Superior Court of Justice
October 28, 2022
Heard By Videoconference (zoom)
Counsel for the Applicant: GILMOUR, William R. bill@wgilmour.ca
Counsel (Section 3) for Respondent #1: KINCH, Kathleen M. kat@kinchlitigation.com
Counsel for the Respondent #2: NWAWE, Joy joytricia2011@yahoo.com
Counsel for Amanda Smyth, Affected Party (Not Direct Party): MAYESKI, Alexandra amayeski@maylexlitigation.com
Endorsement
1There was a case management hearing held before me today, by Zoom, further to clause 4(c) of my Endorsement dated October 4, 2022.
2The within Endorsement shall be provided to Mr. Gilmour, Ms. Nwawe, Ms. Kinch, and Ms. Mayeski.
3Further, the Court directs that Ms. Mayeski, or someone on behalf of LAWPRO, shall provide the within Endorsement to the three lawyers who prepared Power(s) of Attorney for Mr. Paul Tanti – Amanda Smyth (“Smyth”), Desmond Brizan (“Brizan”), and Joseph Donnelly (“Donnelly”).
4In addition, the Court directs that Ms. Kinch shall provide the within Endorsement to the Ministry of the Attorney General (Ontario), Crown Law Office – Civil, in Toronto, and to the Office of the Public Guardian and Trustee, in Toronto.
5As Mr. Paul Tanti is incapable of waiving solicitor-client privilege, and as Ms. Kinch as section 3 SDA counsel is not authorized to waive that privilege, and as the privilege must necessarily be waived so that the lawyers who prepared the Power(s) of Attorney can disclose the content of their files and provide evidence at the upcoming hearing scheduled to take place at the Brampton Superior Court of Justice during the civil blitz sittings commencing in January 2023, this Court orders that solicitor-client privilege is hereby waived with regard to Mr. Paul Tanti and lawyers Smyth, Brizan, and Donnelly.
6Ms. Mayeski was here today only on behalf of Smyth. Normally, the Court would afford to Brizan and Donnelly the opportunity to consult with counsel and be heard prior to making the order set out immediately above, however, that is not practical in this case because there is insufficient time to accommodate that before the scheduled hearing and, frankly, there is nothing that could be submitted by Brizan and/or Donnelly that would reasonably be expected to change the Court’s decision.
7This Court orders that, by 4:00 p.m. on November 18, 2022, Smyth, Brizan, and Donnelly shall each disclose to Mr. Gilmour, Ms. Nwawe, and Ms. Kinch the contents of their file(s) regarding their preparation of Power(s) of Attorney for Mr. Paul Tanti.
8This Court has considered what role, if any, Ms. Kinch should play between now and the upcoming hearing and at the upcoming hearing. I am of the view that Ms. Kinch should continue to play a role because of her intimate knowledge of the case, because of her helpfulness to the court at the prior hearing held before me, because of the complexities of the proceeding and its lengthy history and gross level of acrimony between the parties, and because the judge presiding at the upcoming hearing will require her assistance in ensuring hearing fairness for Mr. Paul Tanti. This is an exceptional case. I am of the further view that the continuing role for Ms. Kinch cannot be as section 3 SDA counsel, given this Court’s express ruling that Mr. Paul Tanti’s capacity is not (anymore) an issue in the proceeding. I am of the view, as well, that the continuing role for Ms. Kinch should not be as litigation guardian for Mr. Paul Tanti or as counsel for a litigation guardian for Mr. Paul Tanti. The former would be too expensive as Ms. Kinch, as litigation guardian, would also be entitled to retain her own counsel for the proceeding. The latter would depend on finding a suitable litigation guardian for Mr. Paul Tanti, and I am not satisfied that one exists. On a careful review of the options available and a consideration of the leading jurisprudence, including the decision of the Court of Appeal for Ontario in Morwald-Benevides v. Benevides, 2019 ONCA 1023, and despite Ms. Kinch’s own reservations about whether an appointment of amicus curiae would be appropriate in our case, I am convinced that such an appointment is appropriate. Really, it is the only reasonable option.
9This Court will not make the order appointing Ms. Kinch as amicus curiae, however, without notice to the Attorney General and without hearing from those interested about what the terms of the order ought to be.
10Provided that Ms. Kinch remains willing to accept the appointment, I direct that she work with Crown Law Office – Civil and with Mr. Gilmour and Ms. Nwawe to prepare and submit to the Court a draft Order for my review and consideration, keeping in mind the guidance provided by the Court of Appeal in Benevides, supra. If a draft Order cannot be agreed on, I may be spoken to by booking a Zoom attendance through the trial office in Brampton, at which time everyone interested may appear, including the Crown.
11This Court orders that the order of presentation at the upcoming hearing shall be Sharon Joseph first, followed by Raymond Tanti.
12This Court approves of the following evidence to be adduced at the upcoming hearing. Anything not expressly set out herein is strictly prohibited from being presented at the upcoming hearing by the parties, Sharon Joseph and Raymond Tanti, without leave of the hearing judge.
13Sharon Joseph’s side may present affidavit evidence and oral testimony from Sharon Joseph, affidavit evidence and oral testimony from Smyth, and affidavit evidence and oral testimony from Brizan. The affidavit evidence on behalf of Smyth and Brizan is limited to the existing affidavits that have already been sworn to/affirmed by those persons. Where an affidavit is filed as part of a witness’ direct evidence, even if there is no further direct examination of that witness, that witness must be produced at the hearing for purposes of cross-examination.
14Raymond Tanti’s side may present reports, CVs, and Acknowledgement of Expert Duty forms for these medical doctors: Pallandi, Marotta, Stall, and Varga, and oral testimony from Donnelly, Raymond Tanti, Carol Tanti, and Anthony Tanti.
15Each of those medical doctors referred to immediately above shall be made available at trial for cross-examination, regardless of whether there is any direct examination that goes beyond the identification and filing of their written evidence.
16All written evidence to be relied upon at the upcoming hearing by Sharon Joseph shall be served on Mr. Gilmour and Ms. Kinch and filed with the Court by 4:00 p.m. on December 8, 2022.
17All written evidence to be relied upon at the upcoming hearing by Raymond Tanti shall be served on Ms. Nwawe and Ms. Kinch and filed with the Court by 4:00 p.m. on January 6, 2023.
18The stay of the lifting of the Guardianship Order provided for at paragraph 52 of this Court’s Reasons for Judgment dated July 27, 2022 is hereby extended until the commencement of the hearing scheduled to take place during the civil blitz sittings in January 2023.
19The trial office shall schedule a further case management hearing, before me, for one hour in duration, via Zoom, sometime in early January 2023 and before the commencement of the hearing.
20It should be noted by the trial office in Brampton that Mr. Gilmour is not available to attend the upcoming hearing on January 13, 16, 18, 19, and 27, 2023. The hearing shall not take place on those dates, subject to a further court order.
21There are no costs for today.
CONLAN J.