Court File and Parties

Court File No.: 18-12229 Date: 2019-03-19 Superior Court of Justice – Ontario

Re: The Canada Trust Company, Applicant And: The Humane Society of Canada for the Protection of Animals and the Environment and Office of the Public Guardian and Trustee, Respondents

Before: Mr Justice Ramsay

Counsel: Kristi Collins for Applicant Cynthia Spencer for Public Guardian Peter Woloshyn for the Governing Council of the Salvation Army, the Ontario Society for the Prevention of Cruelty to Animals and the Toronto Humane Society. Michael O’Sullivan, non-lawyer representative for the Humane Society of Canada for the Protection of Animals and the Environment

Heard: March 19, 2019 at Welland

Endorsement

[1] I decided two motions from the bench with reasons to follow. These are they.

Introduction

[2] The Applicant trust company is the executor of the will of Edith Lanzarotta, who made the will in 1996 and died on May 9, 2017. She left the residue of her estate in four equal shares to

a. the Governing Council of the Salvation Army of Canada;

b. the Ontario Society for the Prevention of Cruelty to Animals;

c. the Humane Society of Canada for the Protection of Animals and the Environment; and

d. the Toronto Humane Society.

[3] In the Application, the executor calls into question whether it would be in the public interest to execute the gift to the Humane Society for the Protection of Animals and the Environment (“the Society”) and seeks direction from the court. It wants to pay a quarter of the residue, $90,000, into court in satisfaction of its duty under the will.

Motion for leave to represent the corporate Respondent

[4] The Society moves for leave to be represented by Michael O’Sullivan who is not a lawyer. In support the Society has filed Mr O’Sullivan’s affidavit, in which he deposes that he is the chairman and CEO of the Society and of the Humane Society of Canada Foundation (“the Foundation”), which the Society claims is its “successor.” He says that the Society is a registered non-profit corporation and the Foundation is a registered charitable organization. Both are federal corporations without share capital. He has been given leave to represent these organizations in the past. He has been denied leave by a judge of the Court of Appeal: Darcy v. Humane Society of Canada, CA M43045, November 21, 2013. He also deposes that in his view a charity’s money should not be spent on lawyers.

[5] Under Rule 15.01 of the Rules of Civil Procedure, a corporation shall be represented by a lawyer except with leave of the court. The relevant considerations are set out in De La Rocha v. Markham Endoscopy Diagnostics Inc., 2010 ONSC 5100 and 1700285 Ontario Inc. v. Vass, 2016 ONSC 1322.

[6] Of particular relevance here is whether the proposed representative is reasonably capable of advocating on behalf of the corporation.

[7] Mr O’Sullivan’s conduct as non-lawyer representative of these corporations in other proceedings as well as his conduct so far in the present Application demonstrate that he is not capable of advocating on behalf of the corporation.

[8] In Gates v. The Humane Society of Canada for the Protection of Animals and the Environment, 2016 ONSC 5345 Mr O’Sullivan’s advocacy doubled the Society’s liability to the plaintiff by making unfounded allegations against opposing counsel and bringing frivolous requests for relief of various sorts.

[9] In Humane Society Canada Foundation v. Royal Bank of Canada Inc., Toronto file CV-16-553422, November 21, 2016, the Foundation, represented by Mr O’Sullivan, was suing the bank for honouring garnishments and then closing the Foundation’s account. The bank was given summary judgment. Akbarali J. awarded substantial costs against the Foundation taking into account its vexatious conduct and unfounded allegations of impropriety against others.

[10] Mr O’Sullivan has filed written materials on the merits of the present Application. First he attacks the corporate executor and the Public Guardian. These attacks are pointless because these parties have no interest. They just want the money to go where the court thinks it should go. Next he attacks the other residuary beneficiaries. This also is beside the point. The point is whether it is in the public interest to execute the gift to the Society in view of the serious deficiencies in its management that caused the Canada Revenue Agency to revoke its charitable status for income tax purposes, a decision which has been final since 2016 when the Supreme Court of Canada denied leave to appeal. It is not a competition among charities.

[11] O’Sullivan lacks the ability to represent the corporation. He does not understand the issues and how to present them to the Society’s benefit. He will only cost it and the other parties money by taking frivolous positions and pushing them endlessly. Furthermore he is the only witness for the Society. If he represents the Society he will have a double role which will cause confusion.

[12] For these reasons I denied the Society leave to be represented by Mr O’Sullivan and ordered the Society to file a notice of appointment of solicitor within 15 days, failing which it will no longer be entitled to participate in the Application.

The executor’s further participation

[13] The executor only wants to fulfil its duty, which it can do by paying the money into court. The parties who have a position on what to do with it can remain in the Application. This will save everyone money. The executor should have its actual costs of the Application, which I fix at $22,000. It may pay the rest of the gift in question, $68,000, into court.

Intervention by the Public Guardian and Trustee

[14] Only the Society has expressed any objection to the intervention of the Public Guardian and Trustee. The other charities and the executor have no objection. Objection to the participation of the Public Guardian is bound to fail. The Public Guardian has a long-established role in the exercise of the parens patriae function of the Crown. At the very least I would have had to make the Public Guardian amicus curiae because the court cannot decide the question without its help. The Public Guardian has the expertise and, in this case, has done the necessary investigation. I take the same view and the same approach that Fragomeni J. in Pathak v. Hindu Sabha, [2004] O.J. No. 1981. In the circumstances, the question cannot wait until the Society decides whether to appoint counsel or not. Someone has to have carriage of the Application and the Public Guardian is the only logical candidate.

[15] For these reasons I order as follows:

a. In satisfaction of its duties under paragraph 6 (c) of the will of Edith Lanzarotta dated February 15, 1996 the Applicant shall pay into court $68,000 which shall be held by the court until further order. Upon said payment into court, the Applicant need not appear further on this Application and no further costs shall be ordered to be paid to it or by it.

b. The Office of the Public Guardian and Trustee is added to this Application as a party. It shall have conduct of the Application.

c. The costs of the Office of the Public Guardian and Trustee, the Governing Council of the Salvation Army of Canada, the Ontario Society for the Prevention of Cruelty to Animals and the Toronto Humane Society are reserved to the judge who hears the Application.

d. The Humane Society of Canada for the Protection of Animals and the Environment is denied leave to be represented by a person who is not a lawyer. It shall file a notice of appointment of solicitor within 15 days, failing which it shall participate no further in this Application.

e. The Registrar shall issue and enter an order in the terms of this paragraph without the approval of the Humane Society of Canada for the Protection of Animals and the Environment.

J.A. Ramsay J. Date: 2019-03-19