Superior Court of Justice - Ontario
COURT FILE NO.: 11-50312
DATE: 2019/08/16
BETWEEN: John McMurtry, Plaintiff
AND
Jim McMurtry, Defendant
AND BETWEEN: Jim McMurtry, Plaintiff by Counterclaim
AND
John McMurtry, Brenda McMurtry, Barry Coons, Bouris Wilson LLP and Mic Mac Realty (Ottawa) Ltd., Defendants by Counterclaim
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Jeff Saikaley for John McMurtry and for Brenda McMurtry Daniel Mayo for Jim McMurtry
HEARD: In Writing
ENDORSEMENT
Introduction
[1] The McMurtry family matriarch (Mildred), two of her sons (John and Jim), and one of her daughters-in-law (John’s wife, Brenda) are embroiled in litigation related to the ownership of shares of Mic Mac Realty (Ottawa) Ltd. (“the Shares”). The business was co-founded by the McMurtry family patriarch; he passed away prior to the commencement of the litigation.
[2] In addition to the action commenced by John, there is a companion action commenced by Mildred (“Mildred’s Action”). John and Brenda are defendants in that action. They are also defendants to the counterclaim advanced by Jim in this action.
[3] The trial of both actions was split into two parts. In 2015, Mildred’s Action proceeded to trial for a determination with respect to ownership of the Shares (McMurtry v. McMurtry 2016 ONSC 2853). The relief granted is set out at para. 187 of that decision and includes a declaration that Mildred:
a) Is, by virtue of her status as the residuary beneficiary of the Estate of Keith McMurtry (“the Estate”), the beneficial owner of 10 common shares in Mic Mac Realty (Ottawa) Ltd. (“the Shares”); and
b) Has in that capacity since January 1999 held and continues to hold the Shares in a constructive trust for John McMurtry.
[4] The balance of Mildred’s Action is scheduled to continue in December 2019, for three weeks. The trial of this action and Jim’s counterclaim will also proceed at that time.
[5] In summary, John is (a) the plaintiff in this action, (b) a co-defendant with Brenda, to Jim’s counterclaim in this action, and (c) a co-defendant with Brenda, in Mildred’s Action. In October 2015, shortly after the first part of the trial of these actions concluded, John suffered a brain hemorrhage and a stroke. As a residual effect of these medical events, John has cognitive and physical limitations.
[6] A motion is brought in this action (and the counterclaim), for an order appointing Brenda as John’s litigation guardian. There is, as yet, no similar motion in Mildred’s Action.
The Issues
[7] The two issues to be determined are:
Does John require a litigation guardian?
If so, is Brenda to be appointed as his litigation guardian?
Issue No. 1 - Does John require a litigation guardian?
a) The Law
[8] A person “under disability”, as defined in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, requires a litigation guardian. Rule 7.01 addresses the representation of a plaintiff by a litigation guardian. Subrules 7.03(2) and (3), respectively, address the representation, by a litigation guardian, of a defendant and of a defendant by counterclaim.
[9] The word “disability” where used in respect of a person, is defined in r. 1.03(1) as:
(a) a minor,
(b) mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether the person has a guardian or not, or
(c) an absentee within the meaning of the Absentees Act.
[10] For the purpose of this motion, only r. 1.03 (1)(b) is relevant.
[11] Section 6 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”), defines when a person is “incapable of managing property”. Section 45 of the SDA defines when a person is “incapable of personal care”.
[12] Based on the evidence on this motion, only the definition of “incapable of managing property” is relevant to the issue of whether John requires a litigation guardian. Section 6 of the SDA defines that phrase as when “the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”
[13] In Calvert (Litigation Guardian of) v. Calvert (1997), 1997 12096 (ON SC), 32 O.R. (3d) 281, Benotto J. reviewed in detail the purpose of Rule 7, the definition of legal disability, and the evidentiary basis for determining whether a party is “under disability”. In that review, Benotto J. referred to the decision of Stinson J. in 626381 Ontario Ltd. v. Kagan, Shastri, Barristers & Solicitors, 2013 ONSC 4114, 116 O.R. (3d) 202. Stinson J. described the test on a motion of this kind as: “[Whether] the person is able to understand information that is relevant to making a decision in respect of an issue in the proceeding or able to appreciate the reasonably foreseeable consequences of a decision or lack of decision in the proceeding” (Kagan, para. 25).
[14] What type of evidence is required to permit the court to answer the question posed in the paragraph immediately above? At para. 26 of Kagan, Stinson J. highlighted that “recent medical evidence as to the party’s ability to understand and appreciate the impact and consequences of litigation decisions is of great importance”.
b) The Evidence
[15] I turn to the evidence before the court in support of the request for the appointment of a litigation guardian to represent John in both this action and the counterclaim.
[16] The only evidence before the court is an affidavit sworn by Brenda in April 2019.
[17] In her affidavit, Brenda summarizes the history of this action, Jim’s counterclaim, and Mildred’s Action. In a two-line paragraph, Brenda describes the circumstances that led to John’s current limitations. At para. 11 of her affidavit, Brenda says, “In or about October 2015, soon after the first trial, John suffered a brain hemorrhage and a stroke. As a result, he has been left with physical and cognitive deficits.”
[18] The majority of the information (not evidence) before the court is in the form of:
a) A report dated August 30, 2018 prepared by capacity assessor, Dr. Sarazin (a copy of the report is attached as the only exhibit to Brenda’s affidavit); and
b) Two paragraphs in Brenda’s affidavit in which she quotes:
i) What her counsel told her was said to him by Dr. Sarazin about John’s inability to provide instructions to counsel; and
ii) Directly from Dr. Sarazin’s report with respect to John’s impaired cognitive abilities with respect to the two actions.
[19] In the final six substantive paragraphs of her affidavit, Brenda addresses the requirements of Rule 7 of the Rules of Civil Procedure with respect to acting as a litigation guardian. These six paragraphs, if included in an affidavit on their own, provide the content expected in an affidavit of litigation guardian when prepared prior to the commencement of a proceeding.
[20] There is no affidavit from Dr. Sarazin. Nor is a Form 53 (Acknowledgement of Duty of Expert Witness), signed by Dr. Sarazin, included with her report or as an exhibit to Brenda’s affidavit. Lastly, there is no evidence that a notice, pursuant to s. 52 of the Evidence Act, R.S.O. 1990, c. E. 23, was served, on the opposing parties, with respect to Dr. Sarazin’s report.
[21] In summary, there is no first-hand evidence from Dr. Sarazin. The information as to Dr. Sarazin’s opinion and conclusions, on the critical issue of John’s limitations, is second-hand (Brenda’s direct reference to the contents of Dr. Sarazin’s report) or third-hand (Brenda repeating what her counsel told her about the statements made to counsel by Dr. Sarazin).
c) Analysis
[22] Is the court entitled to consider the opinions and conclusions expressed by Dr. Sarazin in her report as evidence on the motion? Put another way, are the deficiencies in the evidence on the critical issue to be overlooked? For a number of reasons, these deficiencies cannot be overlooked.
[23] First, as will be seen from the decision under Issue No. 2 below, Brenda is not in a position to act as litigation guardian for John. The motion is adjourned to permit another individual to apply to be appointed as the litigation guardian for John in this action (and in the counterclaim) and in Mildred’s Action. It is not possible, at this time, to make a final determination on the issue of the appointment of a guardian. It is, therefore, reasonable to require the moving party to satisfy the evidentiary burden they bear with evidence that meets the requirements established by statute and the related case law.
[24] There may be circumstances in which it would be “just, most expeditious and least expensive” for the court to determine a motion of this kind on the basis of evidence that falls short of statutory and regulatory requirements (r. 1.04(1) of the Rules of Civil Procedure). The court’s recent decision in Milicevic v. Ottawa Police Service, 2019 ONSC 3599, is one such example. The circumstances in that case were, however, dramatically different from those in the matter now before the court. In addition, as noted at paras. 85-92 of Milicevic, the court did not lightly reach the decision to rely on evidence that fell short of the relevant requirements.
[25] Therefore, when this motion is brought back before the court, and the related motion in Mildred’s Action is made, the evidence shall include an affidavit in the name of Dr. Sarazin. The exhibits attached to that affidavit shall include (a) a copy of Dr. Sarazin’s August 2018 report, and (b) a Form 53 executed by Dr. Sarazin.
[26] Before leaving the subject of evidence in support of the relief requested on this motion, I shall comment briefly on the consent filed with the motion materials. The consent includes the titles of proceeding for the main action and counterclaim. The consent is signed by counsel for John and Brenda, by Jim’s counsel, and by Mildred’s counsel. Mildred is not, however, a party to this action or to the counterclaim.
[27] In addition, I query whether John’s lawyer of record is in a position to sign the consent on John’s behalf. The critical issue on the motion is whether John is able to provide instructions to counsel.
[28] When the motion in this action is brought back and the motion in Mildred’s Action is made (a) a separate consent shall be filed for each action, and (b) the consent in each action shall not include consent on John’s behalf.
Issue No. 2 – Is Brenda to be appointed as litigation guardian?
a) Sub-[rule 7.02(2)](https://www.canlii.org/en/on/laws/regu/rro-1990-reg-194/latest/rro-1990-reg-194.html) of the [Rules of Civil Procedure](https://www.canlii.org/en/on/laws/regu/rro-1990-reg-194/latest/rro-1990-reg-194.html)
[29] Pursuant to r. 7.02(2), a person may act as litigation guardian for a plaintiff under disability only upon filing an affidavit in which the putative litigation guardian provides certain evidence. The affidavit of litigation guardian must include a statement that the individual who proposes to act as litigation guardian “has no interest in the proceeding that is adverse to that of the person under disability” (r. 7.02(2)(g). At para. 20 of her affidavit, Brenda makes such a statement. In the circumstances of this action and the counterclaim (and Mildred’s Action), is such a statement by Brenda true?
[30] Subrule 7.02(2) generally, and sub-rule 7.02(2)(g) specifically, place a positive obligation on a litigation guardian to be “indifferent” to the outcome of the litigation—meaning that the litigation guardian has no vested interest in the outcome, one way or another (Holmstead and Watson, Ontario Civil Procedure, vol. 2 (Toronto: Thomson Reuters, 2018) (loose-leaf) at p. 7-28)).
[31] Copies of the pleadings in this matter, the counterclaim in particular, are not included as discreet documents in the motion record. They should be included—specifically where a co-defendant to a counterclaim seeks to be appointed as litigation guardian for another co-defendant to the counterclaim. A review of the allegations made in the counterclaim is required to determine whether Brenda has an interest in the action and/or in counterclaim that may be adverse to John’s interest therein.
[32] The same is true with respect to John and Brenda as co-defendants in Mildred’s Action. Is Brenda in a position to state unequivocally that she has no interest adverse to John’s interests in the outcome of the proceedings? Copies of the pleadings must be included as discreet documents in the motion record, when delivered.
b) The Case Law
[33] In Gronnerud (Litigation Guardian of) v. Gronnerud Estate, the Supreme Court of Canada addressed the level of disinterest in a proceeding required on the part of an individual seeking to act as a litigation guardian (2002 SCC 38, [2002] 2 S.C.R. 417).
[34] The decision at first instance is from Saskatchewan, where the relevant criteria includes that the proposed litigation guardian be “indifferent as to the outcome of the proceeding” (Szwydky v. Magiera (1988), 1988 4975 (SK KB), 71 Sask. R. 273 at para. 9).
[35] At para. 20 of their decision, the Supreme Court of Canada defined “indifference” as:
[Requiring] that the guardian be capable of providing a neutral, unbiased assessment of the legal situation of the dependent adult and offering an unclouded opinion as to the appropriate course of action … A litigation guardian who does not have a personal interest in the outcome of the litigation will be able to keep the best interests of the dependent adult front and centre, while making decisions on his or her behalf. Given the primacy of protecting the best interests of disabled persons, it is appropriate to require such disinterest on the part of a litigation guardian.
[36] It makes no difference whether the requirement is that a litigation guardian be “indifferent” to the outcome or that the litigation guardian not be adverse in interest to the person under disability. Both criteria serve the same purpose—ensuring that the litigation guardian puts aside his or her own interests and promotes the best interests of the person under disability (Zabawskyj v. Zabawskyj, 2008 19248 (ON SC), [2008] O.J. No. 1650, at para. 29).
[37] None of the parties in this action, to the counterclaim, and in Mildred’s Action appear to have given consideration to (a) Brenda’s status as a litigant in the proceedings, and (b) the potential for her to have an interest in the outcome of the proceedings that is adverse to John’s.
Disposition
[38] The motion is adjourned, to be brought back before me together with a similar motion in Mildred’s Action. The trial of this action, the counterclaim, and Mildred’s Action is scheduled to continue in December 2019. It is therefore imperative that a litigation guardian be appointed for John in a timely manner.
[39] I am seized of the matter, as a result of which this motion and the related motion in Mildred’s Action are to be brought before me. The motions may be brought before me in writing. If, however, counsel for John and Brenda prefers to proceed with the motions orally, he is to contact the Motions Co-ordinator to arrange a date for the motions to be heard as soon as practicably possible.
Madam Justice S. Corthorn
Date: August 16, 2019
COURT FILE NO.: 11-50312
DATE: 2019/08/16
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN: John McMurtry, Plaintiff
AND
Jim McMurtry, Defendant
AND BETWEEN: Jim McMurtry, Plaintiff by Counterclaim
AND
John McMurtry, Brenda McMurtry, Barry Coons, Bouris Wilson LLP and Mic Mac Realty (Ottawa) Ltd., Defendants by Counterclaim
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Jeff Saikaley for John McMurtry and Brenda McMurtry Daniel Mayo for Jim McMurtry
ENDORSEMENT
Madam Justice S. Corthorn
Released: August 16, 2019