Court File and Parties

COURT FILE NO.: 3483/14 DATE: 2019-04-26 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ROBERT CAREY, LYDIA CAREY-PATEL, DAVID AELLO Applicants – and – DOUGLAS CAREY, ARTHUR CAREY, JENNIE CAREY and THE OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE Respondents

COUNSEL: Richard K. Watson, for the Applicants Matthew R. Harris and Yonatan Lipetz for the Respondents, Douglas Carey and Arthur Carey Michael Freeman for the Respondent, Jennie Carey

HEARD: March 8, 9, May 17, 18, June 8, November 16, 2018, January 28 and 29, March 28 and 29 and April 17, 2019

FINAL REASONS FOR JUDGMENT

KURZ J.

Introduction

[1] The background to this matter is set out in my interim decision of July 26, 2018, reported at 2018 ONSC 4564. In short, the Applicants moved to remove Douglas Carey (“Douglas”) and Arthur Carey (“Arthur”) as attorneys for personal care and property of Jennie Carey (“Jennie”) under powers of attorney. They sought to have Robert Carey named Jennie’s sole guardian. Each of the parties, save David Aello, is an adult child of Jennie. David Aello is Jennie’s brother. Three of Jennie’s other adult children, Edward Carey (“Edward”), David Carey and Lynn Carey were also applicants in this proceeding, who were removed as parties at their request at the commencement of this trial.

[2] Jennie is 91 years old and suffering from dementia. There is no question that Jennie is unable to make decisions about her personal care or property.

[3] In my interim decision I made a number of findings that continue to apply. I found that:

a. Jennie resides in the homes of Arthur, in Toronto and Douglas, in Nobelton. Arthur is Jennie’s primary caregiver. b. There is strong and compelling evidence of misconduct and/or neglect by Jennie’s attorney for property, Arthur (who had worked in concert with Douglas, his alternate). c. At the very least, Jennie’s attorneys for property showed little skill in using her funds in a responsible manner to secure her financial best interests. She has no financial margin of error should she require an unexpected expenditure for her medical care and well-being. d. Jennie’s interests were not being served by her power of attorney for property. e. Arthur and Douglas had failed in their duties as Jennie’s attorneys for personal care to foster regular contact between Jennie and the original applicants, and now the applicants. Had they done so, this proceeding may not have been necessary. f. However, the weight of independent evidence supports a finding that Jennie is being properly cared for in a physical sense by Arthur and Douglas. g. Further, Jennie is happy where she is. She has expressed no desire to move. h. There has been sufficient misconduct to remove Arthur and Douglas as Jennie’s attorneys for both personal care and property. i. However my concerns regarding Jennie’s personal care had been ameliorated by Arthur’s compliance with two interim orders for visits between the original applicants and Jennie.

[4] As a result of these findings, I made an interlocutory order that:

a. Robert and Arthur shall be appointed Jennie’s co-guardian’s for personal care; b. Robert, Arthur and Edward shall be appointed Jennie’s co-guardians for property. c. Edward, who lives in the United States shall provide a $2,500 bond to Mr. Harris, counsel of record for the Respondents. d. Robert and Arthur shall work together to prepare a plan for Jennie’s personal care, including contact with the Applicants. They shall present it to the Office of the Public Guardian and Trustee (“OPGT”) and if they are unable to agree, the court for determination. e. The three property guardians will work out a plan for a budget for Jennie’s upkeep and the preservation of her home sale proceeds. They will present it to the OPGT. It they cannot agree, they will present it to me. f. The balance of the trial, including costs, was adjourned in order to allow the guardians to work together on plans for Jennie’s personal care and property. I reserved the right to make a final decision if they were unable to agree.

[5] On January 29, 2019, the parties agreed to a further interim order, on consent, upon the following terms:

1. Robert and Arthur Carey will meet on Monday February 4, 2019 at 1:00 p.m. to open a trust account for Jennie. All three guardians for property will jointly administer the account in trust for Jennie. All of Jennie’s income shall be placed into this account. No payments will be made unless Robert and one of his co-guardians agrees to the withdrawal or cheque. The account will be opened at the CIBC branch at 2901 Bayview Avenue, North York, Ontario. Robert will make the appointment with CIBC staff.
2. Out of this account, Robert and Arthur may pay each month the amounts in the attached Schedule A budget [which is set out below].
3. Arthur will be reimbursed the sum of $750 per month towards rent, cable, telephone.
4. Up to $500 shall be paid for a TV for Jennie’s room, Robert to purchase and Arthur to arrange cable.
5. Whoever makes a purchase for Jennie or incurs an expense for her will scan and email a receipt to the other two guardians for property. No consent is needed for the expenses set out above.
6. No further expenses, other than as set out above, shall be incurred on behalf of Jennie without the consent of the other two guardians.
7. All of the funds in Jennie’s present bank account, and any other accounts with any financial institutions, at the CIBC branch set out above, shall be placed into the joint account set out in paragraph 1 above. No one shall remove funds from that account until the funds are transferred. The account will thereafter be closed.
8. Robert is entitled to all financial records of Jennie held in any bank or other financial institution, without the requirement of any other person’s consent. Upon receipt, he shall provide copies to each of his co-guardians or their counsel.
9. The terms of paragraph 8 apply equally to Edward and Arthur.
10. The terms set out above entitle Robert, Edward and Arthur to obtain copies of Jennie’s financial records in regard to any joint account she holds or once held.
11. Any disclosure by one guardian to the other may take place by scanning and emailing the relevant document(s) to the other co-guardians.
12. The lawyer holding the proceeds of sale of Jennie’s home shall place those funds in an interest bearing account, with funds not be released without a further court order.
13. On February 10, 2019, Robert will attend at Arthur’s home. He and Arthur will jointly inventory all of Jennie’s assets at Arthur’s home, prepare and sign a joint list, which will be produced to all three guardians. If he is free, Edward may equally participate in this process.
14. Arthur and Robert will attend at Dr. Ehsan’s medical office for a check up to determine Jennie’s medical condition. Either may request a report from her as a participating expert.
15. Arthur will, within 14 days, arrange to have an occupational therapist attend at his home to assess Jennie’s needs and any changes that must be made to his home. This attendance will occur on a Monday in February. The cost will be paid from Jennie’s new bank account. The therapist will prepare a report, which will be admissible at trial without the necessity of calling the author. That does not prevent any party from calling that occupational therapist as a witness at trial.
16. Ms. Postoff [a capacity assessor] shall be retained to attend at Arthur’s home to further assess Jennie and prepare an updated report. Arthur shall make the arrangements, the other guardians shall cooperate. Ms. Postoff’s fees shall be paid from Jennie’s new account.
17. If recommended by Dr. Ehsan [Jennie’s family doctor], Jennie will be seen by a nutritionist.
18. The guardians will meet once per month. The first meeting will be in person, on a date to be arranged by the guardians when Edward is in Ontario. Thereafter the meetings will not be more than 30 days apart. They will be arranged on a date agreed upon by all guardians. It may take place, as agreed, by phone, Skype/Facetime, in person and/or with a mediator.
19. If there are any issues carrying out the terms of this order, the parties may arrange a conference call with me.
20. The balance of this trial (2 days) is adjourned to the Milton trial blitz.
21. Jennie’s personal care expenses budget, set out in Schedule “A” to the parties’ agreement is as follows:

Item	Estimated Monthly Cost	Estimated Annual Cost
Dental Care	$80	$960
Vitamins, medication	$75	$900
Grooming (hair, manicures etc.)	$350	$4,200
Clothing, shoes	$125	$1,500
Food	$350	$4,200
Dry Cleaning	$60	$720
Toiletries & personal	$80	$960
Other (health care, sitter)	$75	$900
Rent	$750	$9,000
Estimated Total	$1,945	$23,340

[6] The parties appeared before me on March 28 and 29, 2019 to complete their evidence and on April 17, 2019 to make their final submissions. Based on that evidence, I find that during the period beginning July 26, 2018 and continuing to date, the following events have taken place:

a. Arthur arranged to have Jennie placed in a three day per week adult day programme run by an organization called Better Living. She attends on Monday, Wednesday and Thursday between 8:30, when a bus picks her up, and 3:30 – 4:00 p.m., when she is returned home. She is provided with a light breakfast and lunch. She engages in a variety of activities, including light exercises, art, music, dance, fellowship, and special speakers. Each day has a different theme. Jennie enjoys the programme and even invites fellow participants to her home. a. Despite the obvious virtues of this programme, Arthur never informed Robert, let alone consulted with him about it. b. The three guardians have been unable to communicate or work together because of the clear animosity that the two camps feel for each other. Robert and Arthur are barely able to communicate with each other. Even when their meetings are mediated by Edward, they are unable to avoid arguing. c. All of the applicants have seen Jennie as regularly as they wish. There have been no issues with that contact. Robert states that he has, with few exceptions, seen Jennie twice per month. Arthur claims that the visits were about monthly as were the visits of Lydia Carey-Patel. I have no information about contact between David Aello and Jennie. d. Arthur unilaterally opened a bank account for Jennie on August 8, 2018, eleven days after my July 26, 2018 order, naming him and Robert as Jennie’s co- guardians. Jennie signed all of the relevant papers for the account, which was in her name. Arthur controlled the account and made withdrawals as he saw fit. Robert was neither consulted nor informed of the existence of this new account. e. Arthur explained that he opened this account in this manner and without advising Robert because the Applicants had appealed my July 26, 2018 order. He stated that he needed to ensure that there was a proper bank account for Jennie. f. That explanation raises two related problems. First, Arthur was required to obey my July 26, 2018 order unless it was stayed. As his counsel would have explained to him, the delivery of the Applicants’ notice of appeal did not stay my order as it did not call for the payment of money (see Rule 63.01 of the Rules of Civil Procedure). Second, the applicants did not issue their notice of appeal for another two weeks or so after the account was opened. Clearly Arthur’s explanation was not only wrong, it was false. The Applicants’ appeal was ultimately quashed by the Ontario Court of Appeal on jurisdictional grounds; my order was interlocutory. g. Robert, Edward and Arthur were to meet together to open a guardianship bank account. The meeting was cancelled by Arthur, because the date was not convenient to him. Arthur and Edward say that Robert failed to attend a second meeting. h. Papers for the account were eventually signed but the account has yet to be opened because the matter is still with the bank’s legal department. That is in part because my January 29, 2019 consent order spoke of a trust account rather than a guardianship account. i. Robert decided on his own that Jennie should be placed in a nursing home. He never shared that opinion with his co-guardian for personal care, Arthur. He also investigated nursing homes close to his Mississauga home (as opposed to the Toronto home of Arthur, where Jennie primarily resides). He stated that that Mississauga location would allow him and his family to visit more frequently. j. Arthur only discovered Robert’s plan and the tentative steps he had taken to place Jennie in a nursing home when the trial resumed on April 28 and 29, 2019. k. Arthur obtained the assistance of the Community Care Access Centre (“CCAC”) in determining what services and assistance Jennie required. CCAC sent an occupational therapist to check on Jennie’s living conditions and make recommendations for improvements to Arthur’s home. An occupational therapist named Nitin Juphe conducted an assessment of Arthur’s home from the perspective of home safety. She made a number of recommendations to make Arthur’s home more safe for Jennie. According to her report, which is admissible in evidence in accord with my January 29, 2019 order, most of those recommendations are minor. They include the installation of bath grab bars, obtaining a non-skid bathmat, removals of certain loose items, etc. Arthur says that he has implemented some of those recommendations and promises to do the rest. l. Arthur made some financial and personal disclosure to Robert in accordance with my January 29, 2019 order, but it has been slow and not entirely complete. However I note that Robert has his own right to financial disclosure arising out of that order, independent of the Respondents. m. The three guardians only met once, on March 19, 2019 at a Tim Horton’s restaurant. Nothing was accomplished at that meeting as it descended into discord. No other monthly meeting has taken place. Edward testified that the meeting deteriorated when Robert began to verbally attack Arthur. n. Neither Robert nor Arthur have taken any further initiative to meet or otherwise communicate in order to work together for the benefit of Jennie, in accord with their status as co-guardians. o. Ms. Postoff, who had earlier assessed Jennie’s capacity to make her own decisions, assessed her again. From her report of February 19, 2019, which is admissible in accord with my January 29, 2019 order, it is clear that: a. Jennie has significant cognitive deficits. b. She is “… incapable of decision-making regarding her personal care in all six domains [of personal care].” Those six domains are health care, safety, nutrition, shelter, clothing and hygiene. c. Jenny lacks insight into her impaired circumstances; d. Jenny requires constant supervision and assistance. e. Jennie’s living quarters are neat and tidy. f. From her comments to Ms. Postoff, Jennie appears happy where she is and has a close relationship with Arthur. Saying that, I recognize that Jennie’s impairment demands caution when one attempts to determine exactly how she is feeling about anything. As Ms. Postoff points out, Jennie’s “…ability to provide any reliable or consistent information was greatly impaired.” g. However, Ms. Postoff’s observations and findings raise no concerns about Arthur’s care of Jennie.

[7] During the course of submissions, both sets of parties changed positions that they had adopted at earlier points in the trial. During his testimony, Robert set out his plan to have Jennie immediately placed in a nursing home. But during his final submissions, Mr. Watson withdrew that plan on his client’s behalf. Robert is now content to allow Jennie to remain living with Arthur, provided that three conditions are met. First Arthur must obey guardianship rules, second, those rules should be given “teeth” to respond to any breach by Arthur. Finally, a process must be put into place to make the decision to place Jennie in a nursing home when the time is right.

[8] Arthur is now willing to accept that he will not be in charge of Jennie’s finances. He is willing to relinquish the right to make all financial decisions and to control Jennie’s money to Edward. He is willing to accept a monthly allowance to maintain Jennie, based on the budget set out above, plus a $1,000 pool for emergency payments. However he asks that he remain co-guardian of property, along with Edward. But he seeks to have Robert be removed.

[9] Robert is willing to agree to the budgetary terms proposed by Arthur. However he rejects his removal as guardian of property. As set out above, he seeks the removal of his co-guardians for both personal care and property.

Analysis

[10] When I made my order on July 26, 2018, I expected that the guardians would be able to find a way to set aside their differences for the benefit of their mother, in whose name they all profess to be litigating. That assumption turns out to have been excessively optimistic. The two sides are unable and unwilling to work together. The responsibility for that state of affairs must fall on each of their heads. I say this because:

With regard to Arthur:

a. He has acted as if he and Edward were Jennie’s only guardians. He has not consulted with Robert nor has he openly disclosed information to him. Robert should not have had to wait until Arthur testified before he could discover many of the steps that Arthur had taken to care for her. He should not require a lawyer to get the financial records in Arthurs possession or control to which he was entitled. b. Further, Arthur’s conduct in opening an account in Jennie’s name, knowing of my order and the fact that Jennie lacks capacity, is inexcusable. I did not intend for him to have exclusive control of Jennie’s finances. That is why I appointed three guardians for property. I will have more to say about Edward’s passive role as a guardian below. The opening and operating of an account in Jennie’s name following my July 26, 2018 order was in itself sufficient to remove Arthur as a guardian for property. c. I did not find Arthur to be a credible witness with regard to either disclosure or financial matters. He was vague and elusive. He kept pointing to a financial reconciliation that never came in order to explain his delay in providing financial disclosure. He was untruthful in his justification for the opening of a bank account on August 8, 2018.

With regard to Robert:

d. For his part, Robert was difficult to deal with and not always available to take on the guardianship role. He did not make himself available for the CCAC occupational therapist’s attendance at Arthur’s home. He did not reach out to his fellow guardians. The guardians arranged to meet to discuss their guardianship plans prior to the return to court at a Tim Horton’s restaurant on March 19, 2019. The meeting was a disaster. Nothing but an increase in rancour was accomplished. As Edward described it, Arthur attempted to describe Jennie’s physical care, when Robert turned hostile. At one point, Robert told Edward and Arthur “ listen, I am not a nice person to get along with – people know this – this is who I am.” I accept Edward’s narrative because he remains the closest to a neutral person in this matter even though he is now more aligned with Arthur than Robert. He started this case on the other side of the sibling fence. e. I acknowledge that Robert has reason to be angry with Arthur, considering the history of this litigation, including the high-handed manner in which he and his co-applicants were originally kept away from his mother. But he has been unable to put his enmity away to work with Arthur and Edward, as he was required to do. f. Robert too has acted unilaterally. He decided that Jennie needed to be put into a nursing home in the summer of 2018. He began to make enquiries about nursing homes near his home in September, 2018. Yet he did not consult with his co-guardians or reveal his intention to place Jennie in a nursing home until he was on the witness stand on March 28, 2019. g. Robert offered the nursing home plan despite the fact that Jennie is doing well and happy in Arthur’s care. He preferred to place her in a residence away from Arthur and conveniently located close to him. The evidence does not show that plan to have been in Jennie’s best interests. Through counsel, he has now effectively conceded the point.

With regard to Edward:

h. Edward cannot escape his part of the blame for Jennie’s present predicament. He has been passive in his role as guardian of property. He has not kept a close eye on Arthur, preferring to assume his honesty. He made this assumption despite the reservations on that count that he expressed during the first part of this trial (as reflected in my July 26, 2018 endorsement). i. I believe that Edward is acting in good faith. He has tried to act as a neutral person in this conflict. But he lives a distance away from Jennie and his co-guardians for property, in North Carolina. Many financial records have been produced since July 26, 2018 required his review. In listening to his evidence, I am not satisfied that he reviewed them all. I know that Edward visits his mother and is very interested in her well-being. But he has not been a good custodian of her financial interests. He has not operated as a check on Arthur’s conduct in unilaterally controlling Jennie’s finances.

[11] In many ways this guardianship decision requires the court to put together a jigsaw puzzle whose parts do not fit together. It is clear that these three guardians cannot work together. As I have stated above, responsibility for that state of affairs can be allocated to all three, albeit not equally. As a result, it is necessary to split up the guardianship functions in a manner that does not exacerbate the differences between the guardians and is most likely to work to Jennie’s benefit. I choose to allow the “rival” guardians for property and personal care to work in parallel fashion.

Guardianship of Property

[12] With regard to property, as I have said above, Arthur’s conduct disentitles him to a role as a guardian for Jennie’s property. He essentially concedes the point, if not the rationale. Both Robert and Edward have stated that they cannot work together, and neither wishes to be the other’s co-guardian. I have criticised Edward for his passivity in regard to monitoring Arthur’s control of Jennie’s finances. That is not because of an alignment with Arthur as much as his location and schedule preventing him from fully carrying out a role of financial oversight of Arthur.

[13] Accordingly, I terminate both Edward and Arthur as Jennie’s guardians of property. Robert will remain as the sole guardian for Jennie’s property.

[14] The plan for Jennie’s property will involve Robert taking control of all of Jennie’s finances, including her pension receipts and all of her bank accounts. From the time of release of these reasons onward, no funds shall be removed from any of her bank accounts, nor shall any of her money be spent unless in accord with this order or approved in writing by Robert. Further, none of her property will be sold or pawned or given away without Robert’s consent.

[15] Within fifteen days of the release of these reasons, Arthur shall cooperate with Robert in the orderly transfer of all of Jennie’s bank accounts to Robert as follows:

a. Arthur will disclose to Robert all accounts held at any bank or other financial institution by or for the benefit of Jennie (whether held in her name, jointly with any other person, in trust for her or by a guardian or guardians). b. Disclose to Robert all information about the finances of Jennie (including all contact information of the payors of pensions, annuities, and other income). c. Direct or cooperate in the direction of all of Jennie’s financial assets and income to such guardianship accounts as are designated by Robert for the benefit of Jennie; d. Deliver to Robert the will of Jennie, if he has an original copy. A photocopy of that will has already been filed as an exhibit in this trial.

[16] Any financial institution in receipt of a true copy of my order shall:

a. Immediately cancel any rights, powers, or access of any kind (including any debit card or online access) to Jennie’s accounts by Arthur and/or Douglas, and b. Transfer all funds in Jennie’s accounts with Arthur and/or Douglas (whether alone or jointly with any other person) to a guardianship account for Jennie designated by Robert.

[17] All funds belonging to Jennie and currently held in trust by Jolanta Krystkowicz pursuant to the order of Gray J. of June 25, 2014 and the orders of Sproat J. of July 11, 2014 and October 2, 2014 shall be paid forthwith to Richard K. Watson Professional Corporation in Trust, to be dealt with as directed by Robert for the benefit of Jennie. However:

a. Those funds may only be released in accordance with the management plans described in this decision. b. They shall be invested in a manner that earns a safe return on interest; c. Those funds will not be used to pay any legal fees for this proceeding unless this court orders otherwise; d. They shall not be subject to a solicitor’s lien unless the court orders otherwise.

[18] Robert shall forthwith upon transfer of Jennie’s bank accounts to him, provide Arthur with 12 postdated cheques, dated the 1st day of each month from May onward, each in the amount of $1,945.

[19] Robert shall also provide Arthur with a further $1,000, to constitute a pool of funds for any urgent payments on behalf of Jennie. Those payments may include any repairs or improvements to Arthur’s home recommended by Jennie’s occupational therapist or CCAC. If Arthur spends any money from this pool, he shall supply Robert with a receipt for any such payment within seven days of the expense being incurred. Robert will reimburse Arthur for the payment within seven days of receiving such a receipt.

[20] I have chosen not to place any of Jennie’s non-financial personal property into Robert’s hands as guardian. I will to allow her to live with what remains of that property. However none of that property will be disposed of in any manner without the written consent of Robert.

Guardianship of Personal Care

[21] I do not find that Robert’s plans for Jennie’s care, while undoubtedly well-meaning, have demonstrated an ability to separate his feelings for Arthur from a determination of what is best for Jennie. For whatever reasons, he has been unable to work with Arthur, who is caring for Jennie. He seems unable to even work with Edward, whom he sees as having moved into Arthur and Douglas’ side of the conflict.

[22] I also find that Arthur has taken proper care of Jennie. She is doing as well as can be expected for a woman of her age and health challenges. Whatever my concerns about Arthur’s control of Jennie’s money, they do not extend to his care of her. In other words, I trust him to make personal care decisions in Jennie’s best interests.

[23] Edward is able to work with Arthur. He deeply cares for his mother. He testified that if made co-guardian for personal care, he is willing to come in to Toronto more often to see her. He can work with Arthur to determine what is best for Jennie and, if and when necessary, help plan for Jennie’s potential move to a nursing home. I see this role as less onerous than being co-guardian of property. He will not have to engage in the level of granular oversight of Arthur that I expected of him when he was co-guardian of property. Rather, he will be able to assist Arthur in making decisions about the care of Jennie. I expect him exercise independent judgment in doing so.

[24] Accordingly, Robert is terminated as Jennie’s co-guardian for personal care and replaced by Edward.

[25] All of that being said, no decision regarding Jennie being transferred to a nursing home will be taken unless and until all of the adult children of Jennie are consulted. That consultation shall include the provision of all relevant professional reports, including medical and occupational therapy reports that relate to Jennie’s ability to continue to reside with Arthur or need to move to a nursing home. After that consultation, the decision of the guardians for personal care will be binding. If Jennie is to be transferred, Robert will make the appropriate financial arrangements.

[26] However if Robert feels that the financial arrangements that Arthur and Edward make with a nursing home are financially unreasonable, or if they feel that Robert’s unwillingness to agree to the financial arrangements that they have made is unreasonable, either may return before me to determine the issues of placement and cost.

[27] Other than as set out above, the management plans included in my order of January 23, 2019 shall continue in full force and effect until further order.

[28] Further, Arthur shall implement all of the changes to his home set out in Ms. Juphe’s report within 30 days. Robert will cooperate in ensuring that Arthur receives the $1,000 advance pool into which Arthur may dip in order to pay for those changes.

[29] Each guardian named in this order shall provide their siblings, on request, with information and all relevant documents regarding the present state Jennie’s property or personal care, as the case may be, as well as any developments in her health or condition. They shall do so within seven days of request.

[30] I direct Jennie’s guardians of personal care to allow the maximum amount of visitation that is consistent with her best interests. In that regard, the visitation schedule set out in my order of July 26, 2018 shall represent the minimum amount of visitation that Jennie’s adult children and brother, David Aello will be entitled to exercise. I direct Arthur to work cooperatively in that regard. However any sibling exercising visitation with Jennie shall give Arthur reasonable notice of his or her intention to exercise such visitation.

I will Remain Seized

[31] As counsel have agreed, I will remain seized of any issues related to the implementation of my order. If any issues arise in that regard, the parties may arrange to appear before me. If counsel (and only counsel) agree, they may first arrange a conference call before me.

Re Costs

[32] The parties have agreed that they will deal with costs by way of written submissions. While the results of this proceeding appear at first blush to be at least mixed, I do not know what offers to settle were exchanged, nor was I present at many steps in which costs were reserved to trial.

[33] Accordingly, Mr. Watson may provide me with his written submissions within fourteen days of the release of these reasons. Mr. Harris or Mr. Lititz may respond in a further 14 days.

[34] Each submission shall be no more than three pages, double spaced 12 point font, 1 inch margins, plus bill of costs or costs outline, offers to settle and any authorities.

[35] There will be no reply unless I so order.

[36] As I told them at the conclusion of evidence, I wish to commend both sets of counsel for their professionalism and civility throughout this proceeding.

Kurz J.

Released: April 26, 2019