Court File and Parties

COURT FILE NO.: CV-18-601589 DATE: 20190603 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DOROTHY BUCKHALTER, a person under legal disability by her husband and litigation guardian, IAN R. A. MACMILLAN, IAN R. A. MACMILLAN in his personal capacity, Plaintiffs AND: KENSINGTON HEALTH CENTRE carrying on business as KENSINGTON GARDENS, MILLS & MILLS LLP, JAD RABATI, RICHARD G. WORSFOLD, THE OFFICIAL GUARDIAN AND PUBLIC TRUSTEE OF ONTARIO, TORONTO DOMINION CANADA TRUST BANK, Defendants

BEFORE: Justice W. Matheson

Endorsement

[1] This matter was referred to me pursuant to Rule 2.1.01(7) of the Rules of Civil Procedure, as set out in my endorsement dated March 11, 2019, for which the citation is: 2019 ONSC 1576.

[2] As set out in my prior endorsement, the statement of claim is handwritten and largely illegible, and it appears that the document used to issue the statement of claim was a poor photocopy of the handwritten document.

[3] As set out in the above endorsement, I made a number of orders including the following:

(a) pursuant to subrule 2.1.01(3)1, the Registrar was directed to give notice to the plaintiffs that the Court was considering making an order under Rule 2.1.01; and,

(b) if the plaintiffs chose to make written submissions under Rule 2.1.01(3)2, they were required to use large and clear enough handwritten or typed lettering to ensure that the submissions were legible and they were also required to provide a transcription of the statement of claim.

[4] In accordance with the above orders, a notice dated March 12, 2019 was sent to Mr. MacMillan, including my endorsement. The plaintiffs’ written submissions, if they chose to make them, were due within 15 days of receiving the notice.

[5] Mr. MacMillan came to the court office on or around April 18, 2019 and indicated that he had just received the notice. He was given more time to file any submissions. More than 40 days have now passed and no written submissions have been filed with the court. In the absence of submissions, which were required to include a legible transcription of the statement of claim, I have discerned the content of the statement of claim as much as I can and make this decision on that basis.

[6] The use of Rule 2.1 should be limited to “the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process”: Khan v. Krylov & Company LLP, 2017 ONCA 625, at para. 8, citing Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, 343 O.A.C. 87, leave to appeal refused, [2015] S.C.C.A. No. 488, at paras. 7-9.

[7] According to the statement of claim, the plaintiff Mr. MacMillan is the husband of the other plaintiff, Dorothy Buckhalter, and, as set out in the title of proceedings, Dorothy is under a legal disability. The claim refers to Dorothy’s two adult children, David and Lisa, both in their 50s. Before the events at issue, Mr. MacMillan, David and Lisa were all named in Dorothy’s power of attorney for property. The statement of claim states in early 2011, David and Lisa began to suspect that Dorothy had symptoms of dementia and early onset Alzheimer’s.

[8] The statement of claim recounts that in September 2011, Dorothy asked Mr. MacMillan to leave their home, after which they had a period of estrangement. The claim alleges that during this period, David and Lisa took steps to retain legal counsel, resulting in a change in their mother’s power of attorney for property to exclude Mr. MacMillan as an attorney for property. The law firm and lawyer named as defendants are Mills & Mills LLP and Jad Rabati.

[9] With respect to the other defendants, it appears from the statement of claim that Dorothy either is or was residing at the defendant Kensington Gardens and has one or more bank accounts at the TD Bank. It appears that the Public Guardian and Trustee (“PGT”) was named as a defendant because, among other relief sought, the claim seeks the appointment of the PGT to represent Dorothy on an interim basis.

[10] The complaints made in the statement of claim appear to relate to these topics: the steps taken by David and Lisa to retain counsel and have their mother’s power of attorney for property changed so that they alone were appointed as attorneys, rather than the prior arrangements that included Mr. MacMillan, numerous allegations of misconduct against David and Lisa, related allegations against the law firm and lawyer, allegations that the legal bills were wrongly paid out of Dorothy’s monies, allegations that the TD Bank wrongly permitted changes to be made and monies paid out of Dorothy’s account or accounts and allegations that Kensington Gardens has acted improperly in relation to Dorothy.

[11] David and Lisa are not named as defendants in this action. However, the statement of claim says that there are a number of other legal proceedings underway, including a proceeding against David and Lisa.

[12] The allegations of wrongdoing and potential causes of action (although not named) in the statement of claim primarily relate to claims that Dorothy may have regarding her ability (or lack thereof) to change her power of attorney for property, the use of her funds, and changes to her bank accounts and living arrangements.

[13] There is a threshold issue arising from the statement of claim as pleaded in relation to Dorothy. On its face, the statement of claim asserts that Dorothy is a person under a disability. Further, it contains allegations regarding dementia and Alzheimer’s. Mr. MacMillan is named as Dorothy’s litigation guardian in the title of proceedings. However, Rule 7.02 of the Rules of Civil Procedure requires that, unless a court orders otherwise, a mentally incapable plaintiff shall be represented by either: (1) their guardian (if they have a guardian who has been appointed to act as litigation guardian in the proceeding); or, (2) an attorney under a power of attorney with that authority.

[14] No court order has yet been made in this proceeding other than my prior endorsement under Rule 2.1. Mr. MacMillan was an attorney under a former power of attorney according to the statement of claim, however it is also alleged that there is a new power of attorney that excludes him. The new power of attorney is disputed.

[15] I will not, under Rule 2.1, make any assumptions about the merits of the dispute over Dorothy’s new power of attorney. However, even if Mr. MacMillan could act as litigation guardian, the mandatory requirements to undertake that role have not been met.

[16] Rule 7.02(2) provides that 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 provides certain required information. Among other things, the affidavit must state that the person has no interest in the proceeding adverse to Dorothy and must confirm that the person has given written authority to a named lawyer to act in the proceeding. In turn, Rule 15.01(1) requires that a party to a proceeding who is under a disability shall be represented by a lawyer. These are important requirements that protect a plaintiff who is under a disability.

[17] No affidavit has been filed in this proceeding. Further, as shown on the face of the statement of claim, Mr. MacMillan is attempting to represent Dorothy himself, without a lawyer.

[18] In these circumstances, the claim advanced by Mr. MacMillan as litigation guardian, which fails to meet these important and mandatory requirements, is an abuse of the process of this court.

[19] Steps could be taken to correct the above problems. I make no comment about whether or not, taking the necessary steps, Mr. MacMillan could serve as Dorothy’s litigation guardian. However, until that issue is addressed, it is appropriate that this action brought by him as litigation guardian be stayed.

[20] As far as I can tell from the statement of claim, there is no discernable cause of action advanced by Mr. MacMillan in his personal capacity. As such, it may be stayed or dismissed. Given the other issues, I conclude that it should also be stayed.

[21] With the exception of steps that may be taken to address the question of the litigation guardian for Dorothy, this action is stayed. Once the litigation guardian issue has been addressed, a motion may be brought to the court seeking an order to lift the stay.

Justice W. Matheson Date: June 3, 2019