Court File and Parties
Court File No.: CV-18-77780 Date: 20190625 Superior Court of Justice - Ontario
Re: PAUL CORDANI, personally and formerly in his capacity as POWER OF ATTORNEY FOR PROPERTY AND FOR PERSONAL CARE OF ROMEO MARCO GUIDO CORDANI, Applicant And ROMEO MARCO GUIDO CORDANI (ALSO KNOWN AS ROMEO CORDANI) and THE PUBLIC GUARDIAN AND TRUSTEE, Respondents
Before: Mr. Justice Robert N. Beaudoin
Counsel: Dave Morin-Pelletier, for the Applicant Brett Hodgins, for the Respondent Romeo Cordani
Heard: In writing
Endorsement
Background
1The applicant seeks a consent order and an order dismissing the application without costs.
2The law clerk’s affidavit in support of the motion discloses that the parties attended a mediation and agreed to a final settlement of the application. That settlement was formalized by final minutes of settlement which are attached as an exhibit to the affidavit.
3The affidavit further discloses that correspondence was sent to counsel for the respondent enclosing a consent for his signature and a draft order for his approval as to its form and content which are then signed. No other information is provided.
4The draft order in the motion record is unusual in its content. Amongst other things, the draft order provides:
- For the transfer of funds from the respondent to the applicant within 15 days of the execution of minutes of settlement;
- For the transfer of additional funds within the next 30 days of the signature of the minutes of settlement.
- That, in default, the respondent shall consent to register a second charge on the property municipally known as 854 Galleria Circle, Orleans Ontario.
- That the applicant is to retain a lawyer to pay the related fees to give effect to the charge.
- How the charge shall be satisfied.
- The respondent is required to designate the applicant as the irrevocable beneficiary of his existing life insurance policies.
- The applicant is required to return two guns to the respondent.
- A final paragraph requires the respondent to sign a written acknowledgement confirming that his signature is on three order entry forms dated August 16, 2018.
Procedural History
5On June 18, 2019, I provided a short written endorsement requesting information why the Public Guardian and Trustee was a party to the proceeding and I noted that the Public Guardian and Trustee had not been served with the motion. Given the nature of the draft order, I requested a more fulsome record.
6Rather than providing an amended record, counsel has written a letter to the Trial Coordination Office. That letter purports to answer the questions raised in my endorsement. Counsel attaches correspondence from the office of the Public Guardian and Trustee which explains why they were not served with the motion materials. His letter also provides a copy of an amended notice of application.
7All of these materials should have been included in the original motion record. Counsel may believe that all of these documents are in the court file and that the signing judge or master somehow has access to all of these materials. That is not the case. When a motion is presented in writing, the judge or master simply has the materials contained in the motion record and nothing else.
8When a judge or master provides a short endorsement identifying any issues with the materials provided; and amended record and affidavit must be provided. A court order is based on the evidence provided in the record; not on unsworn correspondence.
Analysis
9An order that is based only on a consent and a draft order approved as to form and content can be obtained from the registrar provided that no party under disability is affected by the order. The list of these orders is set out in rule 37.02(3) of the Rules of Civil Procedure.
10Simple orders of a similar nature can be obtained from a judge or master without the necessity of serving and filing a formal motion record and supporting affidavit.
11In this case, the title of proceedings, in and of itself, invites further inquiry. Not only has the Public Guardian and Trustee been named as a party, the application is brought under the provisions of the Substitute Decisions Act, 1992, S.O. 1992, c.30. These materials suggest that the respondent may be a party under disability. The unusual nature of the draft order calls out for a more thorough explanation as to why the court should grant the relief sought.
Disposition
12Counsel are to prepare an amended motion record and shall arrange to have the motion heard in court in the event the presiding judge has any further questions.
Mr. Justice Robert N. Beaudoin Date: June 25, 2019