Court File and Parties

Barrie Court File No.: CV-19-703 Date: 2021-08-24 Ontario Superior Court of Justice

Between: The Public Guardian and Trustee, Applicant – and – Marlene McIntyre and Sharon Clegg, Respondents

Counsel: S. Jones, for the Applicant E. Brohm, for Marlene McIntyre S. Clegg, Unrepresented

Heard: June 7, 2021, Via Zoom

Reasons for Decision

Casullo J.:

Administrative Note

The recording of this decision produced no distinguishable audio, and thus playback was unavailable. I have relied on my memory of the hearing, my handwritten notes, and the court reporter’s monitor notes in drafting these reasons.

Overview

[1] The Public Guardian and Trustee (“PGT”) has brought an application seeking the following:

1. An Order compelling the Respondent, Sharon Clegg, to commence an application to pass her accounts as attorney for property for Marlene McIntyre, within 60 days;

2. An Order pursuant to subsection 47(7) of the Substitute Decisions Act, 1992 (“SDA”):

(a) Suspending the power of attorney of all the property of Ms. McIntyre held by Ms. Clegg pending the determination of Ms. Clegg’s application to pass her accounts;

(b) Appointing the PGT to act as guardian of property for Ms. McIntyre pending the determination of Ms. Clegg’s application to pass her accounts;

(c) Authorizing the PGT to obtain all records, including health records with respect to Ms. McIntyre, from any source.

3. In the event Ms. Clegg failed to commence an application to pass her accounts, an Order:

(a) Terminating the Enduring Power of Attorney for Property for Ms. McIntyre held by Ms. Clegg, and removing Ms. Clegg as attorney for property for Ms. McIntyre; and

(b) Appointing the PGT as guardian of property for Ms. McIntyre pursuant to ss. 22 and 26 of the SDA.

[2] On November 12, 2019, Mulligan J. ordered Ms. Clegg to commence an application to pass her accounts as attorney for property for Ms. McIntyre within 60 days.

[3] Ms. Clegg failed to commence an application to pass her accounts. Accordingly, the only issue left to be determined pursuant to the application was whether (a) Ms. Clegg’s Enduring Power of Attorney should be terminated; and (b) the PGT should be appointed Ms. McIntyre’s guardian of property.

[4] At the outset of the hearing, however, PGT counsel advised it was no longer asking the court to set aside the Enduring Power of Attorney and appoint the PGT as Ms. McIntyre’s guardian of property. Instead, the PGT sought court approval of a trust agreement (“the Trust Agreement”) that would see the PGT gain control of certain of Ms. McIntyre’s assets.

[5] While not part of the application, the PGT later asked the Court to order that Ms. McIntyre undergo a capacity assessment. This relief was granted on February 11, 2020, and the assessment took place virtually on June 15, 2020. The assessor found that Ms. McIntyre did not have the capacity to grant a power of attorney.

The Respondents

[6] Ms. McIntyre lives in Barrie, Ontario, with her common law husband, who I understand has capacity but does not wish to get involved.

[7] Ms. McIntyre participated in the hearing, with the aid of her adult support person. Ms. McIntyre was represented by counsel pursuant to s. 3 of the SDA.

[8] Sharon Clegg is retired social worker and advocate for individuals with disabilities. She is a long-time, close family friend of Ms. McIntyre. Ms. Clegg appeared on her own behalf, seeking an adjournment to retain counsel.

[9] Given that the Application was issued in April 2019, and over $50,000 of Ms. McIntyre’s money was sitting in a trust account pending the outcome of the hearing, it was in the interests of justice that any further delay be avoided. Hence, the request for an adjournment was denied.

[10] None of the affiants were cross examined, and the entirety of the written evidence remains untested.

Background

[11] The history of the relationship between the Respondents provides important context to my decision. Ms. McIntyre, or Micki to her friends, was born on March 31, 1946. Owing to developmental delays, she spent many years in provincially run institutions, including Huronia in Orillia, and D’Arcy Place in Cobourg.

[12] Ms. Clegg met Ms. McIntyre in 1972, while Ms. Clegg was a college student working at D’Arcy Place, and Ms. McIntyre was a resident. Ms. McIntyre had no family of her own, and was going to be alone for Christmas. Ms. Clegg invited Ms. McIntyre to her home, and thus began a friendship that has lasted for almost 50 years. Ms. McIntyre became part of the Clegg clan, and over the years has attended family functions on a regular basis, including weddings, funerals, reunions, and holidays. According to her affidavit, Ms. McIntyre thinks of Ms. Clegg as her sister.

[13] Appalled by the living conditions at D’Arcy Place, in the late 1970s Ms. Clegg began advocating on Ms. McIntyre’s behalf. Ms. Clegg was ultimately successful in having Ms. McIntyre discharged into community living, where she has lived independently for over 40 years, assisted by various social agencies.

[14] Ms. Clegg states she did not interfere with Ms. McIntyre’s autonomy or independence. Ms. McIntyre was capable of, and did make, all of her own decisions. She receives ODSP and OAS, and has approval for $13,800 of funding per year through Passport Funding. She is a client of CATUPLA, a community support service for persons with disabilities. CATULPA budgets the Passport Funding, monitoring the expenses submitted by third parties under these funds.

[15] Ms. McIntyre looks after all her own banking (she cannot remember her PIN number, but staff at the bank assist her). Her pension cheques go into her bank account, and she uses this money to pay for rent and groceries.

2013 Grant

[16] In or around 2013 Ms. McIntyre underwent a leg amputation and spent four months in hospital. She was quite ill, and her adult support person at the time, a Ms. Pincus, thought she should have a power of attorney for property. When asked, Ms. Clegg agreed to act in that capacity.

[17] Ms. Pincus provided Ms. Clegg with a blank Enduring Power of Attorney, which was then completed on December 6, 2013 (“2013 Grant”).[^1] Ms. Clegg was appointed jointly with Ms. Mary Testa, who Ms. McIntyre knew as Aunt Mary. Stephen Clegg, Ms. Clegg’s brother, was named the alternate power of attorney for property. Just as she views Ms. Clegg as her sister, Ms. McIntyre thinks of Mr. Clegg as her brother.

[18] The PGT seeks to set aside the 2013 Grant on two grounds:

a) Ms. McIntyre likely did not have the requisite capacity; and

b) the witnesses, Robert Eaton, Ms. McIntyre’s husband, and Ms. Testa, the joint attorney for property, were improper.

Class Action

[19] Ms. Clegg did not just champion Ms. McIntyre’s discharge from the province’s institutional system. She was also Ms. McIntyre’s litigation guardian when Ms. McIntyre was the lead plaintiff in a class action lawsuit against the province. The lawsuit alleged that the province failed to properly care for and protect those living in the institutions. There were allegations of emotional, sexual and physical abuse. The lawsuit claimed that once inside, residents’ lives were “dictated, controlled and provided for” by the province, and “the opportunities to make choices and provide any input into their daily lives were extremely limited if non-existent.”[^2]

[20] In 2016 the Superior Court of Justice approved a $35.9-million settlement for hundreds who were abused between 1963 and 1999: McIntyre (Litigation guardian of) v Ontario, 2016 ONSC 2662.

[21] In 2017 Ms. McIntyre received an award of approximately $82,000.

The PGT Becomes Involved

[22] A lawyer at CATUPLA contacted the PGT after Ms. McIntyre received the settlement. Despite never having met Ms. McIntyre, in his opinion Ms. McIntyre was vulnerable and possibly unable to manage her property. The lawyer told the PGT that Ms. McIntyre’s friend, who did not have a power of attorney, was taking advantage of her. The lawyer also said (a) Ms. McIntyre did not have any other supports; (b) the friend had deposited about $40,000 of the settlement funds into her own account and was using the money for her own benefit; and (c) the friend was charging payment from Ms. McIntyre’s Passport Funding for services provided to Ms. McIntyre.

[23] This friend was Ms. Clegg.

[24] A worker at CATULPA advised the PGT that Ms. McIntyre banked at CIBC in Barrie, and that her family doctor was Dr. J. Strangway.

[25] The PGT spoke with Ms. McIntyre on August 21, 2018. When the PGT expressed concern that Ms. Clegg was mismanaging her finances, Ms. McIntyre said she had no problem with how Ms. Clegg was managing her money. She would not name the facility where her money was invested, for fear someone might take it.

[26] That same day the PGT spoke with Ms. Clegg, who confirmed she was Ms. McIntyre’s power of attorney for property and personal care. She confirmed she was managing Ms. McIntyre’s settlement. When asked, she was not comfortable divulging where the money was invested.

[27] Based on this information, the PGT opened an investigation.

[28] On August 29, 2018, the PGT spoke with Dr. Strangway, who advised that while Ms. McIntyre had not been officially diagnosed as incapable of managing her property, he described her as very slow and definitely incapable. He thereafter provided a letter indicating that Ms. McIntyre is “extremely mentally handicapped, cannot make any decisions on her own, and is incapable of it.” He concluded that Ms. McIntyre “is for sure 100% incapable of making any of her own decisions and to manage property or personal care.”

[29] Dr. Strangway was not prepared to say whether she had the requisite capacity to grant a power of attorney in 2013. However, his opinion was that Ms. McIntyre’s capacity had not changed over time, and it remained as it had been since she was a child.

2019 Grant

[30] Exhibited to Ms. McIntyre’s affidavit is a 2019 Power of Attorney for Property, in which Ms. McIntyre revokes prior delegations and appoints Ms. Clegg as her power of attorney for property, with Mr. Clegg as her alternate attorney (“2019 Grant”).

[31] The 2019 Grant is dated November 8, 2019, after the application was commenced. A rationale for the second grant was not provided during the hearing. However, it is fair to infer from the circumstances that the 2019 Grant was drafted in response to the PGT’s stated goal of having the 2013 Grant declared invalid.

Capacity Assessment

[32] Instead of accepting the two power of attorney grants as a true reflection of Ms. McIntyre’s wishes, the PGT asked the court to override Ms. McIntyre’s right to dignity and privacy and undergo a capacity assessment.[^3] Ms. McIntyre had lived her entire 74 years without requiring a capacity assessment. She was not flying under the radar and in need of intervention. She was very much in the eye of those who provided services to her. She also had a husband. If those parties were concerned for her financial vulnerability, they would have raised an alarm.

[33] The assessor concluded that while Ms. McIntyre “possesses a cursory understanding of the meaning of a power of attorney for property, her comprehension of the scope, meaning and risks associated with executing these documents are more complex and abstract in nature and exceed her comprehension capacity. It is, therefore, my opinion that Ms. McIntyre does not meet the legal criteria to assign/revoke a power of attorney for property.”

[34] The assessor also determined that Ms. McIntyre was incapable of making financial decisions.

Issues

[35] The only issue for the court to determine is whether to approve the Trust Agreement. However, in my view the more pertinent question is whether the Trust Agreement is necessary in the first place. In other words, if Ms. McIntyre was capable of making either the 2013 Grant or the 2019 Grant, the Trust Agreement is unwarranted.

Discussion

[36] There is a presumption of capacity for individuals who are over the age of majority: s. 2(1) of the SDA.

[37] The legal test for capacity is set out in s. 8(1) of the SDA:

A person is capable of giving a continuing power of attorney if he or she,

(a) knows what kind of property he or she has and its approximate value;

(b) is aware of obligations owed to his or her dependants;

(c) knows that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney;

(d) knows that the attorney must account for his or her dealings with the person’s property;

(e) knows that he or she may, if capable, revoke the continuing power of attorney;

(f) appreciates that unless the attorney manages the property prudently its value may decline; and

(g) appreciates the possibility that the attorney could misuse the authority given to him or her.

[38] It is trite law that the capacity to execute a power of attorney is, and must be, relatively low compared to other forms of capacity. Acknowledging an individual’s capacity to control their own affairs is to give effect to their human dignity.

[39] The goal of the SDA is to allow individuals to have control over how their affairs will be conducted in the event of their incapacity. A person may be capable of making a basic decision yet incapable of making a complex decision. As Benotto J. wrote in Calvert (Litigation Guardian of) v. Calvert, [1997] O.J. No. 553, 32 O.R. (3d) 281, at paras 52 and 57:

A person's right of self-determination is an important philosophical and legal principle.

The courts are slow to take away a person's right to decide. This is reflected in the low threshold the courts have set for the determination of capacity. … A person who suffers from a cognitive impairment is competent as long as the act in question takes place during a lucid interval.

[40] There is no evidence before the court as to Ms. McIntyre’s capacity to make the 2013 Grant. However, considering Dr. Strangway’s views on the static nature of Ms. McIntyre’s developmental delays, it is safe to assume Ms. McIntyre’s capacity remained the same for the 2013 Grant, the 2019 Grant, and the 2020 capacity assessment.

[41] To speak of Ms. McIntyre using words such as “developmentally delayed” might serve to reduce her ability to the reader. I distinctly recall Ms. McIntyre being fully engaged in the hearing. When she spoke, she articulated her opinions clearly. She had no difficulty expressing what she thought of the application. To paraphrase, Ms. McIntyre does not “know what all the fuss is.” As soon as she got the settlement funds, “people were talking and talking.”

[42] Ms. McIntyre also voiced irritation over Dr. Strangway sharing her medical information with the PGT, as he did not seek her consent prior to doing so. In my view this was an unwarranted intrusion upon Ms. McIntyre’s privacy.

[43] Ms. McIntyre became visibility agitated when counsel for the PGT used the word “incapable” in her submissions. Ms. McIntyre takes great umbrage when this word is used in reference to her. In the PGT’s defence, at that juncture counsel was speaking of ways to avoid having Ms. McIntyre declared incapable, in light of her strong resistance.

[44] I do not accept the capacity assessor’s findings that Ms. McIntyre is incapable of giving a power of attorney for property. The assessor confirmed Ms. McIntyre had a basic understanding of the role of a power of attorney: “someone in charge of my money…an overseer.” While Ms. McIntyre was unsure of how much money she had, she thought the power of attorney could not invest it without her permission. She also acknowledged that the power of attorney could take money from her without asking.

[45] What more does one need to understand in order to be deemed capable of granting a power of attorney for property? Ms. McIntyre understood the scope of the grant: the power of attorney would be in charge of her money. She understood the risks: the power of attorney may misuse their authority. While she could not say how much money she had, she knew Ms. Clegg had put the settlement money into a separate account for her, and when she wanted money, all she had to do was ask Ms. Clegg for it. Indeed, I understand it was Ms. McIntyre who wanted the funds kept out of her own bank account.

[46] It does not appear that the assessor asked whether Ms. McIntyre understood the criteria at ss. 8(1)(b), (d), (e) or (f) of the SDA. Ms. McIntyre does not have any dependants, so (b) is irrelevant. Ms. McIntyre revoked the 2013 Grant, so (e) is answered in the affirmative. If the assessor told Ms. McIntyre that her attorney must account to her (d), I trust Ms. McIntyre would agree with that. In respect of (f), I am unsure whether Ms. McIntyre would grasp the notion that the value of her property might decline if not managed prudently.

[47] There is no requirement that each of the seven criteria in s. 8(1) must be satisfied before one is deemed capable of giving a power of attorney. On the evidence before me, I am satisfied that Ms. McIntyre had the capacity to make both the 2013 Grant and the 2019 Grant.

[48] In light of the irregularities raised by the PGT in respect of the witnesses to the 2013 Grant, the 2019 Grant shall stand, with Ms. Clegg as the power of attorney for property, and Mr. Clegg as the alternate. I cannot conceive of two people who would put Ms. McIntyre’s interests more at the fore.

Conclusion

[49] I am not prepared to approve the Trust Agreement. It is unnecessary given my finding that Ms. McIntyre was capable of making both the 2013 and 2019 power of attorney grants.

[50] Unsurprisingly, Ms. McIntyre has a deep mistrust of governmental institutions. A portion of Ms. Clegg’s April 15, 2021, email to Ms. Brohm, counsel for Ms. McIntyre, is illustrative. While obviously hearsay, I trust it accurately reflects Ms. McIntyre’s perspective:

During your first visit with Marlene, the one and only request she stated to you, was that she did not want the PTOG’s [sic] office to be involved with her at all or have other people/agency workers telling her how to live her life. Now she feels deflated and you have not carried out or fought for her request. She stated that she’s lost faith in anyone truly listening to her wishes and has to give in to verbal pressure.[^4]

[51] Giving “in to verbal pressure” refers to the ultimatum the PGT presented to Ms. McIntyre: if she agreed to the Trust Agreement and agreed that the PGT could manage her settlement funds, the PGT would not ask the court to find Ms. McIntyre incapable of managing her property, and would not ask to be appointed her guardian of property.

[52] The purpose of the Trust Agreement is set out in the body of the document as follows:

The Trustee shall pay any amount or amounts or the whole of the annual net income from the Marlene McIntyre Trust together with any amount or amounts of the whole of the capital of the Marlene McIntyre Trust to or for the benefit of Marlene McIntyre as the Trustee shall, in the exercise of an absolute and unfettered discretion, consider advisable from time to time taking into account the reasonable wishes and directions of the Settlor/Beneficiary. [emphasis added].

[53] Each time Ms. McIntyre wants to access her money, she must ask the PGT. And the PGT has the right to deny her request.

[54] I can only imagine what a bitter pill Ms. McIntyre swallowed when she conceded to the Trust Agreement. After all she has lived through, this represents a harsh restriction on her freedom. Ms. McIntyre should be entitled to spend her money as she wishes, when she wishes.

[55] The funds resting in Ms. Brohm’s trust account shall be returned to Ms. McIntyre.

Passing of Accounts

[56] I was not asked to rule on this issue. While references to finances were raised during the hearing, the passing of accounts cannot be said to have been fully argued. Despite this, I find it is in the interests of all the parties that the passing of accounts be finally determined. Rule 1.04 mandates that the rules are to be “liberally construed to secure the just, most expeditious and least expensive determination” of a matter.

[57] Further, r. 2.01 provides that a failure to comply with the rules is an irregularity, such that the court may grant relief on such terms as are just, to secure a just determination of the issue.

[58] Ms. McIntyre’s settlement from the class action lawsuit was $82,200. There was approximately $55,000 left when the PGT became involved. Thus, it was the difference of $27,000 the PGT sought an accounting in respect of.

[59] Ms. Clegg provided a list of expenses[^5] totalling just under $23,000, leaving roughly $4,000 unanswered for. I am not suggesting $4,000 is an insignificant sum of money. However, on a cost benefit analysis, the PGT’s application was tantamount to spending good money after bad. Not to mention the emotional toll these last two years has taken on the Respondents, which was apparent during the hearing.

[60] As for the $23,000 in expenses, Ms. Clegg explained that the money was spent on whatever Ms. McIntyre wanted: new furniture, an air conditioner, clothing, even a concert to see Ms. McIntyre’s favourite band at Casino Rama, Alice Cooper. She spent money on her cats, and spent freely at Christmas, her favourite time of year. As Ms. Clegg phrased it during the hearing, “Ms. McIntyre has had a life since getting the settlement funds.”

[61] Ms. McIntyre also approved loans to Ms. Clegg, for car repairs and hydro bills. While I do not recall an exact figure being provided, I believe the loans were in the range of $2,000-$3,000. Ms. Clegg has undertaken to pay this money back, at $50 per month. In the event it is not all paid back at her death, Ms. Clegg’s Will provides that any outstanding amount be paid to Ms. McIntyre in a lump sum.

[62] A power of attorney for property creates an important fiduciary obligation on an attorney. In a perfect world, a power of attorney for property will keep accurate and up-to-date records in respect of the grantor’s finances. But the world is not always perfect. It is at times messy. Ms. Clegg appears to be a bit unorganized, and her record-keeping leaves much to be desired.

[63] Ms. Clegg could not account to the PGT’s satisfaction, but she was always responsive to the PGT’s investigator. She was not evasive. In my view she did her best to balance the line between providing information to the PGT, and safeguarding Ms. McIntyre’s privacy. However, the investigator chose to view her actions as suspicious. He did not take the time to understand the relationship between the Respondents, or the strength of their bond that has lasted nearly half a century.

[64] Ms. Clegg was ordered to pass her accounts. She has not done so in proper court format. She has, however, provided documentation to support where the majority of the funds were spent. The expense of preparing and submitting a formal passing of accounts is unwarranted in the circumstances, particularly given that this expense might ultimately be borne by Ms. McIntyre. The court is content with the informal accounting Ms. Clegg has provided, and I find that the order to pass her accounts has been fulfilled.

Costs

[65] Section 3(2) of the SDA mandates that if legal representation is provided for a person and no certificate is issued under the Legal Aid Services Act, 1998, S.O. 1998, c. 26 the person is responsible for the legal fees. Ms. Brohm’s bill of costs, at $21,775.50, has been reduced in its entirety, as a courtesy by her law firm. Ms. Brohm’s outstanding disbursements of $153.97 shall be borne by the PGT.

[66] No costs are awarded to Ms. Clegg, as she was unrepresented.

Casullo J.

Released: August 24, 2021

[^1]: It bears noting that on August 8, 2016, Ms. Clegg was named power of attorney for personal care. This appointment is not challenged by the PGT. [^2]: Todd McEwen, “D’Arcy Place, former Cobourg developmental hospital, named in $36-million class-action settlement”, NorthumberlandNews.com (27 April 2016), online: https://www.northumberlandnews.com/news-story/6517217-d-arcy-place-former-cobourg-developmental-hospital-named-in-36-million-class-action-settlement/. [^3]: My views are not to be taken as a criticism of the judge ordering the capacity assessment. While the PGT’s materials may have alleged reasonable grounds to suspect that Ms. McIntyre was vulnerable, such that the order was warranted, the evidence before me has not borne this out. [^4]: I cast no aspersions on Ms. Brohm’s representation of Ms. McIntyre. I believe she ensured Ms. McIntyre felt heard and respected. This is a highly unusual set of circumstances, and Ms. Brohm worked as well as she could within them. [^5]: I acknowledge this list has not been tested.