Court File and Parties
COURT FILE NO.: 03-064/18 DATE: 20190409 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SHAHID MAHMOOD MIAN, in his personal capacity, in his capacity as Attorney for Personal Care for Mohammad Akram, and in his capacity as Attorney for Property for Mohammad Akram, TARIQ MAHMOOD MIAN, and SHABBIR AHMAD MIAN Applicants/Responding Parties
– and –
MOHAMMAD AKRAM, ALIAH AKRAM, in her personal capacity, in her capacity as named Attorney for Personal Care for Mohammad Akram, and in her capacity as named Attorney for Property for Mohammad Akram, SADIA AKRAM, in her personal capacity, in her capacity as named Attorney for Personal Care for Mohammad Akram, and in her capacity as named Attorney for Property for Mohammad Akram, NILAH FAUZIA SAEED, in her personal capacity, and in her capacity as named Attorney for Personal Care and as named Attorney for Property for Mohammad Akram and MUKHTAR AKRAM Respondents/Moving Party Mohammad Akram/Responding Parties
Counsel:
Shahzad Siddiqui, for the Applicants/Responding Parties, Shahid Mahmood Mian, Tariq Mahmood Mian and Shabbir Ahmad Mian Daniel Dochylo and Ziad Yehia, for The Bank of Nova Scotia Trust Company, as interim guardian of property for the Respondent/Moving Party Mohammad Akram Saha Cadili, for the Respondents/Responding Parties Sadia Akram, Nilah Fauzia Saeed and Mukhtar Akram Patrick Dimonte, for the Respondent/Responding Party Nilah Saeed Maria Salman, for the Public Guardian and Trustee
HEARD: January 23, 2019
Reasons for Judgment
DIETRICH J.
Overview
[1] Mohammad Akram is incapable of managing his property. His assets consist largely of residential and commercial properties and his net worth is estimated to be in excess of $10 million. He has a wife, three daughters and a number of sisters and brothers. Three of his brothers are involved in this litigation. His family members are at odds about how Mr. Akram’s property should be managed and by whom.
[2] Three legal proceedings have been commenced by members of Mr. Akram’s family regarding his property, including this application in which Mr. Akram’s brothers sought the appointment of The Bank of Nova Scotia Trust Company as interim guardian of Mr. Akram’s property. The application arose out of an action against these brothers brought by Mr. Akram’s wife and two of his daughters regarding the transfer of certain properties owned by Mr. Akram.
[3] On July 9, 2018, this court appointed The Bank of Nova Scotia Trust Company as interim guardian of Mr. Akram’s property pursuant to an Order Giving Directions.
[4] The Order Giving Directions also sets out the issues to be tried, articulates the rights and responsibilities of the interim guardian, and sets a timetable for the next steps in the litigation, including a mandatory mediation. The Order Giving Directions is silent on compensation for the interim guardian.
[5] Since the appointment of the interim guardian, Mr. Akram’s family members have continued to squabble amongst themselves about the management of Mr. Akram’s property and they have refused to co-operate with The Bank of Nova Scotia Trust Company and to provide it with important financial information regarding property owned by Mr. Akram directly and through corporations. The Bank of Nova Scotia Trust Company has nonetheless done its best to prepare a management plan. The terms of the proposed management plan and the draft order implementing the management plan are highly contentious among the parties. The family members have refused to approve the plan and the draft order.
[6] In the face of this lack of co-operation and support by Mr. Akram’s family, and at the risk of incurring liability arising out of the management of Mr. Akram’s properties, The Bank of Nova Scotia Trust Company brings this motion. It seeks its removal as interim guardian and certain ancillary orders, including the appointment of the Public Guardian and Trustee (the “PGT”) in its place as guardian of Mr. Akram’s property. None of the parties opposes the resignation and removal of The Bank of Nova Scotia Trust Company as interim guardian.
Issues
[7] The issues in this matter are as follows:
- Should The Bank of Nova Scotia Trust Company be permitted to resign or be removed as the interim guardian of Mr. Akram’s property and the PGT appointed in its place?
- Is The Bank of Nova Scotia Trust Company entitled to compensation for acting as interim guardian of Mr. Akram’s property and to indemnification for expenses, including legal fees, incurred by it in the management of Mr. Akram’s property?
Factual Background
[8] Mr. Akram is 78 years of age. He lives with his wife Mukhtar Akram in their family home in King City, Ontario.
[9] Mr. and Mrs. Akram’s three daughters are Aliah Akram (“Aliah”), Sadia Akram (“Sadia”) and Nilah Fauzia Saeed (“Nilah”). Nilah and her husband and their four children live with Mr. and Mrs. Akram in the family home.
[10] Mr. Akram’s brothers, Shahid Mahmood Mian (“Shahid”), Tariq Mahmood (“Tariq”) and Shabbir Ahmed Mian (“Shabbir”) (“Mr. Akram’s brothers”) are involved in the management of his property.
[11] Mr. Akram’s capacity to manage his property has been in issue since December of 2012 and possibly earlier. In a “Certificate of Illness”, dated January 6, 2015, Dr. Mohamed A. Salyani states that Mr. Akram “has been suffering from dementia since 2012 and that he has had a rapid and significant deterioration in his memory and cognition over the past two years.”
[12] Following The Bank of Nova Scotia Trust Company’s appointment as interim guardian in July 2018, Mr. Akram underwent a capacity assessment. He was assessed as incapable as to both property and personal care by capacity assessor Alanna Kaye, RN, BSc, MSc.
[13] Mr. Akram made a will on May 9, 2005 in which he named his three daughters as his executrices and trustees and left his estate to them equally. He named his brother Shahid as his alternative executor and trustee. He made no provision for Mrs. Akram in his will.
[14] At the same time, Mr. Akram executed a Power of Attorney for Property and a Power of Attorney for Personal Care. He appointed his three daughters as his Attorneys for Property, jointly, and as his Attorneys for Personal Care, jointly. Mr. Akram appointed Shahid as his alternative Attorney for Property and his alternative Attorney for Personal Care in the event that his daughters were unable or unwilling to act. Nilah was involved in the preparation of these Powers of Attorney and Mrs. Akram, Aliah and Sadia question their validity.
[15] The Bank of Nova Scotia Trust Company has only been able to obtain limited information with respect to Mr. Akram’s property and much of that information has been included in its proposed management plan. Based on information gathered by The Bank of Nova Scotia Trust Company, including title searches, the commercial real properties in which Mr. Akram has an interest include: i) a rooming house divided into rental units (at 155 Springhurst Avenue, Toronto); ii) a hotel with billboard (at 14 Roncesvalles Avenue, Toronto) owned through 1118084 Ontario Limited; iii) a banquet hall (at 12700 Jane St., King City) owned through Ikra Holdings Ltd.; iv) farm land (at 8961 Highway 89, Simcoe, Ontario) owned through 2137133 Ontario Limited; and v) a farmhouse (at 9137 Highway 89, at rural route 1 Simcoe, Ontario) owned through 2199840 Ontario Limited (the “Properties”).
[16] In December 2017 title to each of the Properties was transferred from Mr. Akram’s name, personally, or from a corporation in which he had some degree of ownership, to a newly formed corporation, 2611830 Ontario Limited (“New Co.”). It appears that the transfers were made by Mr. Akram’s brothers pursuant to a Memorandum of Agreement entered into by Mr. Akram’s brothers, Mrs. Akram, Nilah, Aliah and Sadia. Mrs. Akram, Aliah and Sadia allege that the transfers were made in breach of the terms of the Memorandum of Agreement and they dispute the validity of the Memorandum of Agreement. Mr. Akram’s family members have provided inconsistent answers, or have refused to provide any answer with regard to the ownership of the Properties as well as the ownership of the shares of New Co and the companies that held the Properties prior to the transfers to New Co.
[17] Mr. Akram also owns the family home in King City, Ontario, jointly with his wife, and he owns vacant land at 4600 Highway 9, King City, Ontario, jointly with Aliah.
[18] Mr. Akram owned properties at 1080 1/2 Queen St. West, 1082 1/2 Queen St. West, and 1086 1/2 Queen St. West, in the City of Toronto, which were conveyed, in or around September 2016, one each, to his daughters. His daughters effected these transfers using the Power of Attorney for Property he granted them.
[19] The proposed management plan sets out known liabilities of $275,000 and various unknown liabilities including potentially substantial income taxes as a consequence of the transfer of the Properties. According to The Bank of Nova Scotia Trust Company, the liabilities of Mr. Akram and of the companies from which the Properties were transferred to New Co. outweigh Mr. Akram’s liquid assets.
[20] The Order Giving Directions permits the interim guardian to assume custody and management of Mr. Akram’s assets. It has all the authority of a guardian under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 and it is responsible to collect all rental income and pay all carrying costs as well as prescribed amounts of support for Mr. Akram and Mrs. Akram.
[21] In the opinion of The Bank of Nova Scotia Trust Company, some of the Properties are in a serious state of disrepair and expose Mr. Akram to liabilities.
[22] Although The Bank of Nova Scotia Trust Company anticipated that the proposed management plan would be approved at an October 30, 2018 scheduling appointment, this was not to be. Shahid opposed the management plan insofar as The Bank of Nova Scotia Trust Company remained involved. Counsel for Tariq and Shabbir did not have consistent instructions from his clients. Mrs. Akram, Aliah and Sadia, on one hand, and Shahid, on the other, would not agree to the other’s proposed changes to the draft order. Nilah and her husband did not agree with any part of the management plan and wished to limit The Bank of Nova Scotia Trust Company’s role to collecting rent and paying expenses.
[23] At the next scheduling appointment, on November 20, 2018, no progress was made. Shahid blocked attempts to move the matter forward and after four hours of debate on procedural terms, Shahid fired his counsel. No agreement was reached. Nilah’s counsel threatened to appeal any order approving the management plan.
Positions of the Parties
The Bank of Nova Scotia Trust Company
[24] Given the nature of the discussions and conduct of the parties at the October 30, 2018 scheduling appointment and subsequently, The Bank of Nova Scotia Trust Company submits that its continued involvement will only meet with steady resistance to or interference with its efforts to: i) obtain necessary information respecting Mr. Akram’s assets and liabilities; ii) determine the shareholders of the companies from which the Properties were transferred and of New Co; iii) effectively manage the Properties; and iv) take the necessary steps to create liquidity.
[25] The Bank of Nova Scotia Trust Company further submits that after months of work, critical information regarding Mr. Akram’s assets and liabilities is still missing. It believes that such information is available but is being deliberately withheld by Mr. Akram’s family members and consultation with them has proved impossible. In its view, The Bank of Nova Scotia Trust Company’s appointment as guardian has engendered disagreement and discord among Mr. Akram’s immediate family and it asserts that this cannot be in Mr. Akram’s best interests.
[26] The Bank of Nova Scotia Trust Company is concerned that the farmhouse and rooming house, which are rented to tenants, are hazardous and that there is evidence of drug activity at the rooming house. The latter activity presents a reputational risk to The Bank of Nova Scotia Trust Company.
[27] The Bank of Nova Scotia Trust Company submits that Mr. Akram’s estate has very little liquidity and that any guardian would need to have control over the assets in order to create the liquidity required to pay Mr. Akram’s liabilities and meet his obligations.
[28] The Bank of Nova Scotia Trust Company further submits that it is unwilling and unable to continue as guardian of Mr. Akram’s property. It submits that the likelihood of another corporate trustee taking on the guardianship is remote. Further, because of the litigation among the family members, in its view, none of them could realistically act as guardian. It submits that the appointment of the PGT is the only suitable alternative.
[29] The Bank of Nova Scotia Trust Company asserts that even if the PGT does not consent to the appointment, the court could exercise its parens patriae jurisdiction and appoint the PGT in the place of The Bank of Nova Scotia Trust Company.
[30] The Bank of Nova Scotia Trust Company seeks compensation for its work for the period July 9, 2018 to January 7, 2019 to be paid from Mr. Akram’s assets. It calculates the compensation sought using the rates set out in the regulations to the Substitute Decisions Act, 1992, and arrives at a total of $46,575.15 plus HST. Alternatively, it proposes compensation of $36,942.68 plus HST, which does not include a care and management fee (of $34,132) but does include $24,500, based on quantum meruit.
[31] The Bank of Nova Scotia Trust Company also seeks approval to pay the legal fees incurred in retaining Borden Ladner Gervais, in the amount of $70,829.28, and Minden Gross, in the amount of $5,674.86 and indemnification of the amounts paid.
[32] The Bank of Nova Scotia also seeks an order permitting it to list for sale and sell certain of Mr. Akram’s properties.
The Public Guardian and Trustee
[33] The PGT is not a party to the proceedings but was served and represented by counsel on this motion. The PGT does not consent to being appointed as the guardian of Mr. Akram’s property and asserts that, without his consent, the PGT cannot be appointed.
[34] The PGT submits that, based on the evidence, at least two parties in the litigation, being Mrs. Akram and Shahid, have indicated a willingness to manage Mr. Akram’s property. Counsel for Mrs. Akram has advised the court of Mrs. Akram’s intention to apply to be Mr. Akram’s guardian and Shahid proposes that he be permitted to manage Mr. Akram’s property in reliance on the Power of Attorney for Property given to him (as an alternative Attorney for Property to Nilah, Aliah and Sadia).
[35] The PGT asserts that members of Mr. Akram’s family may be suitable to act with or without restricted powers. The PGT also notes that The Bank of Nova Scotia Trust Company has not provided any evidence to support its assertion that it is unlikely that any other trust company would be prepared to be appointed as guardian of Mr. Akram’s property or any evidence that another trust company has been asked to do so and has refused.
[36] The PGT also submits that the parens patriae doctrine does not permit the court to appoint the PGT without his consent and that the Substitute Decisions Act, 1992 provides a complete code in this regard.
[37] With respect to The Bank of Nova Scotia Trust Company’s request to have its accounts approved and to be paid compensation for the period July 9, 2018 to January 7, 2019, the PGT submits that The Bank of Nova Scotia Trust Company should bring a separate application to seek judicial approval of its administration for this period and to seek compensation as part of that application. The PGT submits that a litigation guardian will need to be appointed to represent Mr. Akram with respect to the passing of accounts.
Mukhtar Akram, Aliah Akram and Sadia Akram
[38] Mrs. Akram, Aliah and Sadia do not oppose the resignation and removal of The Bank of Nova Scotia Trust Company. They submit that The Bank of Nova Scotia Trust Company sought the appointment, at the specific request of Mr. Akram’s brothers, and is now seeking to be removed because the very same brothers failed to co-operate with The Bank of Nova Scotia Trust Company in its role as interim guardian and impeded its ability to do its job. Accordingly, they assert that the costs of The Bank of Nova Scotia Trust Company should be borne by Mr. Akram’s brothers. They further submit that Mr. Akram’s brothers should be responsible for the costs of Mrs. Akram, Aliah and Sadia.
[39] Mrs. Akram, Aliah and Sadia do not oppose an interim appointment of the PGT. In the meantime, they submit, Mrs. Akram will apply to be appointed the guardian of Mr. Akram’s property.
[40] Aliah and Sadia submit that the Powers of Attorney signed by Mr. Akram on May 9, 2005 may not be valid because they were prepared by Nilah, whose decision it was to add Shahid as an alternative Attorney for Property and for Personal Care, and not their father’s. They also allege that the Powers of Attorney were not properly executed. They oppose the use of the Power of Attorney for Property by Shahid as an alternative Attorney for Property to Mr. Akram’s daughters.
[41] Mrs. Akram, Aliah and Sadia are in favour of proceeding with the mandatory mediation on the terms set out in the Order Giving Directions as soon as possible, failing which, they submit that the matter should be set down for trial.
Shahid Mian, Tariq Mian and Shabbir Mian
[42] Shahid, Tariq and Shabbir agree that The Bank of Nova Scotia Trust Company should be removed.
[43] They agree that if the PGT does not consent to his appointment as guardian of property, the court cannot appoint the PGT. They also agree that the parens patriae principle does not apply and that the governing legislation is the Substitute Decision Act, 1992.
[44] Mr. Akram’s brothers submit that Shahid should use the Power of Attorney for Property to manage Mr. Akram’s property in the interim, in the place of The Bank of Nova Scotia Trust Company. Shahid submits that Mr. Akram appointed him as an alternative Attorney for Property and for Personal Care and as an executor and trustee of his estate because he trusted him alone.
[45] Shahid further submits that Mr. Akram’s property is valuable but not difficult to administer. In light of this submission, he submits that The Bank of Nova Scotia Trust Company’s fees are “outrageous.” Mr. Akram’s brothers submit that the determination of costs on this motion is premature and should be reserved to the trial judge.
Nilah Fauzia Saeed
[46] Nilah is in favour of the removal of The Bank of Nova Scotia Trust Company as interim guardian and is opposed to any financial institution being appointed in its place. Nilah opposes the appointment of the PGT on the basis that his fees would be too expensive.
[47] Nilah also opposes the appointment of her mother as the guardian of the property and personal care of Mr. Akram because, in her view, Mrs. Akram is not competent to take on these roles.
[48] Nilah submits that there is no need for the PGT to be appointed in the place of The Bank of Nova Scotia Trust Company because there is a “good and valid” Power of Attorney appointing Mr. Akram’s three daughters as Attorneys for Property, and failing them, his brother Shahid. She further submits that if Mr. Akram’s daughters cannot act under the Power of Attorney for Property then Shahid should be appointed as interim guardian of property until The Bank of Nova Scotia Trust Company is removed or another guardian is appointed by the court.
[49] Alternatively, Nilah submits that a manager could continue to manage Mr. Akram’s property until the mandatory mediation has taken place.
[50] Nilah submits that The Bank of Nova Scotia Trust Company should be ordered to pass its accounts and that any compensation awarded to it should be payable out of Mr. Akram’s property.
[51] She submits that the Order Giving Directions should be implemented including an immediate mandatory mediation.
Issue 1: Should The Bank of Nova Scotia Trust Company be permitted to resign or be removed as the interim guardian of Mr. Akram’s property and the PGT appointed in its place?
[52] Section 27 of the Substitute Decisions Act, 1992 permits the court to vary an order appointing a guardian of property under section 22, or substitute another person as guardian, on a motion in the proceeding in which the guardian was appointed, and such a motion may be made by the guardian. The Bank of Nova Scotia Trust Company relies on this section to bring its motion to be removed as interim guardian and to seek the appointment of the PGT in its place.
[53] Section 24(2.1) of the Substitute Decisions Act, 1992 states that the court shall not appoint the PGT as guardian of property unless: a) the application proposes the PGT as guardian; b) the application is accompanied by the PGT’s written consent to the appointment; and c) there is no suitable person who is available and willing to be appointed.
[54] I accept the submissions by the PGT and others that, in this case, the court may not appoint the PGT as guardian because: i) no application seeking this appointment is before the court, and ii) the PGT has not provided his written consent to any such appointment. The PGT has specifically declined to consent to the appointment. See Manotek v. Mann, 2016 ONSC 2837, at para. 25, where Justice Trimble found that the lack of PGT consent to the appointment was fatal to the motion.
[55] In addition, in this case, there is at least one other person, Mrs. Akram, who is available and willing to be appointed. She has indicated her intention to make an application to be appointed as the guardian of Mr. Akram’s property and personal care. Mr. Akram’s brother Shahid has also indicated his willingness to manage Mr. Akram’s property, using the existing Power of Attorney for Property.
[56] The Bank of Nova Scotia Trust Company submits that even if the PGT does not consent to the appointment, the court could rely on its parens patriae jurisdiction, which is “founded on necessity, namely the need to act for the protection of those who cannot care for themselves”: Dovigi v. Razi, 2012 ONCA 36, [2012] O.J. No. 2418, at para. 21, quoting the Supreme Court of Canada in E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388, at para. 426. The Bank of Nova Scotia Trust Company argues that Mr. Akram’s property is at risk. Some of his properties have been transferred by his daughters to themselves. Others of his properties have been transferred by his brothers to a corporation in respect of which the share ownership has not been disclosed.
[57] The PGT does not dispute that the court has the authority to engage the PGT in a case where there is loss of an incapable person’s property. However, the PGT submits that the court’s parens patriae jurisdiction is not engaged under the circumstances of this case. I agree with the PGT that this authority does not arise out of the parens patriae jurisdiction, but, rather, out of s. 27 of the Substitute Decisions Act, 1992, which contains a complete code to govern this situation.
[58] According to s. 27(2) of the Act, the PGT shall investigate any allegation that a person is incapable of managing property and that serious adverse effects are occurring or may occur as a result. For this purpose, s. 27(1) provides that loss of a significant part of a person’s property, or a person’s failure to provide necessities of life for himself or herself or for dependents, are serious adverse effects. Subsection 27(3.1) provides that if, as a result of the investigation, the PGT has reasonable grounds to believe that a person is incapable of managing property and that the prompt appointment of a temporary guardian of property is required to prevent serious adverse effects, the PGT shall apply to the court for an order appointing him or her as temporary guardian of property.
[59] At this stage in the proceedings, there is no formal allegation that Mr. Akram is incapable of managing property and that serious adverse effects are occurring or may occur as a result. No investigation has been sought or ordered.
[60] Accordingly, I find that I have no authority to appoint the PGT to act as guardian of Mr. Akram’s property, absent his consent. Further, as noted, there may be persons, including members of Mr. Akram’s immediate family, who are available and willing to take on this role.
[61] Mr. Akram’s family members have had the opportunity to agree on an alternative guardian and they have failed to do so. The Order Giving Directions requires them to attend a mandatory mediation within ninety days of the Order (i.e., 90 days from July 9, 2018), or as otherwise may be agreed by counsel in writing. They have not done so. No mediation has taken place, though a number of the parties have indicated a desire to move forward with the mediation. Instead, they have chosen to quarrel among themselves and prevent The Bank of Nova Scotia Trust Company from gaining essential information it requires to prepare a proper management plan and to carry out its fiduciary duties in accordance with a court-approved plan.
[62] Because the parties have been ineffective in moving the substantive issues in this matter forward, I find it is necessary to vary the Order Giving Directions to create additional organizational structure so that a guardian of Mr. Akram’s property may be appointed at the earliest opportunity. A management plan must also be put in place so that Mr. Akram’s property may be managed in his best interests. Immediate steps must be taken to properly ascertain, preserve and protect Mr. Akram’s property and to determine and discharge his liabilities.
[63] Until a guardian of his property is appointed, Mr. Akram’s property must be properly managed. Given the conflict among the family members, I find that The Bank of Nova Scotia Trust Company is best positioned to continue to manage Mr. Akram’s property on an interim basis. The Order Giving Directions shall be varied, as described below, to provide additional direction to The Bank of Nova Scotia Trust Company and the parties and to impose a timetable for advancing the appointment of a guardian of Mr. Akram’s property.
Issue 2: Is The Bank of Nova Scotia Trust Company entitled to compensation for acting as interim guardian of Mr. Akram’s property and to indemnification for expenses, including legal fees, incurred by it in the management of Mr. Akram’s property?
[64] As noted, the Order Giving Directions is silent on compensation for The Bank of Nova Scotia Trust Company as interim guardian. On its motion, The Bank of Nova Scotia Trust Company asks the court to approve its accounts for the period July 9, 2018 to January 7, 2019, including its request for compensation, and to approve its indemnification for legal fees paid or to be paid in respect of the guardianship of Mr. Akram’s property.
[65] The Bank of Nova Scotia Trust Company acknowledges that this is a unique request in light of the fact that there is no court-approved management plan for Mr. Akram’s property. However, the lack of a management plan arises through no fault or lack of effort by The Bank of Nova Scotia Trust Company. On the evidence, The Bank of Nova Scotia Trust Company’s skepticism on the prospect of the Akram family members ever agreeing on a management plan is well placed.
[66] In the meantime, The Bank of Nova Scotia Trust Company is providing Mr. Akram and his estate with a valuable service. Based on the evidence, since its appointment, it has complied with the Order Giving Directions and taken appropriate steps in its guardianship by arranging for a capacity assessment for Mr. Akram, obtaining property valuations, identifying tax issues and questionable transfers of property, and carrying out its duties as Mr. Akram’s interim guardian of property.
[67] In addition, The Bank of Nova Scotia Trust Company has retained agents to provide legal advice. Although The Bank of Nova Scotia Trust Company has authority to pay its agents, it has refrained from doing so pending court approval.
[68] The family members do agree on one thing, and that is that The Bank of Nova Scotia Trust Company should not be entitled to compensation without bringing an application to pass its accounts in accordance with the Rules of Civil Procedure. The PGT agrees and quite correctly points out that a litigation guardian would need to be appointed for Mr. Akram so that he may participate in the passing of accounts.
[69] I agree that it is appropriate for The Bank of Nova Scotia Trust Company to bring an application to pass its accounts relating to its interim guardianship in accordance with the Rules of Civil Procedure. Its request for compensation would be reviewed as part of that passing of accounts. Similarly, indemnification in respect of legal fees and other expenses incurred by it in carrying out its duties as guardian could be addressed on the passing of accounts.
[70] The appointment of a litigation guardian to represent Mr. Akram on the passing of accounts is not a straightforward exercise. The interim guardian is disqualified from acting because the proceeding involves its management of Mr. Akram’s property. Mr. Akram’s brothers, Aliah, Sadia and Nilah are alleged to have participated in transactions relating to Mr. Akram’s property that are the subject of litigation and may not have been undertaken in Mr. Akram’s best interests. Mrs. Akram would be in a potential conflict of interest in representing Mr. Akram on the passing of accounts as she is financially dependent on him and receives support payments from the interim guardian. Aliah, Sadia, Nilah have been named as Attorneys for Property for Mr. Akram and Shahid has been named as an alternative Attorney for Property for Mr. Akram, but the validity of the Power of Attorney for Property pursuant to which they are appointed is being challenged.
[71] Rule 7.04(1) of the Rules of Civil Procedure provides that:“[u]nless there is some other proper person willing and able to act as litigation guardian for a party under a disability, the court shall appoint, … (b) the Public Guardian and Trustee, if the party is mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding and there is no guardian or attorney under a power of attorney with authority to act as litigation guardian.” On the evidence before the court, I find that there is no other “proper person” able to act as litigation guardian for Mr. Akram, and therefore the PGT must be appointed to represent Mr. Akram in the passing of accounts proceeding.
[72] I also find that it is not reasonable to expect The Bank of Nova Scotia Trust Company to continue its work as interim guardian without remuneration. Under the circumstances of this case, in recognition of its efforts and services, The Bank of Nova Scotia Trust Company should be permitted to pre-take compensation, as hereinafter provided, in advance of passing its accounts.
[73] Similarly, The Bank of Nova Scotia Trust Company should be permitted to pay its agents and to be indemnified from Mr. Akram’s property for the amounts paid to its agents. A guardian for property is entitled to recover its reasonable out-of-pocket expenses incurred in the discharge of its duties. Accordingly, the interim guardian may pay its agents in advance of passing its accounts, and indemnify itself from cash on hand, as hereinafter provided. On the evidence, it appears that as of the end of January, 2019, the interim guardian was expecting to have $90,000 of cash on hand forming part of Mr. Akram’s property. The interim guardian will need to exercise its discretion in paying its agents, and indemnifying itself, in whole or in part, from time to time, depending on the whether there is sufficient cash on hand to do so.
Disposition
[74] The Bank of Nova Scotia Trust Company shall continue to act as interim guardian of Mr. Akram’s property in accordance with the Order Giving Directions until another guardian is appointed by the court.
[75] The Order Giving Directions, of Justice H.J. Wilton-Siegel, dated the 9th day of July, 2018, shall be and is varied as follows:
Paragraph 9A of the Order Giving Directions is varied to add the following paragraph (f):
“(f) The Bank of Nova Scotia Trust Company may, at any time, and from time to time, on notice to the parties, apply to the court for approval to sell one or more of Mr. Akram’s properties so that it may pay Mr. Akram’s debts and discharge his financial obligations.”
Paragraph 11 of the Order Giving Directions is varied to add the following paragraph (e):
“(e) Any party wishing to apply to be appointed Mr. Akram’s guardian of property or guardian of personal care, or both, shall serve and file his or her application not later than May 30, 2019. The hearings of any such application shall take place, if required, at the same time or immediately following the hearings of the within Application (and the Action), which are consolidated as hereinbefore provided.”
Subparagraph 11(d) (ii) of the Order Giving Directions is varied to read as follows:
“(ii) hearing of the remaining issues in dispute on a date or dates to be scheduled by the Registrar following completion of examinations, which hearing date or dates shall occur not later than September 30, 2019 (or the next available hearing date(s) after September 30, 2019 as provided by the Registrar if there are no hearing dates available prior to September 30, 2019).”
Paragraph 12(b) of the Order Giving Directions is varied to read as follows:
“(b) the mediation shall take place on a date not later than June 30, 2019.”
[76] The Bank of Nova Scotia Trust Company shall apply to pass its accounts in respect of its interim guardianship of Mr. Akram’s property for the period July 9, 2018 to the date of this order within ninety (90) days from the date hereof. The accounts may be presented informally provided that all income and capital receipts and disbursements, and investments, are clearly shown.
[77] The PGT is hereby appointed to act as the litigation guardian for Mr. Akram on the passing of accounts.
[78] The Bank of Nova Scotia Trust Company shall be permitted to pre-take compensation in the amount of $25,000 in advance of passing its accounts in respect of its interim guardianship. Such payment shall be made from the income of Mr. Akram’s property as determined by The Bank of Nova Scotia Trust Company in its absolute discretion, provided there is sufficient cash on hand at the time of payment to make such payment without compromising the interim guardian’s ability to make the payments relating to Mr. Akram’s personal care expenses and his support of Mrs. Akram in accordance with the Order Giving Directions. This payment of compensation shall be made without prejudice to any objection Mr. Akram may make to such compensation on the passing of accounts.
[79] The Bank of Nova Scotia Trust Company shall be permitted to pay its agent Borden Ladner Gervais for legal fees incurred in the management of Mr. Akram’s property of $70,829.28, and its agent Miller Thompson for legal fees incurred in the management of Mr. Akram’s property of $5,674.86; and it shall be permitted indemnify itself for such payments. Such indemnification may be made from the income earned on Mr. Akram’s property, as determined by The Bank of Nova Scotia Trust Company in its absolute discretion, provided there is sufficient cash on hand at the time of indemnification to indemnify itself without compromising the interim guardian’s ability to make the payments relating to Mr. Akram’s personal care expenses and his support of Mrs. Akram in accordance with the Order Giving Directions. Such payments to the interim guardian’s agents and indemnification shall be without prejudice to any objection Mr. Akram may make to such payments or indemnification on the passing of accounts.
[80] The costs of this motion are reserved to the judge hearing the final adjudication of this matter, or as the court may further order.
Dietrich J.
Released: April 9, 2019