COURT FILE NO.: CV-13-2155

DATE: 2021 07 14

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SULOCHANA SHANTHAKUMAR v. ROYAL BANK OF CANADA ET. AL.

BEFORE: TRIMBLE J.

COUNSEL: Counsel for Plaintiff/Responding Party: Callahan, Peter M.

Counsel for Defendant/Moving Party (RBC): Bowden, Gregory W.

Counsel for Defendant/RCMP: Watt, Karen

Counsel for Defendant, Public Guardian & Trustee: Chiang, Jamie

HEARD: 26 May 2021, by Zoom, Brampton Virtual Courtroom 127

ENDORSEMENT

The Motion

1The Defendants, the Royal Bank of Canada (RBC), Gurrappadi, Sykes, Radhakrishan, and Wilson, bring this motion to remove Nitish Roy as the Plaintiff's litigation guardian.

The Litigation

2This action was commenced in 2013. The Plaintiff claims against the defendants for damages arising from the arrest and detention on 4 October 2010 of the Plaintiff and her husband on several charges, including fraud. The charges were eventually dismissed. The Plaintiff claims malicious prosecution, defamation, and conspiracy, among other things.

3In July 2018, the Plaintiff was diagnosed with dementia. In April 2019 the Defendants were advised of the fact. Mr. Roy was appointed as litigation guardian.

Positions of the Parties

4In their Notice of Motion, the Defendants seek to have Mr. Roy removed as litigation guardian because:

(a) Roy and the Plaintiff both have been involved in dozens of lawsuits, including actions where they took turns suing each other;

(b) At least one of those disputes involving the Plaintiff and the litigation guardian appears to have been manufactured by them to protect the assets of the Plaintiff and her husband from the husband's creditors;

(c) The above-mentioned lawsuit between Roy and the Plaintiff ended with a large judgment in Roy's favour, but with no sign that he was ever paid nor that he attempted to enforce the judgment; the judgment appeared to serve no purpose other than to discourage the creditors of the Plaintiff and her husband;

(d) The litigation between Roy and the Plaintiff is part of a pattern followed by both of them involving dozens of lawsuits which end, for the most part, in dismissals for delay or on consent;

(e) Roy himself may be medically unfit to act as litigation guardian due to his advanced age, serious vision problems and a recent stroke;

(f) At his examination Roy was unable to recall various lawsuits to which he is a party, his inability to recall persisting even when shown documents from the lawsuit with his name on them; and

(g) Roy exhibits a settled hostility towards lawyers who have assisted him in the past.

5RBC seeks to have the office of the Public Guardian and Trustee (PGT) appointed as the Plaintiff's litigation guardian.

6Mr. Roy takes the position that he should not be removed. On June 5, 2019, Mr. Roy filed an affidavit with the court in which he consented to act as litigation guardian for the Plaintiff in this proceeding, confirmed that he had given written authority to a named lawyer to act in the proceeding, set out his relationship to the Plaintiff; stated that he has no interest in this proceeding adverse to that of the Plaintiff, and acknowledged that he had been informed of his liability to pay, personally, any costs awarded against him or against the Plaintiff. Mr. Roy says that all of the allegations that RBC makes are inflammatory and irrelevant.

7Mr. Roy filed an Affidavit of the Plaintiff's husband saying that he is ready, willing and able to act as litigation guardian and seeks to be appointed instead of the PGT, should I decide to discharge Mr. Roy. The Plaintiff’s husband is already his wife's guardian for property and personal care. Mr. Roy does not seek to have the Plaintiff's husband appointed.

8The PGT takes no position as to whether it is appointed litigation guardian.

9I accept Mr. Roy's characterization of the issue on the motion set out at paragraphs 15 and 16 of his factum, namely that a) RBC seeks to have Mr. Roy removed because he is a judgment creditor to the Plaintiff and therefore is in an irreparable conflict of interest as exemplified by the delay in this case, and b) that Mr. Roy denies all of this.

Applicable Law

10Rule 7 governs the role of a Litigation Guardian.

11Rule 7.01 provides that a proceeding shall be commenced, continued, or defended on behalf of a party under disability only by a litigation guardian. The purpose of this Rule is to protect the interests of the person under a disability and the integrity of the judicial process for all participants, including the Court (see: Soriano v. Laberakis, 2006 CanLII 3973 (ON SCDC), at para. 9; Matthews v Hamilton Civic Hospitals, 2005 CanLII 63714 (ONSC), at para. 7).

12Rule 7.05(2) sets out the obligation of a litigation guardian, namely;

A litigation guardian shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests.

13Rule 7.06(2) outlines the Court's power to remove or substitute a litigation guardian. It reads:

(2) Where it appears to the court that a litigation guardian is not acting in the best interests of the party under disability, the court may substitute the Children's Lawyer, the Public Guardian and Trustee or any other person as litigation guardian.

14The Court's power is discretionary. The requirement that a guardian act in the best interests of the litigant requires that the guardian be indifferent to the outcome of the litigation. A conflict of interest is an example of a lack of such indifference, although it must be real conflict, not merely an appearance of one (see: Shemesh v. Goldlist, 2008 CanLII 19228 (ONSC) at paras. 15, 25-26, 34-37; Shady Saley v. Mohammed Salege et al., 2020 ONSC 5631).

15A guardian's personal interest in the outcome of the litigant's litigation, either as a co-litigant, or as a person who stands to benefit directly from the litigation, are examples of a lack of such indifference provided that the guardian's interest is adverse to the litigant's (see: Berman v Schwartz, 2012 ONSC 6851, paras. 16, 17 and 30; Slark (Litigation Guardian of) v. Ontario, 2010 ONSC 1726 (Ont SCJ), para. 53; Gronnerud, para. 20; Shady Saleh, supra).

Result

16The motion is granted. Mr. Roy stands is a conflict of interest to the Plaintiff, having obtained a judgment against her which appears to remain unsatisfied. The PGT shall be appointed as litigation guardian for the Plaintiff.

Analysis

Mr. Roy as a Judgment Creditor of the Plaintiff

17One of the many grounds advanced to remove Mr. Roy as litigation guardian is that he is a judgment creditor of the Plaintiff. That is a conflict of interest.

18In May 2010, Mr. Roy commenced a mortgage enforcement action against the Plaintiff's husband as mortgagee and the Plaintiff as guarantor (Court file number CV-10-403598). Mr. Roy commenced this action against the Plaintiff and her husband notwithstanding that on 19 July 2000 the Plaintiff's husband was petitioned into bankruptcy. At the time of the mortgage action, the Plaintiff's husband was still an undischarged bankrupt. Mr. Roy obtained leave from the trustee to bring the action.

19Default judgement was granted on 22 November 2010 in the sum of $201,971.90, bearing prejudgment interest at 4% from 1 May 2010 to the date of the judgement and costs of $18,464.61. Post judgement interest also ran at 4%.

20In a Writ of Seizure and Sale and supporting affidavit, both dated 9 January 2012, Mr. Roy stated that the Plaintiff had made a payment on 5 August 2011 of $127,043.35 to the credit of the judgement, leaving the outstanding amount of $85,154.41 on the judgement and costs of $18,464.61, both bearing interest at 4% as of 5 August 2011, in addition to the costs of enforcement.

21The Plaintiff, in 2012, brought an action to rectify the 22 November 2010 default judgement in Court file number CV-10-403598, by reducing the amount owed.

22It appears that when the Plaintiff brought this action in 2013, the 22 November 2010 judgement and action to rectify it were still outstanding. It appears that the action was still alive in 2018, after which the Plaintiff had declined into dementia.

Are the Minutes of Settlement Admissible

23Mr. Roy’s counsel says that the 22 November 2010 judgement and the rectification action were both settled by Minutes of Settlement dated 20 March 2018 (Plaintiff's Compendium tab 15) in which the parties acknowledged that no monies were owing by one to the other, and in particular, the Plaintiff owed no monies to Mr. Roy under the default judgement.

24The success of this motion depends on the admissibility of the 20 March 2018 Minutes of Settlement.

25At the outset of the argument of this motion I asked the parties to address in their submissions whether the Minutes of Settlement were admissible on this motion. I asked whether the Minutes of Settlement were properly identified and marked at any cross-examination for the motion or were identified by any party and marked in any other proceeding under oath. Since the Plaintiff's husband was the witness to the Minutes of Settlement I asked if the Minutes had been proved through him on a cross-examination.

26Following this discussion, and since I raised this issue at the outset of the motion, I invited counsel to consider the question and provide written submissions on the admissibility of the Minutes of Settlement and timetabled those submissions.

How did the Minutes of Settlement arise in this litigation?

27In paragraph 17 of his affidavit sworn in opposition to this motion, Mr. Roy said that any legal proceedings outlined by RBC involving he and the Plaintiff were over 10 years old and involved business relations that were resolved amicably.

28Mr. Roy’s cross-examination on his affidavit filed in respect of this motion was conducted by Zoom videoconference. Each witness and each counsel were in separate premises. Mr. Roy was asked a multitude of questions about other litigation he had with the Plaintiff. Mr. Roy insisted that he had no memory of ever suing the Plaintiff or obtaining judgement against her, even when he was referred to the default judgement.

29During the course of that cross-examination, Mr. Roy's counsel advised that the default judgement and the rectification action had been settled and Minutes of Settlement had been signed. He had a hard copy of those minutes with him during the cross-examination but was unable to share them on the Zoom conference with his client and opposing lawyers. Mr. Roy's counsel agreed to provide a copy of the Minutes of Settlement. RBC's counsel explored the Minutes of Settlement with Mr. Roy with a few preliminary, general questions. Mr. Roy said he did not remember seeing any Minutes of Settlement, or that any case was settled because he had never brought action against the Plaintiff.

30Mr. Roy’s counsel argued that because the Minutes of Settlement were produced pursuant to a solicitor's undertaking given during the cross-examination of the client and there was no objection taken to the question, it could be answered by the lawyer and that answer would bind the client unless, before the conclusion of the examination, the client repudiated, contradicted, or qualified the answer (Rule 31.08). Because counsel advised during the examination that the Minutes existed, undertook to produce them, in fact produced them, and Mr. Roy never repudiated, contradicted or qualified counsel's answer, the undertaking has the same force and effect as any question answered under oath during the cross-examination. The Minutes are properly admissible on this motion.

31RBC says that the Minutes are not admissible. Rule 31.08, which deals with the witness adopting counsel's answer, relates to an Examination for Discovery, not cross-examinations. In any event, Mr. Roy never adopted his counsel's answers. Rather, he denied that he ever had a dispute with the Plaintiff or that the Minutes of Settlement existed. Mr. Roy's lawyer did not re-examine Mr. Roy to refresh Mr. Roy's memory.

32The Minutes of Settlement are not admissible.

33Subject to notices being provided under the Evidence Act or the Rules, or a document being admissible under any statutorily approved method of proving a document, at any trial or motion, a document must be authenticated in the usual course. Producing a document does not make it admissible.

34In Warrant Industrial Feldspar Co. Ltd. v. Union Carbide Canada (1986), 1986 CanLII 2683 (ON SC), 54 O.R. (2d) 213 (HCJ), Trainor J., heard an appeal from a lower judge's dismissal of a motion for security for costs. One of the alleged errors was that the motions judge based his decision on certain documents which were not properly before him because they were filed by the plaintiff without being included in an affidavit as required by R. 39.01(1).

35On the question of the admissibility of documents, Trainor J., Said:

Lastly, it has been argued by the defendants that certain documents filed by the respondent were not properly before the court because they were not included in an affidavit, as required by rule 39.01(1), which provides as follows:

39.01(1) Evidence on a motion or application may be given by affidavit unless a statute or these rules provide otherwise.

The plaintiff takes the position that rules 37.06(c), 37.10(3) and 37.10(4) provide for the admissibility of documentary evidence, on a motion, otherwise than by affidavit. The plaintiff argues that documentary evidence not included in an affidavit will be admissible on a motion if it is included in the plaintiff 's motion record. I cannot accept this argument. The proper practice, in adducing documentary evidence on a motion, is to exhibit the documents to an affidavit or to introduce the document into evidence upon the examination or cross-examination of a witness pursuant to rule 39.03. Although there are various statutory provisions allowing certain documents to be proved by the use of a certified copy, absent such a provision, documents should be proved by affidavit or oral evidence and cannot be simply filed with the court for use on a motion.

36In Slough Estates Canada LTD V. Federal Pioneer Ltd. (1994), 1994 CanLII 7313 (ON SC), 20 O.R. (3d) 429 (Ont. Gen. Div.), an insurer, on its summary judgement motion with respect to its duty to defend, sought to rely on records, memoranda, experts reports, and correspondence that it had appended to its affidavits, and had produced for inspection. The affiant was neither the author nor the recipient of most of those documents, and neither the author nor the recipient of those documents provided first-hand evidence relating to the documents' preparation, delivery, receipt or use.

37The court held that the mere production or disclosure of a document was not an admission of its relevance or admissibility. Documentary evidence on a motion had to be proved by affidavit or oral evidence. It could not simply be filed with the court for use on a motion. While R. 20.02 contemplates the admission of hearsay where the source of the information and fact of belief are specified in the affidavit, R. 20.02 does not contemplate the admission on a motion of otherwise inadmissible evidence.

38I disagree with Mr. Roy's analysis that because the Minutes of Settlement were produced in response to a solicitor's undertaking in answer to a question at the cross-examination, which the client did not gainsay, makes the Minutes admissible. They still need to be proved through a witness. No witness proved those Minutes.

39While the foregoing is sufficient to dispense with the issue of the admissibility of the Minutes of Settlement, I have another concern with the Minutes.

40Even if the Minutes of Settlement were properly proved through a witness, I have concerns about their reliability. In his affidavit at paragraph 11, Mr. Roy says that on or about 20 July 2018 the Plaintiff was diagnosed with dementia and required assistance with respect to personal care and help with her financial matters. Surely the signs of dementia were present before 20 July 2018 that led to the appointment to have it investigated. The Minutes of Settlement were signed four months before the diagnosis was made. No medical evidence was provided with respect to when the onset of the symptoms that led to the diagnosis began. The signing of the Minutes and the declaration of incapacity raises concerns about the Plaintiff's capacity at the time she signed the Minutes of Settlement.

41Absent admissible Minutes of Settlement, the evidence persuades me that there is an adversity of interest between Mr. Roy and the Plaintiff in that he is an unsatisfied judgement creditor of the Plaintiff. Therefore, Mr. Roy lacks the indifference that the rule requires in terms of the outcome of the litigation. He has every interest in how the litigation proceeds and in its outcome. His own interest is in recovering money for the Plaintiff so that he can satisfy his outstanding judgement. This is a conflict of interest.

Other Bases for Replacing Mr. Roy

42With respect to the other grounds, RBC advances to have Mr. Roy declared unfit to be a litigation guardian, I do not find RBC has met his burden.

Who Should Replace Mr. Roy?

43On the basis of all of the evidence, I am satisfied that the only entity completely indifferent to the outcome of the litigation is the PGT.

44The Plaintiff's husband has been the attorney for property and personal care for the Plaintiff since 29 February 2016. Therefore, he, has had control of this action since his appointment; yet the action has been stagnant until recently. I fail to see how this is in keeping with Mr. Roy's obligation under R. 7.05(2) as a litigation guardian. I also fail to see how it is in keeping with the husband’s fiduciary obligations to the Plaintiff in his role as attorney for property and personal care.

Order

45The order of appointment proffered by the PGT in its email of 21 May 2021 shall issue.

46The timetable imposed by LeMay J., dated 16 November 2020, is amended as requested in the PGT's 21 May 2021 email.

Costs

47It the parties cannot agree to costs, I will decide the issue based on written submissions. The parties shall provide written submissions on who pays whom costs and in what amount. These submissions are limited to 3 double spaced, typewritten pages, excluding bills of costs. The Defendant(s) shall serve and file their submissions by 4 pm, 30 June 2021, and the Plaintiff, his by 4 pm, 13 August 2021. There will be no right of reply.

Trimble J.