COURT FILE NO.: CV 21-00002463
DATE: 20211025
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kevin McBride, by the Public Guardian and Trustee, his Guardian of Property v. Merchant Estate and Mackaracher
BEFORE: Van Melle J.
COUNSEL: Andrew D. Felker for the Applicant afelker@walkerhead.com
Gerald Jutsun (not counsel) for the Respondents gjutsun@jutsunlaw.com
HEARD: October 22, 2021
E N D O R S E M E N T
[1] The issue before me today is whether or not Gerald Jutsun, who is not a lawyer, should be permitted to represent the Respondents in this matter.
[2] This comes before the court by way of Justice Doi’s endorsement of August 13, 2021:
[1] The Applicant and the Estate of Helen Merchant are joint owners (tenants-in-common) of a residential property located in Mississauga. The Applicant, by his guardian of property, the Public Guardian and Trustee, seeks to sell the property and apply his share of the proceeds to pay for his ward care needs.
[2] The Estate Trustee, who currently has sole possession of the property, is refusing to sell the property and has not paid any occupation rent or accounted for any rental income for the property. In addition, the Estate Trustee has raised a potential claim against the Applicant’s ownership interest in the property over alleged wrongdoing, as described further below.
Around May 4, 2020, the Estate Trustee retained Gerald Jutsun of Jutsun & Company Law Associates to investigate the Applicant for alleged wrongdoing in respect of the late Helen Merchant. During today’s attendance, Mr. Jutsun advised that his investigation is ongoing and likely will conclude next month. He also advised that the Estate Trustee had made a complaint against the Applicant to Peel Regional Police Service. To date, however, Peel Regional Police Service has not advised the Public Guardian and Trustee of any investigation into the Estate Trustee’s allegations against the Applicant. Mr. Jutsun also advised that he will be preparing a final investigation report by September 30, 2021 which the Estate Trustee intends to use in responding to this application. To this end, Mr. Jutsun advised that he expects to be giving evidence as an expert witness on behalf of the Estate Trustee in this case.
[3] As a preliminary issue, the Applicant objects under Rule 15.01(1) to the Estate Trustee being represented in court by Mr. Jutsun as he is not a lawyer. In addition, the Applicant objects to Mr. Jutsun acting for the Estate Trustee as he intends to testify as a witness in this case. Furthermore, the Applicant has concerns over Mr. Jutsun’s ability to give expert evidence that is fair, objective and non-partisan (i.e., as required by para 3(a) of the Acknowledgement of Expert’s Duty in Form 53) given his intention to argue the Estate Trustee’s case in court as its representative. In submissions, Mr. Jutsun advised that the Estate Trustee may seek leave of the court for him to represent her or, alternatively, that she may decide to retain counsel to act for her in this matter.
[4] As it is nearly four (4) years since Ms. Merchant passed away, the Applicant takes the position that any claim by the Estate Trustee against his ownership interest in the subject property is statute barred. Relying on discoverability principles, the Estate Trustee submits that the statutory limitation period for her claim against the Applicant has not yet expired. Should this issue remain a live concern, there is consensus that the limitations issue should be decided on a short motion as a preliminary issue.
[5] To ensure the orderly progression of this case, I make the following orders:
a. By October 8, 2021, the Respondents shall deliver their responding materials to the application and a notice of appearance. For clarity, the materials delivered by the Respondents shall include or raise any claim against the Applicant’s ownership interest in the subject property;
b. By October 19, 2021, the Applicant may deliver any reply materials;
c. Should the matter of the Estate Trustee’s representation in this case remain in dispute, the parties shall address the matter on a short motion returnable at 10:00 am on October 22, 2021 that shall not exceed 59 minutes;
d. Should either of the Respondents assert a claim against the Applicant’s ownership interest in the property, and should the Applicant take the position that any such claim is statute-barred, the parties shall address this limitations issue on a short motion returnable at 10:00 am on November 26, 2021 that shall not exceed 59 minutes;
e. Costs for today are reserved to the application judge.
[3] For today’s motion I have the following documents:
For the applicant:
- Supplementary Application Record
- Further Supplementary Application Record
- Factum
- Book of Authorities
- Draft order
- Bill of costs
For the respondents:
- Investigative Audit Fraud Report (IAFR) 1.0 for the Estate of Helen Merchant re:1060 Ogden Ave. VOLUME I of I.
- Certificate of the Public Guardian and Trustee re Kevin Patrick Mcbride
- Investigative Audit Fraud Report (IAFR) 2.0 for the Estate of Helen Merchant and Discharge of PGT VOLUME II of II
[4] The responding documents on this motion were to be filed by October 8, 2021. Although the Investigative Audit Fraud Report 1.0 was contained in the applicant’s supplemental motion record, it was not until today that both reports were emailed to the Court Registrar by Mr. Jutsun after the commencement of the hearing of the motion today.
[5] Rule 15.01 of the Civil Rules (Ontario) is as follows:
Where Lawyer Is Required
15.01 (1) A party to a proceeding who is under disability or acts in a representative capacity shall be represented by a lawyer. R.R.O. 1990, Reg. 194, r. 15.01 (1); O. Reg. 575/07, s. 1.
(2) A party to a proceeding that is a corporation shall be represented by a lawyer, except with leave of the court. R.R.O. 1990, Reg. 194, r. 15.01 (2); O. Reg. 575/07, s. 1.
(3) Any other party to a proceeding may act in person or be represented by a lawyer. R.R.O. 1990, Reg. 194, r. 15.01 (3); O. Reg. 575/07, s. 1.
(4) Subrule (3) permits a party to be represented by a lawyer acting under a limited scope retainer, but a limited scope retainer does not, in itself, make a lawyer the lawyer of record for the party. O. Reg. 231/13, s. 3.
[6] In this case Mr. Jutsun is apparently seeking leave to appear for both The Estate of Helen Merchant and for Arlene Mackaracher personally. Rule 15.01(1) applies in this case, as an appearance on behalf of the estate is an appearance in a representative capacity. Nowhere in the Rules is there an exception to this requirement. Nowhere is there an ability to seek leave to represent a party when the proposed representative is not a lawyer.
[7] It is conceded that Mr. Jutsun is not a lawyer. It is not disputed that a lawyer is a person authorized under the Law Society Act to practice law in Ontario. Mr. Jutsun is not authorized to practice law in Ontario or anywhere for that matter.
[8] It appears that Mr. Jutsun is the principal of Jutsun & Company Law Associates Inc. I know this, not through any affidavit evidence as none was filed by the respondents for today’s hearing, but by following the link on the last page of the “Investigative Report” provided by Mr. Jutsun. The company is described on its website:
Jutsun & Company Law Associates Inc., is not a law firm, but a specialized legal intermediary consulting firm providing legal services through licensed practitioners where mandated. We are not a law firm and do not have solicitors as partners or are constituted as a law firm under the Law Society Act of Ontario. Instead our firm acts as a legal consulting intermediary which retains and engages licensed and qualified practitioners to act for various legal services. As a legal consulting intermediary, we provide oversight and management of specific legal files and interact with our team of qualified professionals and licensed practitioners to act as legal counsel of record.
[9] As no affidavits were filed by the respondents for today’s hearing, there is no submission as to the basis upon which Mr. Jutsun asks for leave to enable him to appear on this matter in the Superior Court. There is nothing to explain why Ms. Mackaracher wishes to have him as her “legal representative”. Regardless of the lack of information from the respondents relevant to this question, there is nothing in the Rules permitting the Court to grant leave to a person who is not a lawyer to appear on behalf of a party.
[10] Ms. Mackaracher may appear on her own behalf for that part of the application dealing with her personally. She must however retain a lawyer to act for her as representative of the Estate of Helen Merchant.
[11] In Hrycko v. Miller Estate, 2014 ONSC 6676, para 4, the Court declined to hear from the self-represented Respondent, who was the Estate Trustee of the deceased.
[12] Another issue that was raised before me during argument is the fact that Mr. Jutsun has had meetings with Keven McBride in connection with the two “investigative reports”. I suppose that the respondents can prepare whatever materials they want in response to the application. It will be up to the application judge whether the reports will be accepted as evidence on the application. However, neither Mr. Jutsun nor Ms. Mackaracher had permission from the PG&T to meet with Mr. McBride which permission would have had to have been obtained in advance.
[13] The order prepared and filed on behalf of the PG&T compelling Ms. Mackaracher as the estate trustee, to retain a lawyer, properly licenced to practice law by the Law Society of Ontario, will issue. Given the success on this motion by the PG&T costs will be awarded to it in the amount of $4,347.02. This is on a substantial indemnity scale. I agree with the PG&T that this motion date was unnecessary. Email communications were filed by the PG&T demonstrating that the PG&T challenged Mr. Jutsun’s ability to represent the Estate and Ms. Mackaracher. The PG&T forwarded to Mr. Jutsun a blog post from Hull & Hull LLP explaining that other than the limited discretion set out for corporations in Rule 15.02(2), the court has no discretion to permit a non-lawyer to represent another individual in proceedings before the Ontario Superior Court of Justice. As well, the actions of Mr. Jutsun and Ms. Mackaracher in meeting with Kevin without the knowledge and consent of the PG&T is highly improper. I also consider the failure to comply with the timelines set out by Justice Doi to be another factor necessitating an award of costs at a higher scale. Even a non-lawyer should understand that a judge’s endorsement is not a suggestion, but must be complied with.
[14] In the result, the following order will issue:
Gerald Jutsun shall not be permitted to represent the Respondent, Arlene Mackaracher both personally and in her capacity as the Estate Trustee of the Estates of Helen Merchant, in these proceedings.
Arlene Mackaracher, in her role as Estate Trustee, shall retain counsel to represent her in these proceedings within 14 days of this Order.
Neither Gerald Jutsun nor Arlene Mackaracher shall attend upon Kevin McBride at his residence at Humber Valley Terrace Long Term Care Home 95 Humber College Boulevard, Rexdale, Ontario, or have any written or oral communication with Kevin McBride, while this proceeding is ongoing.
Costs in the amount of $4,347.02 of this Motion shall be paid forthwith by Arlene Mackaracher personally.
Van Melle J.
DATE: October 25, 2021
COURT FILE NO.: CV 21-00002463
DATE: 20211025
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kevin McBride, by the Public Guardian and Trustee, his Guardian of Property
AND
Merchant Estate and Mackaracher
BEFORE: The Honourable Justice Van Melle
E N D O R S E M E N T
Van Melle J.
DATE: October 25, 2021