COURT FILE NO.: CV-18-3674-OT

DATE: 2019-02-04

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KATHARINE BRENDA COMEAU, Applicant

AND: FREDERICK NEWTON DECOFF, WAYNE DECOFF, and THE PUBLIC GUARDIAN AND TRUSTEE, Respondents

BEFORE: Regional Senior Justice B. G. Thomas

COUNSEL: Joseph J. Neal, Counsel, for the Applicant Josephine Stark, Counsel, for the Respondents

HEARD: In writing.

ENDORSEMENT

[1] This motion is before me in writing seeking to transfer Application File 3674/16 from Oshawa to Windsor to be heard there. The motion is brought by the Respondent, Frederick Newton DeCoff, (“Frederick DeCoff”).

[2] The Application, commenced in Oshawa, seeks a declaration that Frederick DeCoff is incapable of managing his own affairs. In summary, the Application as well seeks to set aside any powers of attorney granted by Frederick DeCoff on November 26, 2018 and a revocation of previous powers of attorney signed on the same date. The effect of the above orders would be to continue the powers of attorney signed on November 4, 2008 in favour of the Applicant, Katharine Brenda Comeau, (“Katharine Comeau”) as attorney.

Preliminary Issue

[3] I have the motion of Frederick DeCoff along with his affidavit in support. Counsel for Katharine Comeau, (the Applicant in the Application and the Respondent in this motion), has filed written submissions. Counsel for the Moving Party, Frederick DeCoff, has filed a reply.

[4] Frederick DeCoff’s counsel has pointed out that there is no affidavit material provided to support the position of Katharine Comeau and that written submissions should not be received as evidence of the facts contained therein.

[5] I am committed to dealing with this motion efficiently as there are returnable dates upcoming and Frederick DeCoff is 81 years of age. I am prepared to accept the written submissions of Katharine Comeau as evidence in this one instance. In my view, it is important for me to have these submissions and deal with the motion now on as full a record as possible.

Background

[6] Katharine Comeau is the daughter of Frederick DeCoff. As well, there are two sons, Bruce DeCoff and Wayne DeCoff. Wayne is a Respondent in this Application. Counsel for the Applicant practices in Oshawa where this Application was commenced. Bruce DeCoff resides sixty minutes north of Oshawa. The Applicant lives in Lindsay.

[7] Frederick DeCoff is 81years of age. He lived much of his life in Whitby and owns a home there. In July, 2018 Frederick DeCoff moved to Windsor to reside with his son Wayne.

[8] Frederick DeCoff appointed the Applicant, his attorney, for both property and personal care on November 4, 2008. It seems that in early November, 2018, the Applicant Katharine Comeau and her brother Bruce DeCoff became concerned about what they termed “suspicious banking transactions” after their father moved to Windsor. As a result, they travelled to Windsor on November 24, 2018 and had their father attend with them at the Windsor Public Library where Gail Barbour, R.N., assessed him under the Substitute Decisions Act, 1992. Ms. Barbour found him incapable of managing his personal care and his personal property.

[9] On November 26, 2018 Frederick DeCoff signed a personal care power of attorney in favour of his son, Wayne DeCoff and revoked the 2008 powers of attorney.

[10] On December 21, 2018 Frederick DeCoff was assessed by Carol Caverzan and found capable.

[11] The Application that is the subject of this motion was issued on December 18, 2018 and amended on January 9, 2019. An Application was issued by Frederick DeCoff in Windsor on January 11, 2019 seeking to uphold the November 26, 2018 power of attorney in favour of Wayne DeCoff and for a declaration that Frederick DeCoff is capable of managing his own affairs.

Analysis

[12] It is left then to me to determine if the proposed transfer of the Application is desirable in the interests of justice (Rule 13.1.02(b)) having regard to the following factors:

(2) If subrule (1) does not apply, the court may, on any party’s motion, make an order to transfer the proceeding to a county other than the one where it was commenced, if the court is satisfied,

(b) that a transfer is desirable in the interest of justice, having regard to,

(i) where a substantial part of the events or omissions that gave rise to the claim occurred,

(ii) where a substantial part of the damages were sustained,

(iii) where the subject-matter of the proceeding is or was located,

(iv) any local community’s interest in the subject-matter of the proceeding,

(v) the convenience of the parties, the witnesses and the court,

(vi) whether there are counterclaims, crossclaims, or third or subsequent party claims,

(vii) any advantages or disadvantages of a particular place with respect to securing the just, most expeditious and least expensive determination of the proceeding on its merits,

(viii) whether judges and court facilities are available at the other county, and

(ix) any other relevant matter.

[13] While the factors listed above are not easily adaptable to this proceeding, I find that the factors listed in Rule 13.1.02(2)(b)(i)-(iii) could be seen to refer to the location where Frederick DeCoff resides and where the capacity assessments were undertaken thereby favouring a transfer to Windsor.

[14] Factor (iv) has no application here. Factor (v) must take into account that the assessor, Barbour, resides in London, much closer to Windsor than Oshawa. The assessor Caverzan resides in Windsor. The Respondent Wayne DeCoff resides in Windsor while the Applicant and the brother Bruce DeCoff reside substantially closer to Oshawa than Windsor.

[15] Most importantly to me, Frederick DeCoff is 81 years of age. He is prescribed multiple medications to assist him with his ailments. He has sworn an affidavit in this motion which speaks of the hardship that would be visited on him if he had to travel to Oshawa to attend court there.

[16] The Court could determine this litigation in Oshawa or Windsor. I believe it relevant as well that this Application is in an early stage of litigation and that there is an Application seeking similar relief issued in Windsor. It would seem appropriate and cost effective to have the two applications proceed together.

[17] I am to conduct a holistic analysis to determine if a transfer is in the interests of justice considering the presumption that an applicant should be able to name the place of trial. (Chatterson v. M&M Meat Shops Ltd. (2014) ONSC 1897 (Div. Ct.)).

[18] In considering all the circumstances here, I conclude that the Application should be transferred to Windsor to be heard there and I so order.

Costs

[19] If the parties are unable to resolve the costs of this motion, I will consider their written submissions limited to five pages each. The submissions to be received within 30 days of the release of this endorsement. If no submissions are received on that schedule there will be no order as to costs.

“Regional Senior Justice B. G. Thomas”

Regional Senior Justice B. G. Thomas

Date: February 4, 2019.