COURT FILE NO.: CV-14-321-00
DATE: 2018-11-28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ESTATE OF JOANN DUNLEVY by her litigation administrator GLENN DEKOKER, GLENN DEKOKER, CHRISTOPHER DUNLEVY, a minor, by his litigation guardian GLENN DEKOKER, DALLAS DUNLEVY, a minor, by his litigation guardian GLENN DEKOKER and DARREN SCOTT, a minor, by his litigation guardian GLENN DEKOKER
Plaintiffs
- and -
MARK AMMAR HAWASS, JEFFREY DAVID HANDLER, KATHERINE CANCERAN, PATIENCE ATIBA and WILLIAM OSLER HEALTH CENTRE
Defendants
Counsel:
Paul Harte and Giuseppe Michelucci, for the Plaintiffs
Eli D. Mogil and Jessica L. Laham, for the Defendants, Dr. Jeffrey David Dandler and Dr. Mark Ammar Hawass
Barbara Walker-Renshaw, for the Defendants, William Osler Health Centre, Katherine Canceran, and Patience Atiba
Samantha Preshner, for the Office of the Children's Lawyer
HEARD: November 29, 2017, at Brampton, Ontario
Before: Price J.
Reasons For Order
OVERVIEW
[1] On January 29, 2012, Glenn Dekoker ("Mr. Dekoker") who, at the time, was the substitute decision maker for Joann Dunlevy ("Ms. Dunlevy"), took Ms. Dunlevy to the emergency room of the William Osler Health Centre in Brampton. He states that, while there, Ms. Dunlevy was left to languish in pain without appropriate treatment for six hours, until she suffered a cardiac arrest.
[2] Ms. Dunlevy presented with an elevated heart rate of 155 bpm, well above the normal fast heart rate of 100 for a woman her age. X-rays disclosed that she had a perforated bowel. Dr. Hawass, the treating emergency physician, treated her for constipation and did not place her on a heart monitor. Following her cardiac arrest, she was operated on but suffered brain damage, and was pronounced dead on February 4, 2012.
[3] At the time of her death, Ms. Dunlevy was caring for her three grandchildren, who were, and are, minors. They are now 12, 14, and 15 years old. For two years after Ms. Dunlevy's death, her grandchildren lived with, and were cared for by, their step-grandfather, Mr. Dekoker, until the eldest, at his request, went to live with his biological father, and the youngest two were adopted by a wealthy couple.
[4] In 2014, Mr. Dekoker began an action under s. 61 of the Family Law Act for damages for loss of care, guidance and companionship on behalf of himself and the grandchildren against Ms. Dunlevy's treating physicians, the hospital, and two nurses who had assisted in her care, claiming that their negligent care had contributed to her death. In 2015, the court appointed Mr. Dekoker to act as litigation guardian for the grandchildren.
[5] The Defendant Doctors (Dr. Handler and Dr. Hawass) move for summary judgment dismissing the action against them on the grounds that there is no genuine issue requiring trial as Mr. Dekoker, they assert, is not a spouse of Ms. Dunlevy, as defined by s. 29 of the Family Law Act, and therefore is not entitled to claim damages pursuant to section 61 of the Act. The Defendant Hospital and Hospital employee (Osler and Patience Abita) support the Defendant Doctors in their motion.
[6] The Defendant Doctors additionally seek an Order pursuant to Rule 7.06 removing Mr. Dekoker as Litigation Guardian. They initially applied to replace him with the Children's Lawyer "or another appropriate person" but the Children's Lawyer opposed their motion and did not consent to act. They now seek an Order removing Mr. Dekoker as Litigation Guardian and dismissing the Minor Plaintiffs' claim without prejudice to their right to make a claim in the future. The Hospital Defendants propose, instead, staying the Minor Plaintiffs' action until they secure a replacement as Litigation Guardian.
[7] The Defendant Doctors argue that Mr. Dekoker should be removed as Litigation Guardian on the ground that he has had no contact with the Minor Plaintiffs since they left his home at the end of 2014. They argue that he is unable to obtain evidence to support their claims, and is unable to act in their best interests. The Children's Lawyer stated that Mr. Dekoker is able to communicate with Dallas' father and with Christopher's and Darren's adoptive parents.
BACKGROUND FACTS
The relationship between Mr. Dekoker and Ms. Dunlevy
[8] At his examination for discovery, Mr. Dekoker testified that he and Ms. Dunlevy lived together in a conjugal relationship from approximately 2001 until Ms. Dunlevy's death in 2012. Mr. Dekoker has sworn two affidavits, and his son, Glen Vander-Elst, has also sworn an affidavit. Both assert that Mr. Dekoker and Ms. Dunlevy were in a common law relationship from approximately 2002 until Ms. Dunlevy's death. A further affidavit was sworn by a neighbor, Judy Burrow, attesting to the same fact.
[9] The Defendants cross-examined Mr. Dekoker and his son on their affidavits. While offered the opportunity to cross-examine Ms. Burrow, they elected not to do so. They took the position that her affidavit, having been produced to them after their cross-examinations of Mr. Dekoker and his son, was late and should not be received by the court.
[10] Mr. Dekoker states that Ms. Dunlevy moved into his home after separating from her husband and about six months after going through a bankruptcy. He states that at that time, he shared the home with his two children, Glen and Douglas Vander-Elst. He states that he and Ms. Dunlevy slept together in the same bed, and lived together until her death. He states that they lived together for about ten years, during which they had an exclusive relationship and were never unfaithful to each other.
[11] Mr. Dekoker states that he and Ms. Dunlevy slept, shopped, cooked, cleaned, socialized, and lived together as a couple. According to both Glen Vander-Elst and a neighbor, Judy Burrow, Mr. Dekoker and Ms. Dunlevy were treated as a couple by their neighbours, friends, and family. Both Mr. Dekoker and his son were cross-examined at length on their evidence but according to Mr. Dekoker, Mr. Vander-Elst was not challenged on any of these points.
[12] Judy Burrow asserts in her affidavit that she was Mr. Dekoker's next door neighbour for many years, and that Ms. Dunlevy moved in with Mr. Dekoker around 2002. The Defendants did not cross-examine Ms. Burrow her on her affidavit, which is therefore unchallenged.
[13] Dr. Millie Paupst's consult note dated January 22, 2007, states that Mr. Dekoker was then divorced and had two sons, aged 24 and 27. She states that he lived alone with his dog Buster. Ms. Dunlevy's income tax returns for 2007, 2008, and 2009, describe her marital status as "divorced".
[14] The minor Plaintiffs are 12, 14, and 15 years old. Ms. Dunlevy applied for sole guardianship of them in 2010, at which time they came to live with her and Mr. Dekoker. Ms. Dunlevy's income tax returns for 2010 and 2011 describe her status as "common law". Ms. Dunlevy's tax return for 2012 describes her status as "single".
The circumstances of Ms. Dunlevy's death
[15] Mr. Dekoker took Ms. Dunlevy to the Emergency Department of William Osler Health Centre on January 20, 2012, with symptoms of abdominal pain, constipation, and difficulty and pain with urination and nausea.
[16] Ms. Dunlevy was assessed by Dr. Mark Ammar Hawass ("Dr. Hawass"), who completed a physical examination of her on January 30, 2012. Dr. Hawass ordered abdominal x-rays, which he later reviewed. He interpreted the x-rays as normal and diagnosed Ms. Dunlevy with constipation. Based on his diagnosis, Dr. Hawass ordered a number of enemas for Ms. Dunlevy.
[17] The x-rays were later reviewed by a radiologist who concluded that they were indicative of a bowel perforation. Ms. Dunlevy's condition continued to deteriorate through the night after receiving multiple enemas and an oral laxative. The Defendants, Katherine Canceran ("Nurse Canceran") and Patience Atiba ("Nurse Atiba") were responsible for Ms. Dunlevy's care and did not inform Dr. Hawass of her worsening condition.
[18] Dr. Hawass did not check on his patient's progress during the time when she received the enemas. In the early hours of January 30, 2012, Ms. Dunlevy suffered a cardiac arrest. A code blue was called, and Ms. Dunlevy was resuscitated. An Intensive Care Unit (ICU) doctor noted that Ms. Dunlevy's abdomen was distended and a CT was performed. The results disclosed a perforated bowel.
[19] Surgical intervention was attempted. After the surgery, Ms. Dunlevy was comatose and unresponsive. She had suffered irreversible anoxic brain damage and was considered brain dead. She was officially pronounced dead on February 4, 2012.
The events that followed Ms. Dunlevy's death
[20] Dallas Dunlevy left Mr. Dekoker's home in about November 2013 to live with his father and grandmother. Mr. Dekoker had one conversation with Dallas' father in 2013, in which Mr. Dekoker informed Dallas' father that he did not want Dallas' father to bring Dallas back to Mr. Dekoker's home.
[21] On January 7, 2014, Mr. Dekoker gave written authority to Paul Harte Professional Corporation to act on behalf of Dallas Dunlevy in this action. On January 16, 2014, Mr. Dekoker swore an Affidavit of Litigation Guardianship to be appointed as Litigation Guardian for Dallas Dunlevy, without the knowledge of Dallas or his father.
[22] In February 2014, Christopher Dunlevy and Darren Scott left Mr. Dekoker's home and were permanently placed together with a wealthy adoptive family. Mr. Dekoker does not know what Christopher's and Darren's or Dallas' wishes are today with respect to this action.
[23] On April 29, 2015, Edwards J. made an Order appointing Mr. Dekoker as litigation administrator for Mrs. Dunlevy's estate, and as Litigation Guardian for Ms. Dunlevy's grandchildren, as Family Law Act claimants.
ISSUES
[24] The motions require the Court to determine the following issues:
a) Do the medical malpractice claim and Mr. Dekoker's Family Law Act claim raise genuine issues requiring trial?
b) Should Mr. Dekoker be removed as litigation guardian for the three minors?
PARTIES' POSITIONS
a) Does Mr. Dekoker's Family Law Act claim raise genuine issues requiring trial?
Defendant Doctors' Position
[25] It is not disputed that Mr. Dekoker and Ms. Dunlevy were never married. The Defendant Doctors rely on the definition of spouse in the Family Law Act. The Family Law Act provides that a spouse includes either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years, or in a relationship of some permanence, if they are the parents of a child as set out in s. 4 of the Children's Law Reform Act.
[26] The Defendant Doctors submit that Mr. Dekoker and Mrs. Dunlevy did not cohabit for three years prior to Ms. Dunlevy's death, and that Mr. Dekoker was therefore not a spouse as defined by the Family Law Act, and is not entitled to claim damages pursuant to s. 61 of the Act.
[27] The Defendant Doctors rely on records produced by Mr. Dekoker in compliance with undertakings he gave at his cross-examination. They argue that the records indicate that Mr. Dekoker was living alone for several years, and as late as October 2009. Records from his psychiatrist indicate that he rented out his basement to a woman whose drug-abusing daughter was unable to care for her children. Ms. Dunlevy's three grandchildren resided at Ms. Dunlevy's and Mr. Dekoker's home because Ms. Dunlevy's daughter was unable to care for them. Ms. Dunlevy, in her income tax returns from 2007-2009, indicated her marital status as "divorced". Several records indicate that her home address was the basement of Mr. Dekoker's home.
[28] Mr. Dekoker was required to put his best foot forward on the motion. The Defendant Doctors argue that there is no readily available documentary evidence, such as photographs, mail, bills, letters, emails, insurance policies, or medical records, to support Mr. Dekoker's assertion that he was Ms. Dunlevy's spouse. More than a year after being alerted to these concerns, no record has been adduced to support his assertion that a common law relationship existed between them for 10 years.
Plaintiffs' Position
[29] Mr. Dekoker submits that he has a valid Family Law Act claim because he was Mrs. Dunlevy's spouse. He asserts that Ms. Dunlevy moved into his home and shared his bed. He states that they lived together for nearly 10 years and were recognized as partners by their neighbors, friends, and family. The unchallenged affidavit of Judy Burrow, a longtime neighbor, supports his assertion that he was Ms. Dunlevy's spouse.
[30] Mr. Dekoker argues that the productions that the Defendants rely on to challenge his status as Ms. Dunlevy's spouse are false, inaccurate, or incomplete. He states that he told his psychiatrist he was living alone to get additional benefits from WSIB. He argues that the court should not draw an inference from these productions in preference to the affidavits from Mr. Dekoker, his son, and his former neighbor, Judy Burrow. He argues that the credibility of the witnesses, to the extent it is disputed, gives rise to a genuine issue for trial.
The Court's findings and disposition of the issue
[31] For the reasons that follow, I find that there is ample evidence that Mr. Dekoker was Ms. Dunlevy's spouse for at least three years prior to her death, so as to give rise to a genuine issue requiring a trial. The defendants' motion for summary judgment will therefore be dismissed.
b) Should Mr. Dekoker be removed as litigation guardian for the three minors?
Defendant Doctors' Position
[32] The Defendant Doctors submit that Mr. Dekoker should be removed as litigation guardian for the three minor children. They argue that contradictions in his evidence disclose that he is not credible.
[33] Additionally, the Defendant Doctors submit that Mr. Dekoker has no contact with the minor children and cannot act in their best interests. At his examination on discovery, Mr. Dekoker testified that Ms. Dunlevy's grandson, Dallas Dunlevy, began living with him and Ms. Dunlevy in 2010, but has resided with his father since the end of 2013. Mr. Dekoker has had no contact with Dallas since that time.
[34] Mr. Dekoker testified that Ms. Dunlevy's other grandsons, Christopher Dunlevy and Darren Scott, began living with him and Ms. Dunlevy in 2010, but were adopted around February 2014. He has no contact with them since then.
Plaintiffs' Position
[35] Mr. Dekoker argues that there is no evidence that he will not act in the minor grandchildren's best interests. He asserts that his personal interests are aligned with theirs and that he has close ties to them, and can provide evidence of their loss. He has not sought the consent of the grandchildren's next of kin because they are estranged from the next of kin.
Children's Lawyer's Position
[36] The Children's Lawyer opposes the Defendants' motion. It notes that Mr. Dekoker is willing to continue to act as the minor Plaintiffs' litigation guardian and is able to do so.
[37] The Children's Lawyer submits that the Defendants have conflated the requirement of protecting the interests of minor parties with the criteria for obtaining the views and preferences of minors involved in family law proceedings. It is not the role of a litigation guardian to put forward the views of a minor but, rather, to act as a substitute decision maker in the litigation.
[38] The Children's Lawyer notes that as an institutional litigation guardian, it has no personal knowledge of the minor Plaintiffs, their relationship with the deceased, or their loss.
[39] The Children's Lawyer submits that the facts do not warrant the unusual remedy of having the Children's Lawyer substituted for an existing Litigation Guardian who has complied with the laws of Ontario, does not have a conflict or adverse interest to the minors, and is willing and able to discharge the duties of a litigation guardian. The Children's Lawyer is a litigation guardian of last resort, and will act in this capacity only if there is no other person willing and able to do so.
The Court's findings and disposition of the issue
[40] For the reasons that follow, I find that Mr. Dekoker is qualified to be the litigation guardian of the minor children. An order shall not be made removing him from that role.
ANALYSIS AND EVIDENCE
a) Does Mr. Dekoker's Family Law Act claim raise genuine issues requiring trial?
(i) General principles
Legislative framework
[41] Motions for summary judgment are governed by Rule 20 of the Rules of Civil Procedure. It provides:
- WHERE AVAILABLE
To Defendant
20.01 (3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.
Evidence on Motion
20.02 (2) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party's pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.
Disposition of Motion
20.04 (2) 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.
Powers
(2.1) In determining, under clause (2)(a), whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
Oral Evidence (Mini-Trial)
(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
[42] Rule 20.04 provides that where there is no genuine issue for trial with respect to a claim or defence, the court shall grant summary judgment accordingly. Pursuant to Rule 20.04(2), the court may grant summary judgment in the following circumstances:
Where the parties agree;
Where the claim is without merit;
Where the motions judge is able to dispose of the matter and where the trial process is not required in the "interest of justice."[^1] [Emphasis added]
Jurisprudence
[43] In 2014, the Supreme Court of Canada, in Hryniak v. Mauldin,[^2] and Bruno Appliances and Furniture Inc. v. Hryniak,[^3] reinterpreted Rule 20 of the Rules of Civil Procedure, taking into account the need for the court to preserve the public's access to justice. The Supreme Court held that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely, and just adjudication of claims. It held that a trial is not required if the court hearing a summary judgment motion can make a fair and just adjudication, by making the necessary findings of fact, and applying the law to those facts. This is advisable if the process is proportionate, more expeditious, and a less expensive means of achieving a just result than going to trial.
[44] The Supreme Court observed that the summary judgment motion judge must assess the interests of justice that would be served by summary judgment, taking into account the relative efficiencies that would be served by that process and those that would be served by a trial, including the cost and speed of each procedure, the evidence that is available on the motion versus the evidence that would be available at trial, and the opportunity to evaluate such evidence fairly. As the Supreme Court stated, there will be no genuine issue requiring a trial if the summary judgment process gives the motion judge the evidence required to fairly and justly adjudicate the dispute on its merits, and is a proportionate, more expeditious, and less expensive means to achieve a just result.
[45] In Sweda Farms v. Egg Farmers of Ontario, (2014), Corbett J. described the current approach to summary judgment motions following Hryniak, as follows:
Summary judgment motions come in all shapes and sizes, and this is recognized in the Supreme Court of Canada's emphasis on "proportionality" as a controlling principle for summary judgment motions. This principle does not mean that large, complicated cases must go to trial, while small, single-issue cases should not. Nor does it mean that the "best foot forward" principle has been displaced; quite the reverse. If anything, this principle is even more important after Hryniak, because on an unsuccessful motion for summary judgment, the court will now rely on the record before it to decide what further steps will be necessary to bring the matter to a conclusion. To do this properly, the court will need to have the parties' cases before it.[^4]
[46] The Supreme Court of Canada, in Hryniak, gave guidance as to how Rule 20 should be applied to promote timely and affordable access to the civil justice system. Karakatsanis J., on behalf of the Court, noted that such motions are an opportunity to simplify pre-trial procedures and move the emphasis away from the conventional trial, in favour of proportional procedures tailored to the needs of the particular case. She stated:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.[^5]
[Emphasis added.]
[47] Karakatsanis J. held that the judge hearing a motion for summary judgment must compare the procedures available in such a motion, supplemented, if necessary, by the fact-finding tools provided by Rules 20.04(2.1) and (2.2), with those available at trial, to determine whether the court can make the necessary findings of fact and apply the principles of law to those facts in a proportionate, most expeditious, and least costly manner, to achieve a just result:
This inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial. This would involve a comparison of, among other things, the cost and speed of both procedures. (Although summary judgment may be expensive and time consuming, as in this case, a trial may be even more expensive and slower.) It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it. (Even if the evidence available on the motion is limited, there may be no reason to think better evidence would be available at trial.)[^6]
[Emphasis added.]
[48] Based on the guidelines set out in Hryniak, I must first determine, based on the evidence before me, and without using the new fact-finding powers under Rule 20.04, whether there is a genuine issue requiring trial, whether I can fairly and justly adjudicate the dispute, and whether the motion is a timely, affordable, and proportionate procedure under Rule 20.04(2)(a). If there is no genuine issue requiring a trial, I must grant summary judgment.[^7]
[49] If there appears to be a genuine issue requiring a trial, I must exercise my discretion to determine whether the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2), provided their use will not be contrary to the interests of justice and will lead to a fair and just result, and serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole.[^8]
[50] The party moving for summary judgment has the onus of establishing that there is no genuine issue of material fact requiring a trial. Once that onus is met, the burden shifts to the responding party, opposing summary judgment, to demonstrate that their claim has a "real chance of success".[^9]
Applying the legal principles to the facts of this case
[51] Section 29 of the Family Law Act, R.S.O. 1990, c. F.3, provides:
In this Part,
"dependant" means a person to whom another has an obligation to provide support under this Part; ("personne à charge")
"spouse" means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited,
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children's Law Reform Act. ("conjoint")
[52] The Defendant Doctors acknowledge that the evidence discloses that Mr. Dekoker was likely the common law spouse of Ms. Dunlevy at the time of her death. He was her substitute decision-maker and took her to the Hospital on June 29, 2012.
[53] The Defendant Doctors further acknowledge that it is likely, based on the evidence, that Mr. Dekoker was Ms. Dunlevy's common law spouse in 2010 and 2011. Ms. Dunlevy filed income tax returns in those years in which she described her marital status as "common law".
[54] Based on the evidence before me, and without using the new fact-finding powers under Rule 20.04, I find that there is a genuine issue requiring trial, and that I cannot fairly and justly adjudicate the dispute as to whether Mr. Dekoker was Ms. Dunlevy's spouse within the meaning of s. 29 of the Family Law Act.
[55] The issue is whether it is likely that Mr. Dekoker was Ms. Dunlevy's common law spouse from February 2009, (three years before her death), to February 2010. Mr. Dekoker, his son, and their former neighbour, Judy Burrow, assert that he was Ms. Dunlevy's common law spouse since about 2002. The Defendant Doctors dispute this. They argue that all independent records available point to the contrary. I disagree for the following reasons:
a) The medical records that the Defendant Doctors rely on to establish that Mr. Dekoker lived alone in 2009 also suggest that he lived alone in 2010 and 2011.
b) Mr. Dekoker has provided an explanation for why the medical records suggest that he was living alone. He says that his doctor, who helped him with his WSIB application, told him that he would get more help from WSIB if he lived alone.
c) The records of Dr. Sumner continue to suggest that Mr. Dekoker lived alone in 2010, when the Defendant Doctors acknowledge that it is likely Mr. Dekoker and Ms. Dunlevy were common law spouses.
d) Besides the medical records, the Defendant Doctors rely on the absence of photos, bills, pensions, etc. These documents are also absent for 2010 and 2011, when the Defendant Doctors acknowledge that Mr. Dekoker and Ms. Dunlevy were common law spouses.
e) Both Mr. Dekoker and his adult son, Glen, depose that Mr. Dekoker and Ms. Dunlevy were common law spouses from 2002 onward. Glen Dekoker Jr. resided in the home throughout that period, and would have had knowledge of the nature of his father's relationship with Ms. Dunlevy.
f) Ms. Burrow deposes that the parties were common law spouses from 2002 onward. She is the former neighbour of Mr. Dekoker and Ms. Dunlevy. She is an independent witness who has no stake in the outcome. She was not cross-examined by the Defendants and her evidence is therefore unchallenged.
[56] For the foregoing reasons, there is, at the very least, a genuine issue requiring a trial as to whether Mr. Dekoker was Ms. Dunlevy's spouse within the meaning of the Act. The ultimate determination of the issue will require many witnesses, including Mr. Dekoker, his son, Ms. Burrow, and possibly Ms. Dunlevy's grandchildren, whose evidence will also be required on the issue damages. Duplicating the evidence of those witnesses at a motion under Rule 20.04(2)(a) and at trial would not be an economic use of the Court's resources nor lead to a timely, affordable or proportionate procedure.
[57] For the same reasons, the need for a trial cannot be avoided by using the new powers under Rules 20.04(2.1) and (2.2). The use of those powers in the present case would be contrary to the interests of justice and would not serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole.
b) Should Mr. Dekoker be removed as litigation guardian for the three minor Plaintiffs?
Legislative framework
[58] Rule 7.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 sets out the duties of a Litigation Guardian. It provides:
7.05 (2) A litigation guardian shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests, including the commencement and conduct of a counterclaim.
[59] 7.06 of the Rules of Civil Procedure governs the removal or substitution of a Litigation Guardian. It provides:
Removal or Substitution of a Litigation Guardian
7.06 (1) Where, in the course of a proceeding,
(a) a minor for whom a litigation guardian has been acting reaches the age of majority, the minor or the litigation guardian may, on filing an affidavit stating that the minor has reached the age of majority, obtain from the registrar an order to continue (Form 7B) authorizing the minor to continue the proceeding without the litigation guardian;
(b) a party under any other disability for whom a litigation guardian has been acting ceases to be under disability, the party or the litigation guardian may move without notice for an order to continue the proceeding without the litigation guardian,
and the order shall be served forthwith on every other party and on the litigation guardian.
(2) Where it appears to the court that a litigation guardian is not acting in the best interests of the party under disability, the court may substitute the Children's Lawyer, the Public Guardian and Trustee or any other person as litigation guardian.
Applying the legal principles to the facts of this case
[60] The Defendants assert that neither the minor Plaintiffs nor their legal guardians know about the action or this motion. Mr. Dekoker has not seen or spoken to any of the minor Plaintiffs or their legal guardians in approximately four years.
[61] Mr. Dekoker began this action on behalf of the minor Plaintiffs, which may be regarded as a step necessary to protect their interests. There is no evidence before me that protecting the interests of the minor Plaintiffs required Mr. Dekoker to speak to them or their legal guardians. Indeed, not informing them may protect them from liability for costs.
[62] The Supreme Court of Canada, in Gronnerud (Litigation Guardians of) v. Gronnerud Estate, (2002), outlined criteria to be considered when determining whether a litigation guardian should be removed for failure to act in the best interests of a party under disability. The factors relevant here include that the proposed guardian should:
a) be qualified;
b) be prepared to act and is indifferent to the outcome;
c) provide some evidence to support the claim being made; and
d) obtain the consents of the next-of-kin or explain their absence.[^10]
[63] I find Mr. Dekoker to be qualified to act as litigation guardian for the following reasons:
(a) He is capable of providing instructions, and has done so.
(b) He is prepared to act, notwithstanding the personal exposure to costs that this may entail.
(c) He is not adverse in interest to the minor guardians within the meaning of Rule 7.02(2)(e) of the Rules of Civil Procedure, which requires that the litigation guardian's affidavit "states that he or she has no interest in the proceeding adverse to that of the person under disability". Rather, his interests are aligned with those of the minor plaintiffs.
(d) Mr. Dekoker is indifferent to the outcome as between the minor plaintiffs and the defendants, especially as the minor plaintiffs are no longer in his care. Mr. Dekoker will derive no benefit from an outcome favourable to them.
(e) Mr. Dekoker has provided evidence to support the minor Plaintiffs' claim and is the person best able to provide such evidence. The minor Plaintiffs were under the care of Ms. Dunlevy, who was their grandmother. Their relationship with Ms. Dunlevy was observed by Mr. Dekoker, and he is the person most qualified to provide evidence as to their relationships and as to the manner and extent to which her death deprived them of her care, guidance, and companionship, within the meaning of s. 61 of the Family Law Act.
(f) Mr. Dekoker has explained his failure to seek the consent of the next-of-kin, because they are estranged from the minor Plaintiffs. He did not require their consent, because the minor Plaintiffs were in his care for two years following Ms. Dunlevy's death, and when the action was commenced.
[64] Dallas Dunlevy permanently left Mr. Dekoker's home in 2013 to live with his father. On January 7, 2014, Mr. Dekoker gave written authority to Paul Harte Professional Corporation to act on behalf of Dallas Dunlevy in this action. On January 16, 2014, Mr. Dekoker swore an Affidavit of Litigation Guardianship to be appointed as litigation guardian for Dallas Dunlevy, without the knowledge of Dallas or his father.
[65] The Defendants assert that Mr. Dekoker is unable to provide records to substantiate the minor Plaintiffs' claims. They point to the absence of medical records, school records, Children's Aid records, or court records that might substantiate their current needs, or how they are coping with Mrs. Dunlevy's death, or whether they are currently receiving counselling. At the same time, they note that with a December 2018 pre-trial, a trial is likely not to occur until at least 2019, at which point, all the minor Plaintiffs will be well into their teenage years. It is not clear to this Court whether, at this stage of the proceeding, such evidence is required to protect the minor Plaintiffs' interests, or whether the obtaining of it would advance their interests.
[66] The Defendants assert that the Court will not have any current evidence as to the minor Plaintiffs' damages to either: (a) determine the quantum of the minor Plaintiffs' claims, should this matter proceed to trial and the Plaintiffs succeed; or (b) decide whether to approve a settlement on behalf of the minor Plaintiffs, pursuant to Rule 7.08(1), notwithstanding that the minor Plaintiffs and their guardians may well be capable of adducing such evidence. However, the Defendants note that a trial is not likely to occur until at least 2019, and they have not offered any evidence to support a conclusion that there is a settlement to be approved, or even an Offer to be considered.
[67] The Defendants rely on Dormer v. Thomas, (1999), where the B.C. Supreme Court appointed a Family Advocate to represent the interests of the two young children, ages 6 and 5.[^11] That decision was made in the face of an application by the paternal grandmother in England for access to the children, after their mother had removed them from England two years earlier to British Columbia where they resided with their mother and the maternal grandparents. The paternal grandmother supported the appointment of a Family Advocate who would prepare an access report. The mother opposed the appointment.
[68] The Court in Dormer v. Thomas rightly concluded that the children's mother could not be relied on to present all the information the court needed to make the decision that it faced at that time. This is not the case in the present action, where the Court's determination is in the future, and where Mr. Dekoker, whose interests are aligned with those of the minor Plaintiffs, is likely to obtain the necessary information and present it at the appropriate time.
CONCLUSION AND ORDER
[69] For the reasons stated above, it is ordered that:
The Defendants' motion for summary judgment is dismissed.
The Defendants' motion to remove or replace Mr. Dekoker as Litigation Guardian for the minor Plaintiffs is dismissed.
If the parties are unable to agree on costs, they may submit written argument, and Costs Outlines, by December 15, 2018.
Price J.
Released: November 28, 2018
COURT FILE NO.: CV-14-321-00
DATE: 2018-11-28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ESTATE OF JOANN DUNLEVY by her litigation administrator GLENN DEKOKER. GLENN DEKOKER, CHRISTOPHER DUNLEVY, a minor, by his litigation guardian GLENN DEKOKER, DALLAS DUNLEVY, a minor, by his litigation guardian GLENN DEKOKER and DARREN SCOTT, a minor, by his litigation guardian GLENN DEKOKER
Plaintiffs
– and –
MARK AMMAR HAWASS, JEFFREY DAVID HANDLER, KATHERINE CANCERAN, PATIENCE ATIBA and WILLIAM OSLER HEALTH CENTRE
Defendants
REASONS FOR ORDER
Price J.
Released: November 28, 2018
[^1]: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, at paras. 41-44. [^2]: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 [Hyrniak]. [^3]: Bruno Appliances and Furniture Inc. v. Hryniak, 2014 SCC 8, [2014] 1 S.C.R. 126. [^4]: Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 32. [^5]: Hryniak, at para. 49. [^6]: Hryniak, at para. 58. [^7]: Hryniak, at para. 66. [^8]: Hryniak, at para. 66. [^9]: Hamilton Kilty Hockey Club Inc. v. Ontario (Attorney General), [2003] 64 O.R. (3d) 328 (C.A.) at para. 20. [^10]: Gronnerud (Litigation Guardians of) v. Gronnerud Estate, 2002 SCC 38, [2002] 2 S.C.R. 417 at para. 19. [^11]: Dormer v. Thomas, [1999] B.C.J. No. 1463 (B.C.S.C.).