Court File and Parties

COURT FILE NO.: CV-21-122-00ES (Kingston) DATE: 20220110 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Estate of Wilda Helen Andriesky (deceased)

BEFORE: Mr. Justice Graeme Mew

COUNSEL: Travis A. Webb, for the applicants Martha Downey and Janice Gilmour

HEARD: 10 January 2022, at Kingston (in writing)

Endorsement

[1] Helen Andriesky (since deceased) appointed the applicants Martha Downey and Janice Gilmour as her attorneys for property pursuant to a Continuing Power of Attorney for Property dated 19 August 2020. Janice Gilmour was also Ms. Andriesky’s attorney for personal care pursuant to a Power of Attorney for Personal Care dated 15 May 2018.

[2] This application to pass accounts was commenced on 16 April 2021. However, the application had not yet been heard when, on 19 September 2021, Ms. Andriesky died.

[3] The application to pass accounts seeks, inter alia, approval for the payment to the applicants of the sum of $34,561.24, plus any applicable statutory remittances, as compensation for services as attorneys of property and for disbursements expended in administering the affairs of Ms. Andriesky between 1 September 2020 and 31 December 2020. Ms. Gilmour seeks, in addition, compensation for acting as attorney for personal care in the amount of $8,831.59, plus any applicable statutory remittances, during the same four-month period.

[4] The supporting evidence discloses that the sum of $34,561.24 is the result of pro-rating for four months the allowable compensation provided for by Ontario Regulation 26/95 made under the Substitute Decisions Act, 1992, S.O. 1992, c.30, which provides:

1. For the purposes of subsection 40 (1) of the Act, a guardian of property or an attorney under a continuing power of attorney shall be entitled, subject to an increase under subsection 40 (3) of the Act or an adjustment pursuant to a passing of the guardian’s or attorney’s accounts under section 42 of the Act, to compensation of, (a) 3 per cent on capital and income receipts; (b) 3 per cent on capital and income disbursements; and (c) three-fifths of 1 per cent on the annual average value of the assets as a care and management fee.

[5] An application to pass accounts is more than a rubber stamping of an attorney for property’s accounts. Section 42(1) of the Substitute Decisions Act provides that the court may pass all or a specified part of the accounts. And the court retains a discretion to adjust the compensation claimed to an amount that is fair and reasonable, notwithstanding the percentage formula in the regulation: Sworik (Guardian of) v. Ware (2005), 18 E.T.R. (3d) 132, at paras. 119-120.

[6] The Continuing Power of Attorney for Property granted to the applicants authorises them to incur expenditures that are reasonably necessary for Ms. Andriesky’s care. That said, the Power of Attorney for Personal Care itself contains no provision for compensation, and is effective only in the event that Ms. Andriesky was under a legal incapacity.

[7] Ms. Gilmour’s claim for compensation as attorney for personal care is based on her recorded time spent fulfilling her responsibilities as such. Ms. Gilmour is a retired nurse with 39 years’ professional experience. During the four-month period claimed for, Ms. Gilmour recorded 183.75 hours, for which she asks to be compensated at a rate of $48.05 per hour based on the rate payable to unionised nurses at her level of seniority practising in participating hospitals in Ontario.

[8] In the notice of application Ms. Gilmour also seeks an order authorising future payment of $2,400 per month, not including any applicable statutory remittances, for compensation for acting as attorney for personal care.

[9] This matter first came before me on 31 December 2021. At that time, I adjourned the application, directing that as Ms. Andriesky had died, accounts should be submitted for the entire period of the applicants’ services as attorneys. I added that as a matter of first impression I found the claims for compensation to be high. I also directed that Ms. Andriesky’s estate should be served with all materials relating to the application.

[10] In response to my endorsement of 31 December 2021, the applicants’ lawyer has provided the following additional, and pertinent, information to the court:

1. The applicants are also the estate trustees of Ms. Andriesky’s estate (certificate of appointment issued 30 November 2021 under file no. 2021-304E).
2. The sole residuary beneficiary of the estate is Queen’s University.
3. After review by a solicitor for Queen’s, Queen’s signed both the consent to the judgment in this application and a release in which it approved the 2021 accounts and the claims for compensation for that period.
4. While the application to pass accounts for 2020 was commenced at a time when Ms. Andriesky was still alive, in the same way that estate trustees do not pass accounts if all beneficiaries approve the accounting, the applicants did not intend to commence a passing of accounts proceeding for the 2021 period given that Queen’s has approved the accounts.

[11] In light of the foregoing, the applicants, through their lawyer, ask if this additional information changes the court’s decision on how it wishes to proceed.

[12] While the court is grateful for the additional information provided, the court nevertheless requires that the applicants submit an amended application to pass accounts for the period from 1 September 2020 until 19 September 2021. The court has an overarching responsibility to supervise the compensation of individuals acting under powers of attorney to ensure that it is fair and reasonable in all of the circumstances.

[13] The accounts record that: “Wilda Andriesky's deteriorating health required her to move to The Waterford Retirement Residence upon the failure of the health of Mitchell Andriesky in late July 2020. His death on 30 July 20 made it impossible for her to return to live alone in the home due to her own health which cannot improve.”

[14] The Continuing Power of Attorney for Property was executed by Ms. Andriesky on 19 August 2020, just three weeks after the death of her husband, Mitchell, on 30 July. She was presumably capable of doing so.

[15] It is noteworthy, however, that there is nothing in the record to indicate that Ms. Andriesky at any time subsequent to then became legally incapable. This calls into question whether there is any basis for compensating Ms. Gilmour for the time she spent in her capacity as attorney for personal care.

[16] It would be helpful if such further material as is filed in support of the amended application addresses the concerns implicit from the foregoing.

[17] Given the obvious prima facie conflict of interest between the applicant’s interests as attorneys seeking compensation, and their responsibilities as estate trustees, Queen’s University should be provided with a copy of this endorsement and should be served with all materials filed in connection with this application. The applicants’ solicitors should also consider whether, in the circumstances, they should be representing both the applicants and the Estate (by raising this question, I should not be taken as making any determination one way or the other; at this stage it is raised for further consideration only).

[18] The return of this application should be scheduled for an oral hearing before me on a date to be set by the Registrar.

Mew J Date: 10 January 2022