COURT FILE NO.: CV-20-84770
DATE: 2021/04/06
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Harinder (Anney) Singh, Applicant
AND
Rani G. Tolton, Charanjit John Singh, Rajinder Kaur Singh, Gurcharan Singh and the Office of the Public Guardian and Trustee, Respondents
BEFORE: Ryan Bell J.
COUNSEL: R. Molot, for the Applicant
Charanjit John Singh, appearing on his own behalf and on behalf of Rani G. Tolton and Gurcharan Singh
No one appearing for Rajinder Kaur Singh
No one appearing for the Office of the Public Guardian and Trustee
HEARD: March 23, 2021
ENDORSEMENT
[1] Harinder (Anney) Singh[^1] applies for declarations that the Power of Attorney for personal care of Rajinder Kaur Singh dated July 20, 2018 is void and the Power of Attorney for personal care of Rajinder dated December 13, 2016 is valid and in force. Anney brings this application because, she says, there are issues requiring decisions to be made on Rajinder’s behalf and “it is clear” that Rajinder did not have capacity at the time she executed the 2018 Power of Attorney for personal care. Rajinder was assessed (twice) by a nurse practitioner consultant in August 2018. The nurse practitioner consultant diagnosed Rajinder to be suffering from senile dementia (severe).
[2] Anney is one of Rajinder’s daughters. Rajinder’s other children are the respondents Rani G. Tolton, Charanjit John Singh, and Gurcharan Singh.
[3] In the December 2016 Power of Attorney for personal care, Rajinder appointed Anney, Rani, and Gurcharan, “acting jointly or alone” to be her attorney for personal care.
[4] In the July 2018 Power of Attorney for personal care, Rajinder appointed Rani to be her primary attorney and John as the substitute.
[5] Rajinder is not represented in these proceedings. She currently resides in a retirement residence in Kanata.
[6] The Public Guardian and Trustee provided its position in writing. Having regard to what it described as “the dynamics outlined in the application record,” the Public Guardian and Trustee invites the court to consider the appointment of counsel for Rajinder under s. 3 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30.
[7] Rani, John, and Gurcharan responded to Anney’s application in writing. John also requests that s. 3 counsel be appointed for Rajinder.
[8] Anney questions the need for the appointment of s. 3 counsel. Anney points out that Rajinder was not represented by s. 3 counsel in January 2019 when Justice Kershman made an order declaring the 2016 Power of Attorney for Property to be valid and enforceable. Anney also raises a concern about the expense associated with the appointment of s. 3 counsel.
[9] Section 3 of the Substitute Decisions Act, 1992 provides:
(1) If the capacity of a person who does not have legal representation is in issue in a proceeding under this Act,
(a) the court may direct that the Public Guardian and Trustee arrange for legal representation to be provided for the person; and
(b) the person shall be deemed to have capacity to retain and instruct counsel.
(2) If legal representation is provided for a person in accordance with clause (1)(a) and no certificate is issued under the Legal Aid Services Act, 1998 in connection with the proceeding, the person is responsible for the legal fees.
[10] The basis for Anney’s application is her mother’s alleged lack of capacity at the time she executed the July 2018 Power of Attorney for personal care. The test for capacity to grant a power of attorney for personal care is set out in s. 47(1) of the Substitute Decisions Act, 1992:
A person is capable of giving a power of attorney for personal care if the person,
(a) has the ability to understand whether the proposed attorney has a genuine concern for the person’s welfare;
(b) appreciates that the person may need to have the proposed attorney make decisions for the person.
[11] The purpose of the Substitute Decisions Act, 1992 is to protect the vulnerable. Proceedings under the Substitute Decisions Act, 1992 are not a lis or private litigation in the traditional sense. As Strathy J., as he then was, wrote in Abrams v. Abrams, 2008 CanLII 67884 (ON SC), at para. 48, “[t]he interests that these proceedings seek to balance are not the interest of litigants, but the interests of the person alleged to be incapable as against the interest and duty of the state to protect the vulnerable.” Section 3 is one of a number of provisions that indicate the dignity, privacy and legal rights of the individual are to be assiduously protected: Abrams, at para. 49.
[12] Rajinder’s capacity is at the centre of this application. The material before the court discloses a family at odds regarding her personal care. In my view, this is an appropriate case for the appointment of s. 3 counsel for Rajinder.
[13] The fact that s. 3 counsel was not appointed to represent Rajinder at the time of Justice Kershman’s order in January 2019 is not relevant to my analysis. Justice Kershman was not being asked to declare an executed power of attorney invalid. Neither Rajinder nor the Public Guardian and Trustee was named as a respondent in those proceedings.
[14] There is nothing in the record to suggest that Rajinder is unable to pay the fees of counsel appointed on her behalf.
[15] I therefore order the Public Guardian and Trustee to arrange for legal representation for Rajinder pursuant to s. 3 of the Substitute Decisions Act, 1992. I also order an initial retainer of $10,000.00 be paid from Rajinder’s property for the purpose of legal representation and that the ongoing reasonable legal fees of counsel be paid from Rajinder’s property, subject to assessment or further order of this court.
[16] The Public Guardian and Trustee is entitled to its fee for reviewing the application, in the amount of $282.50, inclusive of HST. This amount is to be paid from Rajinder’s property forthwith. There shall be no other costs of this preliminary attendance.
[17] I remain seized of this application. After the Public Guardian and Trustee has arranged for legal representation for Rajinder, the parties may convene a case management conference before me.
Ryan Bell J.
Date: April 6, 2021
COURT FILE NO.: CV-20-84770
DATE: 2021/04/06
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Harinder (Anney) Singh, Applicant
AND
Rani G. Tolton, Charanjit John Singh, Rajinder Kaur Singh, Gurcharan Singh and the Office of the Public Guardian and Trustee, Respondents
BEFORE: Ryan Bell J.
COUNSEL: R. Molot, for the Applicant
Charanjit John Singh, appearing on his own behalf and on behalf of Rani G. Tolton and Gurcharan Singh
No one appearing for Rajinder Kaur Singh
No one appearing for the Office of the Public Guardian and Trustee
ENDORSEMENT
Ryan Bell J.
Released: April 6, 2021
[^1]: In this endorsement, I have referred to the parties by their first names to avoid confusion.