias and Tony Borges moved her into the nursing home after determining that she could no longer live independently even with day-to-day care. The Tall Pines home is a government-managed long term care facility for elderly people which provides care on a 24/7 basis. The monthly cost of the home is $2,600. The cost is covered by Mrs. Borges’ Canada Pension and income from one of her Ontario properties.
6The applicant first saw the Power of Attorney documents on December 8, 2017, and was unaware of its existence before that date.
7On November 16, 2017, the applicant filed an application seeking the following relief:
(a) A declaration that Mrs. Borges is a person incapable of managing her own property;
(b) The appointment of himself as Guardian of the property of Mrs. Borges without bond; and
(c) Costs on a substantial basis and all incidental expenses to be paid out of Mrs. Borges estate on a substantial indemnity basis.
8The applicant is now seeking the following additional relief:
(a) An order that the Public Guardian and Trustee arrange for legal representation for Mrs. Borges, pursuant to section 3 of the Substitute Decisions Act, 1992; S.O. 1992, c. 30 (“SDA”);
(b) An order declaring that the Power of Attorney for property dated July 2, 2013 is invalid or alternatively, a rescission of the Power of Attorney;
(c) An order compelling Elias Borges and Tony Borges to pass their accounts with respect to their dealings on behalf of Maria Emilia Mota Borges; and
(d) An order compelling Antonio Azevedo and the Law firm of Azevedo & Nelson to provide all records, notes and files relating to Mrs. Borges with respect to the consultation and execution of the Power of Attorney for property dated July 2, 2013.
ANALYSIS
9This motion raises the following issues:
Should the court make an order that the Public Guardian and Trustee arrange for legal representation for Mrs. Borges?
Should the applicant be granted leave to amend the Notice of Application dated November 16, 2017, in a form attached as Schedule A?
Should counsel for Mrs. Borges or her medical doctor be ordered to produce all their records and files pertaining to Mrs. Borges?
Should the respondents pass their accounts in respect of their dealings on behalf of Mrs. Borges?
Should the court make an order regarding the preservation and non-dissipation of Mrs. Borges property?
Should the court approve of a plan?
1. Legal Representation for Mrs. Borges
10Section 3(1) of the SDA provides that:
3 (1) If the capacity of a person who does not have legal representation is in issue in a proceeding under this Act,
(a) the court may direct that the Public Guardian and Trustee arrange for legal representation to be provided for the person; and
(b) the person shall be deemed to have capacity to retain and instruct counsel.
11Section 3(2) of the SDA provides that if legal representation is provided for such individual, and the Legal Aid Plan fails to issue a legal and certificate to cover the legal expenses of the individual, he or she is responsible for the legal expenses incurred.
12The respondents are not opposed to the appointment of counsel for Mrs. Borges by The Office of the Public Guardian and Trustee (“PGT”). The PGT has also indicated in a letter dated December 15, 2017, that Mrs. Borges should have her own counsel given the conflict between her sons about her mental capacity and control over her property. Given the value of Mrs. Borges’ assets, it is clear that she would not qualify to receive a legal aid certificate. Accordingly, Mrs. Borges’ legal fees and disbursements will have to be paid from her property.
2. Leave to Amend Application
13In his application dated November 16, 2017, the applicant sought an order compelling Mrs. Borges’ doctor and counsel who assisted Mrs. Borges in preparing her Power of Attorney to disclose all relevant medical and documents to the applicant. The applicant seeks to amend his relief and instead seeks an order that counsel for Mrs. Borges produce all medical files and records relating to Mrs. Borges from January 1, 2011 to the present, which is an earlier date to when the Power of Attorney was signed.
14The applicant also seeks an order mandating Mrs. Borges’ counsel to produce all records, notes and files relating to Mrs. Borges with respect to the consultation and execution of the Power of Attorney for Property dated July 2, 2013.
15The respondents do not oppose the proposed amendments to the relief sought by the applicant. However, they oppose the orders sought by the applicant regarding the cancellation of the Power of Attorney and the disclosure of Mrs. Borges’ medical records to the applicant.
Cancellation of the Power of Attorney
16The applicant submits that Mrs. Borges’ 2011 diagnosis justifies a cancellation of the July 2013 Power of Attorney given that Mrs. Borges lacked the capacity to sign such an order.
17Mrs. Borges’ medical condition when she signed the Power of Attorney is unknown, given that a medical report dated March 2013 referred to by a Dr. Matthew who dealt with her has not been disclosed. Rather, the respondents have disclosed medical reports pertaining to Mrs. Borges dated September 26, 2013, February 14, 2014, February 3, 2015, August 28, 2015, August 12, 2016, January 1, 2017, July 25, 2017 and January 17, 2018.
18These medical reports all confirm that Mrs. Borges has experienced a general decline in her cognitive abilities. For example, the February 3, 2015 report indicates that functionally, Mrs. Borges has had a slight decline. The report dated August 25, 2015 indicates that in the last six months, Mrs. Borges “continues to have decline (sic) in her memory”. The January 1, 2017 report notes that Mrs. Borges’ “memory has progressively” worsened. The July 17, 2017 report states that Mrs. Borges’ “cognitive and function are declining, but currently she is managing well living home alone with her family’s help”.
19These reports do not support the applicant’s contention that Mrs. Borges lacked capacity when she signed the Power of Attorney in July 2013. In my view however, the respondents should disclose the March 2013 medical reports, given that they had no difficulty disclosing the medical reports since then.
20The applicant relies on the case of Bishop et al. v. Bishop, (2006) O.J. no. 3540 (S.C.) for the proposition that even in a case involving a mild case of dementia, courts have not hesitated to set aside a Power of Attorney.
21The facts in Bishop however, are much more clear cut with respect to the assigning of a Power of Attorney and the mental health of the elderly lady, Alma Bishop, who assigned a Power of Attorney in December 2005. An independent medical assessment of Ms. Bishop’s mental situation in December 2005 by Dr. Howard Dombrower concluded that: “It is my opinion, … this lady is not capable to assign or change a Power of Attorney” (at para. 21).
22There is no similar medical assessment of Mrs. Borges within the period when she signed the Power of Attorney. As a result, I am not persuaded that the Power of Attorney should be revoked. However, a copy of Mrs. Borges’ medical report dated March 2013 should be disclosed to the applicant following which the applicant can bring a motion to revoke a Power of Attorney if necessary.
Disclosure of Files of Legal Counsel who Drafted the Power of Attorney
23The applicant also seeks disclosure of the legal files of the lawyer who drafted Mrs. Borges’ Power of Attorney and witnessed its signing.
24I am disinclined to order the disclosure of the files of counsel who drafted the Power of Attorney and witnessed its signing for the following reason. As noted by Myers J. in Seepa v. Seepa, 2017 ONSC 5368, at para. 28, “the law is replete with directives from the Supreme Court of Canada and all levels of courts in Canada concerning the fundamental importance of the confidentiality of the relationship between lawyers and their clients.” The issue regarding the validity of the Power of Attorney is not the conduct of counsel who drafted the Power of Attorney, but rather concern the mental condition of Mrs. Borges when she signed the Power of Attorney. I am not satisfied that there should be a disclosure of any file retained by legal counsel.
3. Disclosure of Medical Records and Files
25To the extent that Mrs. Borges was diagnosed in 2011 with suffering from progressive dementia, the medical records relating to this diagnosis may be relevant to the issue concerning the validity of the Power of Attorney which Mrs. Borges is purported to have signed two years later. It can reasonably be assumed, if the diagnosis is correct, that Mrs. Borges’ mental condition may have deteriorated by 2013. To that extent, disclosure of Mrs. Borges’ medical records and documents relating to her signing of the Power of Attorney, is appropriate in the circumstances. I am mindful of the Court’s admonition in Seepa, at para. 28, that “no information is more personal and is accorded a higher standing in discussion of privacy law than a person’s medical files.” However, the respondents have disclosed Mrs. Borges’ medical files from 2013 to 2017. There is no reason why they should not disclose any medical record that may be relevant to the issue of Mrs. Borges’ capacity.
4. Passing of Accounts
26The applicant maintains that the respondent Tony Borges was in a fiduciary relationship with Mrs. Borges given that he was made a signatory to the account and has withdrawn sums of money from Mrs. Borges’ account. Furthermore, the applicant pleads that Mr. Tony Borges has been paying his wife the sum of $1,400 monthly from the account.
27In Estate of Annie MacKay v. Dawn MacKay, 2015 ONSC 7429, the court noted that the addition of the name of an adult child to an elderly parent’s account is sufficient to create a fiduciary duty on the child in relation to the parent’s account. Section 32 (6) of the SDA also creates a fiduciary duty to keep accounts of all transactions involving the property of elderly persons. In Seepa, at para. 45, Myers J. noted, in dealing with a request for access to medical and legal records of an elderly person to establish her incapacity and for the passing of accounts by her caregiver, that devising “an abbreviated process, starting with an all-hands meeting with counsel to review the files of counsel followed by a further case conference if necessary”, is appropriate.
28Other than claiming that one of the respondents is paying his wife $1,400 monthly to care for Mrs. Borges, the applicant has not presented any evidence of financial transgressions by either respondent. It is not unreasonable that the spouse of one of the respondents was paid a reasonable sum to care for Mrs. Borges. The monthly amount which the respondents are now paying the Tall Pines long care home significantly exceeds this amount.
29Given the paucity of evidence regarding any alleged financial transgressions by the respondents in the care of their mother, the application for an order regarding the passing of accounts is denied.
5. Preservation and Non-Dissipation of Mrs. Borges’ Property
30There is no evidence that the respondents have dissipated or are in the process of dissipating Mrs. Borges’ property.
31On the other hand, the respondent Tony Borges has deposed that the applicant has been less than forthright in his financial dealings with Mrs. Borges’ property. For example, he deposed that the applicant collected rent from a property in Caledon on behalf of Mrs. Borges for the years 2011 to 2012 and “kept it without disclosing it to anyone”. Second, the applicant charged $20,000 to repair a well on Mrs. Borges property; a fact disputed by the applicant in his affidavit. The well was ultimately repaired by a third party for $1,500. Finally, Tony Borges deposed that the applicant sought to be paid $50 an hour to be employed as the property manager of his mother’s property.
32Under s. 45.01 of the Rules of Civil Procedure, a Court may make a preservation order for any property in question in the proceeding. Rule 45.02 provides that “[w]here the right of a party to a specific fund is in question, the court may order the fund to be paid into court or otherwise secured on such terms as are just.” In RJR MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, at pages 347-349, the Supreme Court of Canada set out the following tripartite test for the granting of this relief:
(a) the moving party claims a right to a specific fund;
(b) there is a serious issue to be tried regarding that claim; and
(c) the balance of convenience favours granting the relief sought by the plaintiff.
33In Sadie Moranis Realty Corporation v. 1667038 Ontario Inc., 2012 ONCA 475, at para. 27, Goudge J.A. noted that: “I do not think that rule 45.02 requires that the legal right to the specific fund claimed by the plaintiff be a proprietary right”.
34Does the applicant claim a right to a specific fund? In my view, he does not do so. The rental proceeds of Mrs. Borges’ Caledon property belong to Mrs. Borges. The applicant does not have a right to the fund. He may acquire such a right at some time in the future. For this reason, I am disinclined to make a preservation order in this case.
ORDER
35Order to issue as follows:
This court orders that the Public Guardian and Trustee arrange for legal representation to be provided to the respondent, Maria Emilia Mota Borges, pursuant to section 3 of the Substitute Decisions Act, 1992, as amended, and that pursuant to s. 3(1)(b) of the Act, Maria Emilia Mota Borges shall be deemed to have capacity to retain counsel.
This court orders that Maria Emilia Mota Borges’ reasonable legal fees and disbursements shall be paid from her property unless a Legal Aid Certificate is issued in connection with this proceeding.
This court orders that counsel arranged by the Public Guardian and Trustee, as legal representative for the respondent, Maria Emilia Mota Borges, shall be entitled, upon request to the parties excepting the Public Guardian and Trustee, to production and delivery of a copies of any and all documents filed in these proceedings.
This court orders that the applicant is granted leave to amend the Notice of Application dated November 16, 2017.
This court orders that the respondent Tony Borges shall produce all medical records and files relating to Maria Emilia Mota Borges for the period January 1, 2013 to August 31, 2013.
This court orders that any fees or expenses related to the production of the medical records and files for Maria Emilia Mota Borges shall be paid from Maria Emilia Mota Borges’ property.
This court orders that the following timetable shall be followed:
STEPS
TO BE COMPLETED BY
1
Section 3 counsel to be appointed
June 21, 2018
2
The applicant to issue and serve his Amended Notice of Application
June 28, 2018
3
The applicant to deliver to Maria Emilia Mota Borges’ counsel, copies of pleadings, motion records, and orders
June 21, 2018
4
The respondents to file their responding materials
June 21, 2018
5
Maria Emilia Mota Borges’ counsel to request and produce medical records for Maria Emilia Mota Borges
July 15, 2018
COSTS
36Success in this motion is divided, there shall be no order regarding costs.
André J.
Date: June 3, 2018
Corrected: June 14, 2018