Court File and Parties

Court File No.: CV-16-566157 Date: 2020/02/11 Ontario Superior Court of Justice

Between: ADARSH KALIA by her Litigation Guardian, THE PUBLIC GUARDIAN AND TRUSTEE, Plaintiff

• and - RAKHI KALIA, ANN M. WOODRUFF and COPELAND MCKENNA, Defendants

Counsel: Boris Goryayev for the Plaintiff Allan Morrison and Vibhu Sharma for the Defendant Rakhi Kalia

Heard: January 31, 2020

Perell, J.

Reasons for Decision

A. Introduction and Overview

[1] The Defendant, Rakhi Kalia, brings a motion to have the action brought by the Plaintiff, Adarsh Kalia, who is Rakhi’s mother, dismissed on the grounds that Mrs. Kalia’s lawyer of record did not have authority to commence the action. In the alternative, Rakhi seeks an order to have Mrs. Kalia’s lawyer of record disqualified for conflict of interest.

[2] At the commencement of this action, when the Plaintiff, Adarsh Kalia, retained Joga S. Chahal of the law firm Bougadis, Chang LLP to sue her youngest daughter Rakhi Kalia and two other Defendants, Mrs. Kalia did not have a litigation guardian. Rakhi could not believe that her mother would sue her. Rakhi rather believed that the lawsuit had been instigated by her older sisters, Mrs. Neeti Wankhede and especially, Mrs. Meeta Ingram, the eldest sibling. Pursuant to Rule 15.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rakhi demanded that Mr. Chahal confirm that he had instructions from Mrs. Kalia to commence the lawsuit.

[3] Mr. Chahal responded and confirmed his retainer. However, still believing that Mrs. Kalia was under the sway of her sisters, Rakhi took steps to have Mr. Chahal disqualified for not being properly retained. The action proceeded nevertheless, and, subsequently, Mr. Chahal took steps to have a litigation guardian appointed for Mrs. Kalia, and the Public Guardian and Trustee was appointed.

[4] Notwithstanding that Mr. Chahal is now receiving instructions from the Public Trustee to pursue Mrs. Kalia’s claims, in the motion now before the court, Rakhi persists in seeking Mr. Chahal’s disqualification and she seeks to have her mother’s action nullified and dismissed. Thus, Rakhi has brought a motion seeking, among other things, an Order dismissing her mother’s action because Mr. Chahal and his firm allegedly did not have the authority to commence the action. In the alternative, Rakhi seeks an Order disqualifying Mrs. Kalia’s lawyers from acting in this matter.

[5] Mrs. Kalia brings a cross-motion for a timetable and for case management given that this three-year old action has not progressed beyond the closing of pleadings.

[6] For the reasons set out below, save for granting Rakhi’s request for leave to amend her Statement of Defence, I dismiss Rahki’s motion. In this regard, I note that Rakhi also sought as alternative relief an order granting leave to amend her Statement of Defence to plead the Limitations Act, 2002, S.O. 2002, c.24, Sch. B, which request was not opposed, and Rakhi also sought an Order dismissing the action as statute-barred, but this part of the motion was withdrawn and not argued.

[7] I grant the cross-motion, and I order the parties attend before me within thirty days for a 9:00 a.m. case conference to establish a timetable for a summary judgment motion or for a trial.

B. Facts

[8] Mrs. Kalia has four children: Mrs. Meeta Ingram, Mr. Vishal Kalia, Mrs. Neeti Wankhede, and Rakhi. Meeta is the oldest. Rakhi is the youngest sibling.

[9] Meeta resides in Toronto with her husband and her son. Meeta is a real estate paralegal clerk for Suncor Energy Inc.

[10] Vishal lives in India, and Neeti, and Rakhi live in Toronto.

[11] Rakhi and Mrs. Kalia moved to Toronto in 2004, where, until 2016, they lived together along with Rakhi’s husband, Rajeev Sharma, in a condominium in Toronto.

[12] When the condominium was purchased, the deed showed that Rakhi had a 99% interest and Mrs. Kalia had a 1% interest. In what for present purposes, I shall describe as odd circumstances, in December 2013, the lawyer who had acted on the purchase transaction reversed the registered ownership interests of the condominium.

[13] Then, there was another transfer in September 2014, when the property was re-conveyed and Mrs. Kalia and Rakhi became joint tenants (50-50 interest) with a right of survivorship. Ann M. Woodruff, a lawyer of the law firm Copeland McKenna, acted on the transaction that led to the joint ownership of the condominium.

[14] In November 2015, after Meeta had become aware and concerned about the conveyancing history of the condominium, Mrs. Kalia granted Meeta a Continuing Power of Attorney for Property and Personal Care.

[15] In October 2016, possibly at the urging of Meeta and Neeti, Mrs. Kalia left the condominium and began to live with Meeta. Why she left is a matter of dispute between the siblings. Rakhi says that for the last three and a half years, save for one meeting, she has been denied access to her mother.

[16] After she was no longer living with Rahki, on December 15, 2016, Mrs. Kalia commenced an action against Rakhi, Ms. Woodruff, and Copeland McKenna. In her action, Mrs. Kalia seeks a declaration that she has a 99% ownership interest and she seeks partition and sale of the condominium. In her action, Mrs. Kalia alleges that Ms. Woodruff and Copeland McKenna were negligent, and it is alleged that she was not retained by Mrs. Kalia to affect any conveyance of the condominium’s ownership. Mrs. Kalia alleges that Rakhi fraudulently schemed to appropriate her mother’s interest in the property.

[17] On December 22, 2016, Rakhi was served with the Statement of Claim. She phoned her mother. Rakhi says that her mother knew nothing about having commenced a lawsuit about the condominium.

[18] On January 5, 2017, pursuant to Rule 15.02 (1), Rakhi served Mr. Chahal’s office with a Request to Deliver Notice declaring that the action was commenced with the authorization of Mrs. Kalia.

[19] On January 13, 2017, Mr. Chahal, served a Notice of Authority to Commence Proceeding, declaring that the action was commenced with the authorization of Mrs. Kalia.

[20] On January 13, 2017, Mr. Chahal’s office responded with a notice declaring that the action had been commenced with Mrs. Kalia’s authorization.

[21] On January 20, 2017, Rakhi’s lawyers send Mrs. Kalia’s an email message inquiring about the circumstances of the creation of the retainer and whether Mrs. Kalia’s capacity had been assessed.

[22] In response to the email message, Mrs. Kalia’s lawyers demanded Rakhi deliver her Statement of Defence, which she did on January 27, 2017, In the pleading, she pleaded that Mrs. Kalia had not authorized Mr. Chahal to commence the lawsuit.

[23] Ms. Woodruff and Copeland McKenna served their Statement of Defence on February 7, 2017.

[24] Examinations for discovery were scheduled for June 7 and 8, 2017, but affidavits of documents have yet to be exchanged.

[25] In March 2017, Meeta contacted Mrs. Kalia’s lawyers and expressed concern about Mrs. Kalia’s mental capacity, which was declining significantly.

[26] Due to concerns regarding Ms. Kalia’s capacity to sue, on April 19, 2017, Mr. Chahal wrote the family physician, Dr. Kaplovitch, and requested his medical opinion as to the Plaintiff’s capacity.

[27] In letters dated April 28, 2017 and May 29, 2017. Dr. Kaplovitch concluded that: (a) Mrs. Kalia was suffering from post-traumatic distress syndrome and early onset dementia; (b) she was not capable of managing her own financial affairs and property; (c) she was not capable of independent personal care; (d) she was not capable of retaining and instructing her lawyer; and, (e) she was a “Party Under Disability” pursuant to the Rules of Civil Procedure and the Substitute Decisions Act, 1992, S.O. 1992, c. 30.

[28] On June 1, 2017, Mr. Chahal wrote to defence counsel advising that the Examinations for Discovery would have to be cancelled due Mrs. Kalia’s mental incapacity. Mr. Chahal explained that it was necessary to appoint a litigation guardian before proceeding.

[29] Meanwhile, Mrs. Kalia was assessed by Dr. Kumar, at the Centre of Addiction and Mental Health (CAMH). By letter dated September 21, 2017, Dr. Kumar advised Mr. Chahal that his initial impression was that Mrs. Kalia was suffering from cognitive impairment due to a Major Neurocognitive Disorder (Dementia).

[30] On September 26, 2017, Bougadis, Chang LLP brought a motion to have Meeta appointed litigation guardian. Master McGraw, however, adjourned Bougadis, Chang LLP’s motion sine die for the purpose of obtaining additional medical evidence. The parties agreed that a detailed instructing letter would be prepared and sent to the CAMH requesting a formal assessment report for Mrs. Kalia.

[31] However, counsel were unable to agree on the content of letter to Dr. Kumar, and on November, 9, 2017, Mr. Chahal sent his own letter to Dr. Kumar requesting an assessment.

[32] On November 13, 2017, Dr. Kumar advised Mr. Chahal that the CAMH does not provide medical assessments for legal purposes.

[33] With CAMH not available for an assessment, on December 5, 2017, Mr. Chahal’s office wrote to George Anand, who is an independent Capacity Assessor on the Capacity Assessor Roster of the Ministry of the Attorney General. Mr. Anand was asked to perform a capacity assessment of Mrs. Kalia.

[34] Although CAMH would not do an assessment for legal purposes, on December 12, 2017, Dr. Kumar wrote again to Bougadis, Chang LLP stating that it was the clinical team’s opinion that Mrs. Kalia was suffering from a Major Neurocognitive Disorder (Dementia), probably mixed in origin due to possible Alzheimer disease and vascular disease, with behavioral disturbances.

[35] On January 31, 2018, Mr. Chahal received Mr. Anand’s Letter of Opinion. Mr. Anand concluded that Mrs. Kalia was a person under a disability as she was unable to understand her role in court proceeding and was unable to appreciate the reasonably foreseeable consequences of her decision.

[36] In March 2018, Bougadis, Chang LLP brought on the motion for the appointment of a litigation guardian, and it was scheduled for May 11, 2018 before Master McGraw.

[37] On May 7, 2018, Meeta was cross-examined on her affidavit filed in the motion for the appointment of a litigation guardian. Mr. Chahal represented Meeta at the examinations.

[38] Neeta was also cross-examined on May 7, 2018.

[39] For the purposes of the motion to have Mrs. Kalia declared a person under a disability, Bougadis, Chang LLP filed an affidavit from Mr. Chahal, which he had sworn on September 14, 2017. Mr. Chahal’s office, however, did not serve and file this affidavit, which contained solicitor and client privileged information and rather planned to seek a sealing Order pursuant to Section 137 (2) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[40] On May 11, 2018, Master McGraw advised counsel in Motions Court that he would not hear Bougadis, Chang LLP’s motion, but that he would address this matter by way of a Case Conference. As the motion did not proceed on May 11, 2018, Mr. Chahal’s affidavit was not filed with the Court.

[41] After the case conference, the parties consented to an Order, declaring the Plaintiff a party under disability in relation to the within litigation. However, no litigation guardian was appointed.

[42] At the case conference, Rakhi had vigorously opposed the appointment of Meeta as litigation guardian, and she withdrew from being litigation guardian. Bougadis, Chang LLP were not aware of anyone else willing to be appointed litigation guardian, and, therefore, the law firm brought a motion to have the Public Guardian and Trustee appointed litigation guardian for Mrs. Kalia.

[43] The motion to appoint the Public Guardian and Trustee as the Litigation Guardian proceeded. It proceeded unopposed and on August 2, 2018. Master McGraw ordered that the Public Guardian and Trustee be appointed as the litigation guardian.

[44] The Public Trustee and Guardian then retained Bougadis, Chang LLP to represent Mrs. Kalia. Mr. Chahal and the law firm of Bougadis, Chang LLP continue to act as Mrs. Kalia’s lawyers.

[45] In December 2018, Rakhi brought a motion to have Bougadis, Chang LLP disqualified as lawyer of record.

[46] On February 7, 2019, Mr. Chahal swore an Affidavit in response to the Defendant Kalia’s motion, confirming that this proceeding was commenced with Mrs. Kalia’s authorization.

[47] On February 15, 2019, Mr. Chahal was cross-examined.

[48] On February 28, 2019, at Rakhi’s request, Master Abrams adjourned the motion.

[49] After telephone case conferences on March 15, 2019 and April 16, 2019 with Master Abrams, Rakhi’s motion was rescheduled to be made returnable before a judge.

[50] On May 13, 2019, counsel attended in Civil Practice Court, and the motion was made returnable on October 4, 2019.

[51] On July 30, 2019, Mrs. Kalia brought a cross-motion for the court to fix a timetable and that the action be assigned for case management. Mr. Chahal swore an affidavit dated July 30, 2019 in support of the motion.

[52] In September 2019, Rakhi brought on her motion supported by her affidavit dated September 30, 2019 and an affidavit from David Pak, a student-at-law at Morrison Law, Rakhi’s lawyer of record. The cross-motion was also brought on and Mr. Chahal delivered an affidavit dated September 24, 2019.

[53] The motions were made returnable on October 4, 2019 but no judge was available on October 4, 2019 and the motion and the cross-motion came on for argument on January 31, 2019.

[54] Before the return of the motion, Mr. Chahal, swore an affidavit dated Nov. 28, 2019, in which he confirms yet again that this proceeding was commenced with the authorization of Mrs. Kalia.

[55] Rakhi delivered another affidavit, this one dated January 20, 2020 and also an affidavit dated January 17, 2020 from Rafat Kalam who was a neighbour of Rakhi and Mrs. Kalia.

C. Discussion and Analysis

[56] Rule 15.02 provide a procedure for a party to determine whether a lawyer purporting to act for another party is acting with proper authority. Under this rule, a party is entitled to disclosure of whether the other party authorized its lawyer to commence the proceeding. Under rule 15.02(1), a person who is served with an originating process may deliver a request that the lawyer who is named in the originating process as the lawyer for the plaintiff or applicant deliver a notice declaring whether he or she commenced or authorized the commencement of the proceeding or whether his or her client authorized the commencement of the proceeding. See Superior Material Handling Equipment Inc. v. Erwin, [2003] O.J. No. 3096 (S.C.J.); Suellothan Bauchemie (Canada) Ltd. v. Raanani Estate, [2003] O.J. No. 2241 (S.C.J.); Bank of Montreal v. Vola (1980), 31 O.R. (2d) 60 (H.C.J.). Under rule 15.02(2), if the lawyer fails to deliver a notice in accordance with the request, the court may, (a) order the lawyer to do so; (b) stay the proceeding; and (c) order the lawyer to pay the costs of the proceeding. Rule 15.02 does not set out what is required as proof that the client authorized the commencement of the proceeding and what is required will depend upon the circumstances of the case. See Westover v. Jolicouer, 2017 ONSC 4544.

[57] Under rule 15.02(3), if the lawyer declares that he or she did not commence or authorize the commencement of the proceeding, the court may, on motion without notice, stay or dismiss the proceeding. Under rule 15.02(4), if a lawyer has commenced a proceeding without the authority of his or her client, the court may, on motion, stay or dismiss the proceeding and order the lawyer to pay the costs of the proceeding. A lawyer who brings an action without authority (Cini v. Micallef (1987), 60 O.R. (2d) 584 (H.C.J.); Dumart Parking Co. v. Dumart (1927), 61 O.L.R. 478 (H.C.J.)) or who brings an action without fully informing the client of his or her exposure to costs if the proceedings are unsuccessful may be held personally liable for costs. See Attis v. Canada (Minister of Health), 2010 ONSC 4508, rev’d on other grounds Attis v. Canada (Minister of Health), [2011] O.J. No. 6222 (C.A.); Dumart Parking Co. v. Dumart (1927), 61 O.L.R. 478 (H.C.J.); Scribner v. Parcells (1890), 20 O.R. 554 (H.C.J.).

[58] In 2015, Mrs. Kalia gave her eldest daughter Meeta a power of attorney, and this power of attorney would have empowered Meeta to act as her Mother’s agent in late 2016 to instruct Mr. Chahal and Bougadis, Chang LLP to commence proceedings in which Mrs. Kalia could sue Rakhi, Ms. Woodruff, and Copeland McKenna. This is most likely what occurred in the immediate case and Mr. Chahal would have been properly authorized to commence the action.

[59] If there was no power of attorney, or if Meeta did not purport to exercise it, and instead she had just accompanied Mrs. Kalia to an appointment to retain Mr. Chahal and his law firm Bougadis Chang, LLP, and Mrs. Kalia decided to sue Rakhi, Ms. Woodruff and Copeland McKenna, once again, Mr. Chahal would have been properly authorized to commence the action against Rakhi, Ms. Woodruff and Copeland McKenna.

[60] In other words, whether or not Meeta was involved in instigating Mrs. Kalia’a action against Rakhi, Mr. Chahal was authorized to commence the action. In any event, I find as a fact that Mr. Chahal was authorized to commence the action, and there is no merit to Rakhi’s motion.

[61] There is nothing unusual or wrong in a litigant relying on a family member to assist him or her in retaining a lawyer and in obtaining legal advice. Parents frequently help their children, even adult children, in their dealings with lawyers, and the child’s lawyer will be under no misapprehension that the lawyer is acting for the child not the parent. The lawyer does not have a joint retainer. The lawyer simply is acting for a client who is being assisted by a family member. Conversely, parents, particularly elderly ones, are frequently assisted by their adult children when the parent needs the services of a lawyer. Once again, the lawyer acting for the parent who is being assisted by the adult child will be under no misapprehension that he or she is acting for the adult parent and not the adult child. There is no joint retainer and not conflict of interest for the lawyer.

[62] In the immediate case, Rakhi is correct in thinking that Meeta was involved either as Mrs. Kalia’s agent or as Mrs. Kalia’s assistant in retaining and giving instructions to Mr. Chahal, but Rakhi is incorrect in thinking that Mr. Chahal was not authorized to commence the proceedings.

[63] After Mr. Chahal’s office responded with a notice declaring that the action had been commenced with Mrs. Kalia’s authorization, that should have been the end of the matter about the law firm’s authorization.

[64] If Rakhi believed that Meeta’s power of attorney should be set aside or if she believed that Mrs. Kalia did not have the legal capacity to give instructions, then the appropriate response would have been proceedings under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 or a motion to have a litigation guardian appointed.

[65] As it happens, a very appropriate litigation guardian was subsequently appointed, and there is now another agent to authorize Mr. Chahal’s retainer and to instruct him in the action in which Mrs. Kalia is the Plaintiff and Rakhi is one of the Defendants. Once again, Mr. Chahal has a proper retainer and proper authorization, and there is no basis or reason to stay or dismiss the proceeding.

[66] Mr. Chahal and his law firm have never had a conflict of interest in meeting with Meeta or in preparing an affidavit from her or in attending at Meeta’s cross-examination. They were not retained by Meeta, and throughout, Mr. Chahal has been acting for Mrs. Kalia. I repeat that it is not uncommon and not inappropriate to allow a client to be assisted by other family members even if other family members are disgruntled by the assistance.

[67] In the immediate case, there are serious issues about the conveyancing of the condominium, and those issues need to be resolved. Rakhi’s stubbornness in refusing to accept that Mr. Chahal was properly authorized to have these issues litigated and her obstinance in persisting with an effort to have the action stayed or dismissed after the Official Guardian and Trustee was appointed has thwarted any progress in this action. The circumstances cry out for some case management, at least, to the extent of establishing a timetable to get the action to a summary judgment motion or to a trial.

[68] I therefore dismiss Rakhi’s motion save for granting her leave to deliver an amended Statement of Defence. I grant Mrs. Kalia’s cross-motion. I order the parties to attend before me within thirty days for a 9:00 a.m. case conference to establish a timetable for a summary judgment motion or for a trial.

D. Conclusion

[69] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Mrs. Kalia’s submissions within twenty days of the release of these Reasons for Decision, followed by Rakhi’s submissions within a further twenty days.

Perell, J.

Released: February 11, 2020