COURT FILE NO.: 03-003/16 DATE: 20181012 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Saad Elias, Applicant AND: Suhaila Hawa, Daad Abdulwahid, Sarmed Abdulwahid and the Public Guardian and Trustee, Respondents

BEFORE: Penny J.

COUNSEL: Mr. Elias (respondent on the motion) on his own behalf M.J. Sweatman for Daad Abdulwahid (applicant on the motion)

HEARD: September 26, 2018

Endorsement

Overview and Background

[1] Ms. Hawa is a widow, aged 74. She is the mother of five children: Saad, Raad, Raghad, Ban and Daad. In 2008, Ms. Hawa moved from the Middle East to Canada to live with Daad and her family in Oakville. She has been cared for by Daad and living with Daad since then.

[2] There is before the Court an application by Saad Elias for an order, among other things, declaring that his mother, Suhaila Hawa, is incapable of managing her property and that, as a result, it is necessary for decisions to be made on her behalf by a person who is authorized to do so, appointing his brother, Raad Elias, as guardian of Ms. Hawa’s property and approving a management plan for Raad’s guardianship of Ms. Hawa.

[3] This proceeding was commenced in 2016. There have been a significant number of attendances in court. Numerous affidavits and other materials have been filed by both parties in the application and for the motion.

[4] Mr. Elias resides in California. He has no assets in Ontario.

[5] The attendance on September 26, 2018 was for the purpose of hearing a motion by the respondent, Daad Abdulwahid, for an order for security for costs. The motion was fully argued over the scheduled two hours.

Security for Costs

[6] In the context of an application, a motion for security for costs under r. 56.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 may be made after the respondent has delivered a notice of appearance. This threshold requirement has been met.

[7] A motion under r. 56.01 has two parts:

(1) the moving party must show that it appears that one of the six grounds enumerated in (a) through (f) of r. 56.01(1) exists; and

(2) once the Court is satisfied that one of the criteria of r. 56.01(1) has been met, the Court proceeds to an analysis of whether it is just to make any order for security costs for costs. In part two, the onus shifts to the respondent on the motion to establish that such an order would be unjust. The respondent on the motion may do so by showing:

(a) he has sufficient assets in Ontario or in a reciprocating jurisdiction to satisfy any costs order; or

(b) he is impecunious and his claim is not plainly devoid of merit; or

(c) if he is not impecunious but does not have liquid assets available to satisfy an order as to costs, that his claim has a good chance of success on the merits.

[8] Mr. Elias has had counsel but is presently acting on his own behalf. The Court must accommodate a self-represented litigant’s inexperience with the law and the litigation process. However, any accommodations must respect the rights of the other party as well: that is, that the issues brought before the Court will be decided by the same rules of evidence and substantive law whether the party is represented by counsel or not.

The Purpose of the Costs Regime Generally

[9] Before embarking on an analysis of the specific issue before me whether there should be an order for security for costs made in this case it is worth reviewing the general purpose of the costs regime in Canada which underlies the rules governing security for costs.

[10] As early as the late 13th century, the courts of England had jurisdiction to order costs awards. In the modern Canadian legal system, the Court continues to possess an equitable and discretionary power to award costs which is recognized by provincial statutes and rules of civil procedure: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, at para. 19.

[11] In general, costs awards serve both to encourage and discourage litigation. Recovering costs encourages access to the justice system by ensuring that litigants with legitimate claims, even those with less financial resources, have the opportunity to recover some of the expense of making their successful claim. However, paying costs also discourages litigants from advancing meritless claims or defences. Thus, potential liability for costs discourages inappropriate litigant behavior and the integrity of the Court’s process is protected: Okanagan Indian Band, at para. 26.

[12] More specifically, costs awards achieve the following five purposes:

(1) to indemnify successful litigants for the costs of litigation, although not necessarily completely;

(2) to facilitate access to justice, including access for impecunious litigants;

(3) to discourage frivolous claims and defences;

(4) to discourage and sanction inappropriate behavior by litigants in their conduct of the proceedings; and

(5) to encourage settlements,

Janet E. Walker and Lorne Mitchell Sossin, Civil Litigation (Toronto: Irwin Law, 2010), at pp. 34-35.

[13] Achieving these purposes becomes more difficult in situations where the potentially cost-paying party is able to escape the consequences of paying costs. As Walker and Sossin say at p. 50, “[t]he incentives and deterrents of cost shifting function only where parties actually have something to lose.” These incentives and deterrents are lessened, for example, when a party resides outside of the province has no assets within the immediate reach of the court. It can also occur when the party has, or is believed to have, insufficient assets for payment of costs: Linda S. Abrams and Kevin P. McGuiness, Canadian Civil Procedure Law, 2nd ed. (Markham, Ontario: LexisNexis, 2010) at p. 993.

[14] In such cases, our rules of civil procedure “blend principle with pragmatism” by obliging a party to provide security for the costs that it may ultimately have to pay. Security for costs therefore helps to ensure that the paying party will not be able to frustrate the purposes of costs awards by avoiding its payment obligations.

[15] With this background, I will turn to the specific issues before me on this motion.

Analysis

Step One

[16] It is clear that Mr. Elias does not live in Ontario. He unambiguously resides in San Diego, California. A party ordinarily resident outside of Ontario is one of the enumerated grounds of r. 56.01(1). The first step of a motion under r. 56.01 is therefore satisfied.

[17] Thus, the onus shifts to Mr. Elias to show why it would be unjust to require him to post security for the potential costs of this litigation.

Step Two

Impecuniosity

[18] Mr. Elias concedes that he has no assets in this jurisdiction. Indeed, it is Mr. Elias’ position that he has no assets of any kind at all. Thus, he says he is unable to post security for Daad’s costs in the event Mr. Elias is unsuccessful in his application.

[19] The evidentiary threshold to demonstrate impecuniosity is high. Bald statements unsupported by detail are not sufficient. The threshold can only be reached by tendering complete and accurate disclosure of the applicant’s income, assets, expenses, liabilities and borrowing ability: Coastline Corp. v. Canaccord Capital Corp.. The court must be satisfied on the evidence provided that the responding party on the motion has no ability to muster funding to continue with the proceeding: Weidenfield v. Weidenfield Estate, 2017 ONSC 1275, at para. 18.

[20] Mr. Elias has provided essentially no evidence of his financial capacity beyond bald, conclusory statements that he is impecunious and cannot continue with the litigation if he is required to post security. The applicant came to court with a photocopy of a paystub and made submissions about it, even though he is well aware that evidence must be filed by way of affidavit. [1] For the purposes of this motion, I am prepared to accept that the applicant’s job with a security company generates only modest income. Even accepting the applicant’s “submission” on this point, however, it is a far cry from full and forthright disclosure of his financial circumstances.

[21] In response to the applicant’s claim to have no assets, the respondent put forward evidence that the applicant received from their now deceased father a significant residential/commercial property in Baghdad, Iraq. The applicant disparaged this evidence as being “false” and “not official” but, importantly, did not deny he owns the property. His rebuttal focused on the value of the property (i.e., that it is not worth US $1.4 million as alleged), claiming that there are large mortgages on the property. The applicant did not disclose this interest in the first place and, once it was revealed, he offered no documentary or other corroborative evidence for any of his contentions.

[22] I cannot resolve the disputed question of the value of real property in Baghdad on this record. Rather, the dispute highlights the applicant’s utter failure to make complete and forthright disclosure of his financial circumstances. Too many important questions are unanswered. There is no sworn statement of assets and liabilities. There is no statement of income and liabilities regarding the Baghdad property or regarding the applicant at all. There are no tax returns and no bank, credit card or investment records. There is no monthly budget of income and expenses. There is no explanation or evidence for why he could not borrow the necessary funds. There is no explanation of how the applicant was able to afford multiple flights to Toronto, even to deal with minor procedural and scheduling matters.

[23] Given the significant threshold established by well-settled law, all of these factors outlined above, in combination with the applicant’s lack of forthrightness in financial disclosure, lead me overwhelmingly to the conclusion that the applicant has not discharged the onus of showing he is impecunious. [2]

However, as discussed below, it does not matter whether he has shown whether he is impecunious or not. I say this because, under either scenario, in the view I take of the merits of this application, Mr. Elias has to post security for costs.

The Merits of the Application: Good Chance/Devoid of Merit

[24] It is settled law that if a party has not established that he is impecunious, the threshold test on the merits is whether the applicant has a good arguable case. If the applicant has established impecuniosity, the test on the merits is lower: whether the application is devoid of merit.

[25] As stated above, however, it does not matter whether the test is “good chance of success” or “not devoid of merit.” This is because I have concluded that the applicant, on the evidence, does not meet either test on the critical question in this motion.

[26] To succeed in his application, the applicant must prove, among other things:

(1) his mother, Suhaila Hawa, is incapable of managing her property;

(2) it is necessary that decisions concerning Suhaila’s property be made for her by another person;

(3) the need for decision-making by another person cannot be met by a less restrictive alternative than a finding of incapacity and the appointment of a guardian for property; and

(4) the person proposed as the guardian of Suhaila’s property is an appropriate choice for this role in the circumstances.

[27] Although the real issue in this case is number three above (whether there is a less restrictive alternative), I will briefly address each of the other issues.

[28] There is, under Ontario law, a presumption of capacity for any individual who is over 18 years of age. A person is only incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[29] The Substitution Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”) imposes stringent tests which have to be met before there can be a finding of incapacity. These stringent tests even extend to the ability to conduct an assessment of a person’s capacity without the person’s consent.

[30] There are occasional references in Suhaila’s medical records to memory loss in the 2014/2015 timeframe, and likewise a reference to preliminary indications of dementia in July 2015. This evidence, while raising a concern, would be an insufficient basis to constitute a finding of incapacity in relation to management of property. However, in spite of two years of litigation, the applicant has made no effort to obtain a medical opinion or an assessment regarding his mother’s capacity to manage property. Instead, he has chosen to rely on his own reading and interpretation of physician’s and other caregiver’s notes and his own opinions based on his interpretations.

[31] On the basis of this evidence, I would have found the application to be devoid of merit.

[32] More cogent evidence of possible incapacity, however, comes from the 2018 affidavit of the law clerk of counsel appointed by the Public Guardian and Trustee under s. 3 of the SDA. The law clerk deposed to her experience meeting Suhaila on February 22, 2018. She found during this meeting that Suhaila was uncommunicative and unable to answer even basic questions about herself, her life and her children. She did not understand why she was there at the lawyer’s office. She and Ms. Hassan, s. 3 counsel, concluded that Suhaila was not of sound mind and was not capable of giving instructions. As a result, Ms. Hassan sought to be, and was subsequently, discharged as s. 3 counsel.

[33] Based on this recent evidence from the law firm, I would be prepared to find that the application is not devoid of merit, although it still does not meet the test of good chance of success in establishing Suhaila’s incapacity to manage property.

[34] I come to a similar conclusion with respect to the requirement for the need to appoint another person to make decisions regarding property for the incapable person. Given the evidence from February 2018, the application is not devoid of merit but still would not have a good chance of success of establishing the need for someone to make decisions for Suhaila.

[35] It is the third issue which is truly dispositive of the issues on this motion.

[36] Subsection 22(3) of the SDA provides that the Court shall not appoint a guardian if it is satisfied that the need for decisions to be made on behalf of a person will be met by an alternative course of action that: (a) does not require the Court to find the person to be incapable of managing property; and (b) is less restrictive of the person’s decision-making rights than the appointment of a guardian.

[37] In this case, there is a joint power of attorney for property, executed by Suhaila on May 29, 2015 and witnessed by the drafting solicitor and his law clerk, appointing Daad and Ban as Suhaila’s joint attorneys for property. The joint power of attorney authorizes Suhaila’s attorneys to do anything in respect of property that she could do if capable and confirms that her attorneys may act even if Suhaila is mentally incapable of assisting or becomes mentally incompetent.

[38] Mr. Elias has attacked the joint power of attorney on two grounds:

(a) the applicant says Suhaila was incapable of granting a power of attorney on May 29, 2015 or was duly influenced to do so; and

(b) the applicant says Daad (and by inference Ban) are stealing and misusing Suhaila’s property and thus are misusing their joint attorney powers.

[39] Suhaila had a fall in April 2015 while out walking and was in hospital for a short period of time. She received active medical treatment. There were some indications of short-term memory loss that came up during the course of her medical treatment. The family doctor recommended that consideration be given to having Suhaila appoint a power of attorney. [3] The issue of short-term memory loss came up again during a home visit on April 27, 2015, although, as recorded by the care coordinator, Suhaila responded “appropriately to writer’s questions and was able to remember all the siblings and the names of her children.” Reference to preliminary signs of dementia do not appear in notes of the family doctor until July 29, 2015.

[40] The applicant relies upon these notes and references to argue that, if Suhaila had short-term memory loss in 2014 and 2015, and initial indications of dementia by the end of July 2015, she must have been incapable of appointing attorneys for property in May 2015.

[41] The problem with this argument is that it is based solely on the applicant’s speculation and is utterly without any medical or other evidentiary foundation. As indicated above, the applicant has chosen to rely on his own reading and interpretation of the medical notes and his own, unqualified and inadmissible opinions. This is not evidence upon which a finding of incapacity should or can be made.

[42] It is well known that dementia is a progressive disease. Initial signs of dementia do not mean that a person is incapable. The law is clear, as well, that there are many capacities: the capacity to make a gift; the capacity to make a contract; the capacity to retain and instruct counsel; the capacity to make a will, etc. The law is equally clear that different tests apply to these different capacities – capacity is a function-specific inquiry.

[43] For example, s. 8 of the SDA prescribes that a person is capable of giving a continuing power of attorney if she:

(a) knows what kind of property she has and its approximate value;

(b) is aware of obligations owed to his or her dependents;

(c) knows that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable;

(d) knows that the attorney must account for his or her dealings;

(e) knows that he or she may if capable revoke the power of attorney;

(f) appreciates that unless the attorney manages the property prudently its value may decline; and

(g) appreciates the possibility that the attorney could misuse the authority given.

[44] The respondent has filed a lengthy affidavit of the solicitor who drafted the power of attorney as well as the affidavit of the Arabic interpreter who was present throughout the lawyer’s meeting with Suhaila. These affidavits make it abundantly clear that the lawyer: a) went through all of the relevant tests for determining capacity to appoint an attorney for property; and b) more generally, was cognizant of the need to look for signs of incapacity as well as the exercise of any undue influence. The solicitor and interpreter were both satisfied that Suhaila understood what she was doing and was not subject to undue influence.

[45] On the evidence, I have no hesitation in concluding that the applicant’s argument, that Suhaila lacked capacity on May 25, 2015 to grant a power of attorney for property, is entirely devoid of merit.

[46] With respect to the applicant’s second argument, that Daad (and Ban) are stealing or misusing Suhaila’s property, I am obliged to note that the applicant’s “evidence” in this regard consists of inadmissible hearsay, speculation and argument. He has, effectively, offered no evidence in support of these allegations.

[47] The applicant argues that Daad “stole” the proceeds of sale of their mother’s property in Iraq in 2010 and used it to buy her current home in Oakville. He also argues that Daad is “stealing” her mother’s Ontario Disability Support Program (“ODSP”) payments each month.

[48] The evidence before the Court from Daad and Ban is that Suhaila made a gift of some money to Daad in 2010 to buy a home, in part because Suhaila was going to live in the home with Daad and her husband.

[49] The applicant says Daad and the other sisters used undue influence on their mother and that their mother was incapable in 2010. There is absolutely no evidence Suhaila lacked capacity, or was subjected to undue influence, in 2010. She is, in law, deemed to have been capable and entitled to do whatever she wanted with her assets. And, what she appears to have done with her assets, on the available evidence, makes sense in the context of the overall circumstances.

[50] As to the ODSP cheques, Suhaila lives with Daad. Daad is her primary caregiver. Daad administers her mother’s modest income, charging something for room and board and supplying to her mother all the needs of daily living. The record contains many home visit reports and visits to the doctor reflecting Daad’s care of and responsibility for her mother. In no report or note is there a hint of any inappropriate behaviour or failure to provide her mother with all she needs. Indeed, the notes reflect the exact opposite - an attentive daughter looking after mother with care and concern.

[51] Again, I have no hesitation concluding that the applicant’s claims - that Daad and/or the other sisters are misusing Suhaila’s money - are unsupported by any evidence and are devoid of merit. Thus, I find on the available evidence that the joint power of attorney is prima facie valid and being exercised appropriately. As such, it represents an alternative course of action which does not require the court to make a finding of incapacity to manage property and which is less restrictive of Suhaila’s decision-making rights than the appointment of a guardian. This, I find, is a complete answer to the applicant’s guardianship application.

[52] The final requirement has to do with the appropriateness of the proposed guardian and management plan. On the available evidence, it appears that Daad and her sisters have a much more frequent and positive relationship with their mother than the applicant and Raad. Further, the Public Guardian and Trustee delivered a letter pointing out many deficiencies in the applicant’s proposed management plan. I was not referred to any revised plan of management that corrected any of these deficiencies. On the basis of the existing record, I am obliged to conclude that the application on this issue does not have a good chance of success. In fact, as it currently stands, the application is essentially devoid of merit on this point.

[53] Mr. Elias says if he is required to post security he will not be able to proceed with this litigation. He further claims justice will not be done, because Daad (and Ban) will “get away with” their misappropriations. This argument attempts to gloss over the requirement that Mr. Elias must show some merit to his claims of “injustice.” He has failed to do so. Further, I agree with Myers J., when he noted in earlier proceedings that neither the applicant nor his brother are interested in becoming guardians of Suhaila’s personal care. All they appear to be interested in is control over Suhaila’s money. This is further evidence that the overall justice of the circumstances favour requiring Mr. Elias to post security.

Conclusion

[54] Based on the foregoing conclusions, the test for an order requiring the applicant to post security for costs is met. Accordingly, the applicant is ordered to post security for costs by paying security to the Accountant for the Superior Court of Justice to the credit of this application. The posted sum shall be held by the Accountant for the Court until further order of the Court in connection with these proceedings.

Quantum of Security

[55] The respondent seeks $76,000 full indemnity costs, plus the costs of this motion of a further $30,000 (also full indemnity) as security from the applicant. I am not satisfied that full indemnity costs are warranted in the circumstances. Having found on the available evidence that the application is devoid of merit, I do find it is appropriate to award substantial indemnity costs. The quantum of costs sought is high in relation to the normally summary nature of these types of proceedings. But, the applicant has shown himself to be quite litigious, adding to the costs incurred.

[56] In all the circumstances, I find the applicant must post security for the costs of this application in the amount of $50,000. The application is stayed until the required security for costs is paid. The applicant is further required to pay the respondent’s costs of this motion in the amount of $20,000, forthwith.

Penny J. Date: October 12, 2018

[1] It was not clear whether the paystub represented weekly, biweekly or monthly payments. [2] That said, his assets appear not to be readily available to an Ontario litigant as security for costs. [3] The fact that the doctor thought Suhaila should appoint a power of attorney in April 2015 suggests he thought she was capable of doing so, and that the appointment was to ensure proper care later, in the event her condition progressed to the point that she no longer had capacity.