COURT FILE NO.: 27454/17
DATE: 2019-04-04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TERRY SHEWFELT SR. and TERRY SHEWFELT JR. Applicants
– and –
BRADLEY SHEWFELT Respondent
Counsel:
Christian C. Provenzano, Counsel for the Applicants
Paul Cassan, Office of the Public Guardian & Trustee, Counsel for Gary Shewfelt
Robert MacRae, Counsel for the Respondent
HEARD: March 21, 2019
REASONS ON APPLICATION
VARPIO J.
[1] Mr. Gary Shewfelt ("Gary") is a 73-year-old man suffering from Alzheimer's who cannot look after himself. He has been residing in hospital since October 2014. Gary has a twin brother, Mr. Terry Shewfelt Sr. ("Terry Sr.") and another brother, Mr. Bradley Shewfelt ("Brad"). Terry Sr. has a son, Mr. Terry Shewfelt Jr. ("Terry Jr.").
[2] Gary was a farmer and he lived in a house/farm in Echo Bay, Ontario. Terry Sr. deposed that, in or around 1998 or 1999, Gary made a will and power of attorney. I have not seen a copy of this will.
[3] It is conceded by all that, on September 2, 2011, Brad drove Gary from his home in Echo Bay into Sault Ste. Marie where he sought legal counsel and changed his will. Pursuant to this new will, Brad is to receive substantial benefit from Gary's estate whereas Terry Sr. deposed that Brad was not previously to receive such interest. Accordingly, Terry Sr. and Terry Jr. brought an application to have the September 2011 will set aside.
[4] The application has been converted into an action with Terry Sr. and Terry Jr. named as plaintiffs. The parties agree that Gary should be named as a plaintiff and the Office of the Public Guardian and Trustee has appointed counsel for Gary.
[5] The issue before me is who should be Gary's litigation guardian under Rule 7 of the Rules of Civil Procedure. Terry Jr. seeks to be the litigation guardian and indicates that he will abandon his claim in the action if so appointed. Brad opposes this appointment insofar as he states that Terry Jr. is in a conflict of interest.
[6] Rule 7(2)(g) of the Rules states:
(2) No person except the Children's Lawyer or the Public Guardian and Trustee shall act as litigation guardian for a plaintiff or applicant who is under disability until the person has filed an affidavit in which the person,
(g) states that he or she has no interest in the proceeding adverse to that of the person under disability… O. Reg. 14/04, s. 7; O. Reg. 193/15, s. 1.
[7] Brad submits that Terry Jr. would have a conflict insofar as his father stands to benefit from the setting aside of Gary's will. Specifically, if Gary has no 1998 will, he will be intestate and Terry Sr.'s interest in Gary's estate will increase in value. Further, Gary's lawyer will by necessity deal with Gary's legal files which could contain information that ought not be revealed to Terry Sr. Terry Jr. would, as Terry Sr.'s son, be placed in a potentially difficult situation whereby Terry Jr. could have to give instructions to Gary's counsel that are contrary to Terry Sr.'s interests.
[8] Complicating matters is the fact that Gary's counsel advises that there are apparently no other relatives and/or friends who could act as litigation guardian. Gary's counsel also advises that the value of the estate (although not yet calculated) looks to be such that the appointment of a financial institution as litigation guardian could easily become financially detrimental insofar as the legal and financial fees associated with even moderate court activity could materially affect the value of the estate.
[9] Gary's counsel took no position in this matter save and except to state that, as counsel, he would have a legal duty to ensure that no action undertaken by Gary's litigation guardian ran afoul of Gary's best interests. While I take some considerable comfort in this representation, I also note that Gary's physical condition and the fact that Gary is running a monthly surplus (i.e. his income from a variety of sources exceeds his expenses) is such that nothing that will happen in the litigation is likely to adversely affect Gary's immediate or long-term interests. He will presumably continue to live in hospital for the remainder of his life and his income will exceed his expenses.
[10] Underlying this motion is not the concern that the litigation guardian's actions will prejudice Gary's position, it is instead that Terry Jr. will use Gary's position in the litigation to undermine Brad. Upon reflection, this is a valid concern insofar as, while Gary's counsel is imbued with ethical duties to ensure that the proper documentation is sent to all the concerned parties at the appropriate times, Terry Jr. could instruct Mr. Cassan to undertake actions that are not contrary to Gary's interests, but could unfairly prejudice Brad[^1]. Faced with such a situation, Mr. Cassan would have no choice but to follow Terry Jr.'s instructions. This situation could easily generate concerns regarding a conflict of interest.
[11] Therefore, Terry Jr. is not an appropriate litigation guardian for Gary nor are, obviously, Gary or Terry Sr.
[12] Counsel will submit cost submissions of no more than two pages to me within 15 days of the release of this decision.
Varpio J.
Released: April 4, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TERRY SHEWFELT SR. and TERRY SHEWFELT JR.
- and –
BRADLEY SHEWFELT
REASONS ON APPLICATION
Varpio J.
Released: April 4, 2019
[^1]: This is not a reflection on Mr. Cassan. Mr. Cassan would, undoubtedly, undertake his ethical obligations with both integrity and aplomb.