Court File and Parties

COURT FILE NO.: CV-21-00670160-00ES

DATE: 20221104

SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF THE ESTATE OF ELIAS GEFEN

TORONTO ESTATES LIST

RE: Harry Gefen, Applicant

AND:

Henia Gefen in her personal capacity and in her capacity as the Estate Trustee of the Estate of Elias Gefen and Harvey Gefen, Respondents

BEFORE: C. Gilmore, J.

COUNSEL: Aaron Blumenfeld and Aidan Fishman, Counsel for the Applicant

Ronald Moldaver, Q.C., Counsel for Henia Gefen in her personal capacity and in her capacity as the Estate Trustee of the Estate of Elias Gefen.

Benjamin Salsberg, Counsel for Harvey Gefen.

Chris Graham, Counsel for the Estate of Yehuda Gefen

HEARD: In Writing

Endorsement

Introduction

[1] This motion is being heard in writing as per my Case Management endorsement dated September 5, 2022.

[2] In the main Application, the Applicant Harry Gefen (the “Applicant” or “Harry”) seeks to pass over the appointments of (i) his mother, Henia Gefen (“Henia”), as the sole Estate Trustee of his father’s Estate (“the Estate” or the “Elias Gefen Estate”) and (ii) he and his brother, the Respondent Harvey Gefen (“Harvey”) as alternate Estate Trustees.

[3] The Estate is being administered by Ronald Rutman, an ETDL appointed on January 27, 2015 by Justice Newbould. On June 6, 2022 I extended the ETDL’s powers under the Newbould Order until the hearing of the within Application which is scheduled for December 16, 2022. As such, neither Henia nor Harvey have any control over the administration of the Estate or its assets.

[4] Henia is the 99-year-old mother of Harvey and Harry Gefen. She is the sole beneficiary and Estate Trustee of the Estate of her late husband Elias Gefen. Harry is a judgment creditor of the Estate based on costs awarded to him by this Court. The position of the Estate of Yehuda Gefen aligns with that of Harry on this motion.

[5] This motion in writing is the third motion related to this Application. The prior motions related to Harry’s motion for an Order to examine Henia pursuant to Rule 39, and his motion for an Order to require that Henia undergo a capacity assessment. The prior motions have been bitterly contested due to the long-standing animosity between Harry and Harvey and other related litigation which has been ongoing since 2013.

[6] Once the findings of the capacity assessor Ms. Postoff became available, Harry’s counsel sought to ensure that Harvey did not act on his 2011 Power of Attorney. Harry’s counsel made it known that they would be seeking declarations related to Henia’s incapacity and requesting that a Guardian of Property and a Litigation Guardian be appointed.

[7] Henia and Harvey’s counsel attempted to appeal the Order requiring the capacity assessment and when unsuccessful, sought to have the Order overturned by the Consent and Capacity Board (the “CCB”). The CCB refused involvement as it did not have jurisdiction.

[8] Harvey took the position that an Order for a Litigation Guardian and a Guardian of Property was not required as the 2011 Power of Attorney was valid and, in any event, the ETDL remained in place until all debts of the Estate were paid out from the proceeds of sale of the properties that are currently for sale.

[9] As no agreement could be reached regarding the relief related to the operation of the 2011 Power of Attorney and the intended guardianship, I directed that this motion be heard in writing. Any issues remaining in the Application are scheduled to be heard on December 16, 2022.

[10] I will not repeat the entire history of this matter as it is well known to all parties. My reasons for ordering this matter to be heard in writing were to ensure a decision was made on a proper record and in an expeditious manner. Mr. Moldaver advised on September 5, 2022 that he had no availability for a motion in October, 2022. By hearing the motion in writing, significant delay was avoided.

[11] For the reasons set out below, I find that Henia does not have capacity to manage her property or instruct counsel. Given the family dynamics, tension and conflicts, it is not appropriate for Harvey to act on the 2011 POA. As such, Mr. Shael Eisen will be appointed as Litigation Guardian and Guardian of Property. Mr. Moldaver will be removed as Henia’s counsel given the finding that she does not have capacity to instruct counsel and Mr. Moldaver has not withdrawn as counsel to date.

[12] A trial of these issues as now requested by Henia’s counsel is unnecessary. This is a contested guardianship Application with cross-examinations of the assessors and a complete record available to the Court. At no time was it ever agreed that this matter was to be converted to a trial.

The Within Motion

[13] In this motion, Harry seeks the following determinations:

a) Whether Henia Gefen is incapable of managing property and instructing counsel;

b) If so, who should be appointed as Henia's guardian of property and/or litigation guardian; and

c) Who should bear Harry's costs of this motion, if successful, as well as prior motions related in some way to Henia's capacity.

[14] In accordance with my endorsement dated September 5, 2022, the Power of Attorney for Property given by Henia in favour of Harvey in 2011 was suspended pending the decision on this motion. I also ordered that the ongoing mediation related to the ETDL’s Passing of Accounts be held in abeyance pending the release of my decision on this motion given that Henia was represented at the mediation by Mr. Moldaver and that her capacity to instruct counsel remained in issue.

[15] Other developments in this matter include the Capacity Assessment completed by Mr. Paul Cappuccio dated September 7, 2022 in which he found that Henia had capacity to manage her own property. Mr. Cappuccio’s conclusions do not align with the Capacity Assessment completed by Ms. Rita Postoff and dated August 23, 2022. Ms. Postoff found that Henia also did not have capacity to instruct counsel. Mr. Cappuccio did not provide a report with respect to the capacity to instruct counsel.

The Positions of the Parties

A. Harry Gefen

[16] Harry submits that there is compelling evidence before the Court that Henia is incapable of managing property and instructing counsel. Despite there being strong indications of Henia’s incapacity since February 2022, and despite her counsel being put on notice, no opinion was obtained by her counsel with respect to her ability to instruct counsel.

[17] Harry’s position is that Ms. Postoff’s assessment should be accepted by this Court and not Mr. Cappuccio’s. Ms. Postoff has over 40 years of clinical practice experience in the field of geriatrics and is Ontario’s only Yiddish-speaking certified capacity assessor. Ms. Postoff conducted her entire 2.5-hour interview with Henia in Yiddish which is Henia’s first language.

[18] Harry relies on Ms. Postoff’s notes, which make reference to Henia’s rambling, non-responsive and incoherent answers to questions. Further, Henia could not recall why Ms. Postoff had come to her home although she acknowledged that her lawyer had told her Ms. Postoff was coming. Henia went on to claim that her son Harry and his wife had “murdered” her deceased husband and stolen all her money. These allegations are contrary to the findings made by Justice Kimmel in her 2019 trial judgment.

[19] Henia was also unable to remember the name of the ETDL and claimed that the ETDL had control over her money and bank accounts. This is not correct. The ETDL only controls the four commercial properties in which the Estate of Elias Gefen has an interest. Henia also denied having been examined by Mr. Blumenfeld in February 2022. Of course, the examination did take place and was recorded. The video recording was reviewed by this Court.

[20] Importantly, Henia scored only 12/20 in scenarios exploring her judgment and ability to solve problems. 14 and below are considered in the impaired range according to Ms. Postoff. Harry requests that the Court accept Ms. Postoff’s opinion that Henia cannot manage her property or understand the consequences of making or not making decisions in relation to that property.

[21] Harry urges this Court not to accept Mr. Cappuccio’s assessment for several reasons. First, this Court ordered that any assessment had to be conducted with a Yiddish interpreter present. No such interpreter was present during the Cappuccio assessment. Further, Mr. Cappuccio was not told by Harvey that the assessment he was to undertake was part of ongoing litigation or that Henia’s capacity to manage property was a live issue in that litigation. Rather, according to Harry, Mr. Cappuccio was given the impression that the assessment was simply an update to one he conducted on Henia over 10 years ago.

[22] Mr. Cappuccio was given copies of assessments performed by Dr. Shulman in 2012, 2014 and 2016 as well as his own assessment from 2011. He was not provided with a copy of Ms. Postoff’s assessment, nor any of the previous decisions of this Court, the Divisional Court or the Court of Appeal in the within litigation.

[23] During his cross-examination, Mr. Cappuccio conceded that had he been aware of the Postoff assessment or that his assessment was being used for litigation, he would not have agreed to assess Henia. Mr. Cappuccio conceded that Henia made several mistakes when describing her assets and that he did not seek corroborating information about Henia’s property and background from anyone other than Harvey. The Cappuccio assessment did not deal with the discrepancies between Harvey’s background description of Henia’s property and Henia’s own description. Mr. Cappuccio agreed on cross-examination that such errors would raise concerns about a person’s ability to manage their property.

[24] Mr. Cappuccio stated in his cross-examination that he believed his assessment was correct at the time but that he would do a different report if he had known it was to be provided to the Court.

[25] As for the capacity to instruct counsel, counsel for Harry relies on appellate level caselaw for the proposition that the capacity to instruct counsel is higher on the competency hierarchy than decisions regarding financial matters and second only to the capacity to make a will. Counsel pointed out several concerning facts in Ms. Postoff’s report including Henia’s statement that she simply does what her lawyer says and that she did not know she could switch lawyers. As there is no other report on Henia’s capacity to instruct counsel and no affidavit from either Henia or her current counsel on the issue, Ms. Postoff’s opinion must stand.

[26] As it is clear that Henia can neither manage her property nor instruct counsel, Harry proposes that Mr. Shael Eisen be appointed as Henia’s Litigation Guardian and Guardian of Property. Mr. Eisen provided an affidavit affirmed on September 8, 2022. In that affidavit, Mr. Eisen confirmed his relevant background and experience as well as his willingness to take on the role and his ability to speak Yiddish. He also deposed that he had no relevant conflicts that would preclude him from doing so.

[27] Harvey alleges that there is a conflict in having Mr. Eisen act as Guardian of Property as he has acted as a Guest Lecturer at Osgoode Hall Law School where Harry’s wife, Susan Drummond, teaches law. Ms. Drummond provided an affidavit denying this allegation. She has not been cross-examined on her affidavit. While Harvey suggests that either his daughter Dr. Ashley Gefen or his niece Hania Mincer would be Henia’s choices if a Guardian of Property is appointed, neither of them have provided any of the statutorily prescribed documents in that regard.

[28] Harry’s concerns about Harvey acting on his mother’s 2011 Power of Attorney or as her Guardian of Property may be enumerated as follows:

a. The finding by Justice Kimmel that Harvey unconscionably procured $8.6M worth of Henia’s assets. While, according to Harvey, Henia denies this, she has never provided an affidavit to confirm her position. She has never mentioned it during her examination or during the assessments.

b. Harvey is not unbiased or indifferent as to the outcome of this proceeding.

c. The evidence at the Kimmel trial by Dr. Sheldon Finklestein that Harvey forged his signature on a contract;

d. Unpaid costs (plus interest) in the amount of $57,248.59 ordered to be paid by Harvey which remain outstanding. $15,000 of those costs are payable to Harry.

e. Other possible alternatives as guardians of property including Ashley Gefen, Nestor Wolicki or Noah Okell are not appropriate either because of conflict issues or their unwillingness to become involved.

f. Henia told Ms. Postoff that if she does not like what Harvey is doing as her POA for Property she can simply “kick him out.” This is untrue if Henia is found to be incapable.

[29] Harry submits that Mr. Ronald Moldaver should personally bear the cost of this and the previous motions. Specifically, if Henia is found to be incapable, Harry seeks his costs of this motion and the motion decided on June 6, 2022 be paid by Mr. Moldaver personally. Further, Harry seeks to have Mr. Moldaver added as a party responsible for the payment of costs (in addition to Henia) with respect to the costs order of February 4, 2022.

[30] Harry is aware of the provisions of Rule 57.07 which requires that where costs are sought against a lawyer personally that the lawyer must be put on notice. Mr. Moldaver has been put on notice about this request since the delivery of Harry’s motion record on August 25, 2022. It is clear, as Henia told Ms. Postoff, that she has simply been doing what Mr. Moldaver told her rather than providing instructions to him. Further, it has been evident since Henia’s examination on February 22, 2022 that Henia’s capacity to instruct counsel has been in doubt and Mr. Moldaver was aware of this.

[31] Harry’s position is that Mr. Moldaver was in a conflict in acting for Harvey and Henia given the unconscionable procurement findings in the Kimmel judgment. He did not send Henia for independent legal advice as he knew that another counsel would simply have advised her to consent to the relief sought in this Application given her physical and mental state.

[32] Harry asserts that Henia’s counsel has taken unreasonable positions in this litigation which have increased costs. His refusal to permit Henia to be examined when she was a party to the proceeding was legally untenable. The Court commented that the motion in that regard should not have been necessary.

[33] Further, Harry maintains that Henia’s counsel’s attempts to sidetrack and delay Ms. Postoff’s assessment also added to the costs of this proceeding. It is now clear that at the time he claimed that Henia was too weak to be assessed by Ms. Postoff, Mr. Cappuccio’s assessment was being scheduled. When the problems with the scheduling of Ms. Postoff’s assessment came to the point where a Case Conference was required, Mr. Moldaver was asked who he thought should assess Henia and he gave the name of Ms. Therese Liston. However, Mr. Moldaver did not advise the Court that during that same period, he and Harvey were arranging an assessment with Mr. Cappuccio.

[34] Once Ms. Postoff’s assessment with respect to capacity to instruct counsel became available, Mr. Moldaver did not withdraw or seek directions from the Court. Rather, he wrote to the PGT’s office to have them legitimize Harvey’s use of the 2011 POA.

[35] Harry also submits that Mr. Moldaver has made misrepresentations to this Court and to counsel for tactical reasons and has taken unreasonable positions. He continued to take instructions from Henia even when her capacity to instruct counsel was first identified as a possible issue in February 2022 and then after the Postoff assessments. Harry therefore seeks substantial indemnity costs against both Harvey and Mr. Moldaver.

[36] Harry submits that the standing issue raised by Harvey and Mr. Moldaver is misguided. First, s. 22 of the SDA permits the appointment of a guardian on “any person’s application.” Harry, however, is not just “any person.” He is a judgment creditor of both the Estate and Henia personally and he is Henia’s son. Further, Rule 7.03(5) allows an Applicant to move for the appointment of a Litigation Guardian for a Respondent under a disability. As Harry’s position is that Henia lacks capacity, he retains standing for that relief.

B. Harvey Gefen

[37] Harvey’s position is simply that the relief sought by Harry is not required pending the hearing of the Application in December 2022 because Harry’s interests in the Estate as an execution creditor are already safeguarded by previous Orders of this Court which require that the proceeds of sale of the commercial properties being sold by the ETDL are to be paid into Court. As Harry has no other interest in the Estate, there is no reason to stay the operation of the Powers of Attorney and his motion should be dismissed.

[38] As well, Harry has sought leave to appeal the Kimmel decision to the Supreme Court of Canada. The Estate cannot be administered until the leave application is determined.

[39] Harvey submits that the proposed ETDL and Guardian of Property, Mr. Shael Eisen, is a colleague of Harry’s spouse, Susan Drummond, who is a professor at Osgoode Hall Law School. There would, therefore, be a significant conflict in such an appointment.

[40] In a reply affidavit affirmed September 25, 2022, Susan Drummond deposed that Shael Eisen is not her colleague or a law professor, nor has he lectured at any of the courses she gives at Osgoode Hall. She has never threatened to have Shael Eisen or indeed anyone appointed as Litigation Guardian in this litigation.

[41] Harvey further submits that his mother had explicitly told him that she wants to remain as Estate Trustee and that she wants Harvey alone to serve as her Power of Attorney for Property. There has never been any conflict in the position of Henia and Harvey throughout this litigation. Their positions have always been aligned. It should be noted that Henia has never revoked her Power of Attorney for Property in favour of Harvey despite the trial judge’s determination with respect to unconscionable procurement.

[42] Henia has always made it clear to Harvey that she wants to pay the costs owed to Harry, Yehuda’s Estate and the ETDL as soon as funds are available from the sale proceeds of the Brampton and Pickering properties.

[43] Henia has always made it clear to Harvey that she wants Mr. Moldaver to continue to be her lawyer. That has never changed. Mr. Moldaver has worked for the Gefen family for decades and Henia trusts him.

[44] As repeated previously, Harry has no standing to bring his Application or this motion as he is not a beneficiary of the Estate, he is only a creditor of the Estate who will be paid out by the ETDL in due course. As such, Harry’s motion is both misplaced and non-urgent given the ETDL’s exclusive control over the Estate.

The Legal Issues

Issue #1 – Henia’s Capacity to Manage Property and Instruct Counsel

A. Henia’s Capacity to Manage Property

[45] Section 6 of the Substitute Decisions Act (the “SDA”) sets out that a person is incapable of managing their property if they are not able to understand information relevant to making a decision related to the management of that property or unable to appreciate the reasonably foreseeable consequences of a decision or lack of a decision.

[46] In this case, the Court has two competing capacity assessments. The assessment of Ms. Postoff concluded that Henia did not have the capacity to manage property. I find that the Court can rely on this assessment and not the assessment of Mr. Cappuccio for the following reasons:

a. Ms. Postoff conducted a thorough 2.5-hour interview with Henia.

b. Ms. Postoff is an extremely experienced and respected assessor with over 40 years of clinical experience.

c. The interview was conducted entirely in Yiddish, Henia’s first language. This was based on Henia’s stated preference.

d. The information Ms. Postoff gleaned from her interview with Henia was disconcerting including an allegation that Harry and his wife had murdered her husband with a hammer, and that Harry had taken all of her money. Neither of those statements are true.

e. Henia was clearly confused about her own property stating that she had no access to money or her bank accounts because the Trustee will not permit it. The Trustee has no control over Henia’s personal bank accounts. Henia could not remember the Trustee’s name.

f. Henia was confident that if she no longer wanted Harvey acting as her POA she could find someone else or “kick him out.” Of course, this is problematic when Henia’s capacity is in issue.

g. Henia scored in the impaired range on testing of her judgment and ability to solve problems.

h. Ms. Postoff was the court-appointed assessor to whom both parties were able to provide information. Mr. Cappuccio was retained without the knowledge of the Applicant.

i. Ms. Postoff was provided with my previous endorsements and Orders in this case as well as Justice Kimmel’s trial decision and the previous assessments of Dr. Shulman and Mr. Cappuccio. All counsel were aware of the documents provided to Ms. Postoff and Ms. Postoff was aware that her assessment report would be used in these proceedings.

[47] Henia’s counsel attempts to reduce the weight of Ms. Postoff’s report because she relied on the case of Banks v. Goodfellow [1861-1873] All ER Rep 47. The Banks case dealt with the test for testamentary capacity which is admittedly a much higher threshold than required in either of the assessments performed by Ms. Postoff. However, counsel’s criticism of her reliance on this case is of little import for the following reasons. First, the SDA sets out clear parameters with respect to the criteria to be used to assess capacity for the management of property. As for the test for the capacity to instruct counsel, that has been clearly set out in more recent caselaw including Calvert set out below.

[48] Mr. Cappuccio’s report cannot be relied upon by this Court. This finding is not intended to detract from Mr. Cappuccio’s professional abilities. He was simply at a disadvantage because he did not have all of the relevant facts.

[49] First, Mr. Cappuccio was not told that his report would be used in this proceeding, nor was he given copies of any of the materials, endorsements or Orders in this case. He was given a copy of the Kimmel trial decision, the resulting appeal and the 2011 POA but deposed that he did not review those documents. Mr. Cappuccio was very clear during his examination that had he known that his report was to be used in this proceeding he would not have accepted the retainer.

[50] Mr. Cappuccio was given a number of outdated and previous assessments (including one of his own) all of which concluded that Henia had capacity (in different contexts). He was never told about nor given a copy of Ms. Postoff’s assessment. During his examination he stated that it would have been helpful for him to have had a copy of Ms. Postoff’s assessment.

[51] All of the background information received by Mr. Cappuccio was from Harvey. He did not attempt to corroborate that what Harvey told him was accurate. Harvey paid him $2500 for the assessment. It is not clear where this money came from.

[52] There were none of the safeguards imposed on the information to be provided to Mr. Cappuccio as there was with Ms. Postoff where the Court set out parameters as to what information could be provided to Ms. Postoff and in what form.

[53] Mr. Cappuccio did not attempt to corroborate this information or follow up on any inconsistencies between what he was told by Harvey and Henia respectively. For example, Henia told Mr. Cappuccio that the Trustee controlled all of her bank accounts, that Suzy (presumably Susan Drummond, Harry’s wife) was the Trustee and preventing her from accessing her accounts, that she owned 100% of her condo (she only owns 50%), that she has no income (she receives a pension and government benefits), and that her net worth was $40-$50 million (it is more in the range $20 million).

[54] Mr. Cappuccio agreed that Henia’s lack of understanding that she owned only 50% of her condo was likely an important fact that he had missed. Mr. Cappuccio further agreed that if someone had significantly overvalued their net worth he would “reconsider” that kind of discrepancy. Finally, he agreed that if Henia’s property was not in fact managed by the Trustee and she did not understand that she was able to access money in her bank accounts, that that would raise a concern about her ability to manage property.

[55] Mr. Cappuccio deposed that his assessment was correct at the time he authored it but if he had had more information his conclusions might have been different. Further, if he had known the report was for Court purposes, he would have done a “different report.” These statements are of course troubling for the Court. First, Mr. Cappuccio initially stated he would not have done the report at all if he had known it was for Court purposes. He then went on to say he would have done a different report if he had known it was for Court purposes, but one is left wondering what that different report would have concluded.

[56] While he confirmed that he would “stick to my assessment” this was qualified by his statement that “I can’t question her about some of the information that would have been given to me.” I infer again that this means that if Mr. Cappuccio had known the information presented to him at the examination, his conclusions may have been different. This leaves the result of his assessment as conditional rather than conclusory. As such, I find that the report cannot be relied upon by this Court.

[57] The findings made in my June 6, 2022, endorsement also cannot be ignored with respect to the Court’s observations of Henia’s examination in February 2022. The Court took the opportunity to review the entire videotaped examination in order to be fully informed with respect to whether a capacity assessment should be ordered. Those observations included Henia’s non-responsive answers, a lack of understanding of basic estate related issues, and Henia’s questions to examining counsel about unrelated issues. These observations mirror many of the observations made by Ms. Postoff.

[58] In summary, I find that Ms. Postoff’s report must be preferred to that of Mr. Cappuccio and may be relied upon by this Court to ground a finding that Henia is not capable of managing her property.

B. Henia’s Capacity to Instruct Counsel

[59] As the criteria to assess the capacity to instruct counsel is not set out in the SDA, it must be gleaned from the case law. I would add, however, that Ms. Postoff in conducting her assessment in this regard, indicated in her letter of opinion dated August 23, 2022 that she used the same standards she uses to conduct assessments under the SDA.

[60] At para 14 in Bajwa v. Singh, 2022 ONSC 3720 the Court set out a number of factors to consider including:

a. The person’s ability to understand and appreciate:

i. the nature of the proceedings and the ultimate issue in the proceedings;

ii. the financial risks and benefits of the lawsuit, including how either a positive or negative outcome for the person will affect them financially;

iii. the available options, including the option to proceed to judgment or to try to settle;

iv. the position taken by their family members about the issues in this proceeding;

v. the factors which may be motivating their family members;

vi. the social risks and benefits of this proceeding, including its impact on their relationships with theirfamily members.

b. The person’s ability to assess the comparative risk of the available alternatives, and a reasonable range of possible outcomes, both positive and negative.

c. the person’s ability to make a reasoned choice regarding this proceeding, the rationality of the choice, and the stability of the choice.

[61] Mr. Moldaver cites Bajwa for the proposition that an assessor should not ask the client what she communicated to her lawyer because of privilege. However, Ms. Postoff’s report states that she asked Henia “what she had asked Mr. Moldaver to do for her” and in the cross-examination transcript she states that she was not asking for privileged information but rather an understanding of what was said between lawyer and client. I view the issue of privilege as a red herring and do not accept that it should interfere in any way with Ms. Postoff’s findings.

[62] In Calvert (litigation guardian of) v. Calvert, 1997 CanLII 12096 (ON SC), 32 O.R. (3d) 281, aff’d (1998) 1998 CanLII 3001 (ON CA), 37 OR (3d) 221, the Court dealt with a spouse’s capacity to separate, divorce and instruct counsel. The Court held that “the capacity to instruct counsel involves the ability to understand financial and legal issues. This puts it significantly higher on the competency hierarchy [than the capacity to manage property].” I agree with the Applicant that this must mean that if a person is incapable of managing their property it likely follows that they cannot instruct counsel.

[63] In her letter of opinion, Ms. Postoff recites that Henia advised that she had known Mr. Moldaver for 30 years because he did work for her in the family business. She advised that she did not tell Mr. Moldaver what to do for her, because “he knew already.” She was unable to recall any discussions with her lawyer because she said “what’s there to discuss? He’s the lawyer…I do what he says.” This critical information is entirely reflected in Ms. Postoff’s notes which she took during her interview with Henia. Also of interest was Ms. Postoff’s notation that Henia denied participating in the examination that took place in February 2022 nor did she recall Mr. Moldaver being present with her at that examination.

[64] In Sylvester v. Britton, 2018 ONSC 6620 at para 74, Justice Raikes wrote:

There is, in my view, a distinction to be drawn between a situation in which no instructions can be provided, for example the client is in a coma or speaks only gibberish, and where the client is able to articulate what they want even if they cannot fully appreciate the legal process, risks and costs associated with that position. In the former situation, there are no instructions to be had and as Cullity J. indicated in Banton, it is not for counsel to surmise what those instructions should be.

[65] In the case at bar, Henia was not providing any instructions by her own admission. And although Henia was not in a coma, it was not for Mr. Moldaver to “surmise what those instructions should be.”

[66] Ms. Postoff recited some of Henia’s responses to her questions which were wandering, off topic and non-responsive. Her conclusion was that … “[Henia] is no longer able to understand or process information regarding her ongoing litigation. She had difficulty providing reliable, factual knowledge about issues in the legal proceedings. Much of her information was disorganized, frequently unrelated to the question asked, and needing redirection.”

[67] Applying the relevant SDA “understand and appreciate” test to determine capacity, Ms. Postoff found that Henia “was not able to understand information relevant to making a decision in respect to an issue in her legal proceeding or appreciate the reasonably foreseeable consequences of a decision or lack of decision in respect of an issue in her legal proceeding.” She found that Henia was a person under a disability pursuant to section 6 of the SDA in respect of an issue in her legal proceeding and therefore unable to instruct counsel.

[68] There is no real evidence to contradict Ms. Postoff’s conclusions. There is no affidavit from either Mr. Moldaver or Henia even attempting to purport that Henia has the capacity to instruct counsel.

[69] At several points in his factum, Mr. Moldaver makes bald assertions that he was satisfied that Henia could instruct him. Respectfully, Mr. Moldaver is not in a position to make such assertions. Further, if he truly believed them, he would have provided a letter of opinion to confirm Henia’s capacity to instruct him as soon as the matter was raised after Henia’s examination in February 2022. The assertions in his factum cannot be given any weight by this Court.

[70] Further, as recently as November 2, 2022 Mr. Moldaver continued to represent Henia on a motion in a different proceeding. No mention was made by Mr. Moldaver at that motion (which did not proceed) about Ms. Postoff’s finding in relation to Henia’s capacity to instruct counsel.

[71] Mr. Moldaver relies on Britton cited above. That case involved an issue related to the capacity of an individual who had section 3 counsel appointed by the Office of the Public Guardian and Trustee. Such an appointment under that section of the SDA presumes that the individual retains the capacity to retain and instruct counsel.

[72] In Britton, the Applicant daughter contested her mother’s capacity. A dated capacity assessment found that the Respondent mother did not have capacity to manage her property, personal care or the capacity to determine whether she should be admitted to a long-term care facility.

[73] The Court in Britton took the position that it does not always follow that a finding of incapacity with respect to property and personal care means that a person cannot instruct counsel (para 71). However, the Court goes on to say that where the ability to instruct counsel is put in issue “…it may be preferable for s. 3 counsel in similar circumstances to swear an affidavit outlining the steps taken to satisfy himself or herself s to the client’s capacity to provide instructions (para 76).” No such steps were taken by Henia’s counsel. As such, I find that Mr. Moldaver’s reliance on Britton is misplaced.

[74] In the circumstances, Mr. Moldaver must withdraw from this proceeding entirely given my findings and Ms. Postoff’s conclusions in her Letter of Opinion which remain uncontradicted.

Issue # 2 - Appointment of a Guardian of Property and Litigation Guardian

[75] This remains an extremely contentious issue because both Harvey and apparently Henia (although no affidavit is filed by Henia in this regard) maintain that if a Guardian of Property is named, Henia does not want a third party. She wants either Harvey or her granddaughter or niece.

[76] Rule 7.01 of the Rules of Civil Procedure permits the appointment of a Litigation Guardian for a person who is under a disability. A Litigation Guardian is responsible for commencing, maintaining or defending an action on behalf of a person under a disability.

[77] Section 22 of the SDA provides that the Court may appoint a Guardian of Property for a person who is incapable of managing property. Having found that Henia is both incapable of managing property and instructing counsel, the Court must consider the request for the abovementioned appointments.

[78] Mr. Moldaver raises for the first time in his factum that this matter should be converted to a trial for the December 16, 2022 hearing. No such Order has ever been made or agreed to by the parties. Contested guardianship applications are routinely heard without viva voce evidence. There is no reason why this matter cannot be heard in writing given the fulsome record before the Court.

[79] In Elmi v. Hirsi, 2015 ONSC 6003, the Court determined a contested guardianship in writing. In that case, the contested issues were whether the parties’ daughter was incapable as to her management of property and personal care, and if so, where she should live. The mother and father of the adult incapable child were separated, and both sought to have her live with them.

[80] In that case, however, the adult child was found to have the capacity to instruct counsel and provided instructions to that counsel that she wanted to live with her father. In this case, no such evidence is available. Henia has been found unable to instruct counsel and has never provided an affidavit confirming her ability to do so. There is no evidence from Henia as to what she wants. Having viva voce evidence would not change that fact.

[81] Setting aside a valid POA for Property is not an insignificant matter. It means depriving a person of their choice of attorney that has been made at a time when they had capacity to make such an important choice. Any usurpation of an individual’s right to self-determination must be made sparingly. However, in this case, the passing over of Harvey as POA of Property and Litigation Guardian must be done for several valid reasons as set out below.

[82] The appointment of a Guardian of Property requires the Court to consider the least restrictive course of action. Harvey could of course act as Henia’s POA for Property and Litigation Guardian pursuant to the 2011 POA. However, this is neither reasonable nor practical in the circumstances. Allowing Harvey to be appointed as Henia’s Litigation Guardian and act on the 2011 POA for Property would only exacerbate an already toxic situation. These parties are at war and nothing that allows one or the other any leverage should be permitted to occur. A neutral third party is the only realistic option.

[83] While the appointment of Harvey’s daughter Ashley Gefen or Henia’s niece might be considered a least restrictive option given Henia’s statements (through Harvey) concerning her preferences, neither of those individuals have filed the required affidavits confirming their consent or agreement to act. Further, there is no affidavit evidence from Henia as to who she would prefer as her Guardian of Property. The only evidence as to Henia’s preferences always comes from Harvey.

[84] In Gronnerud (Litigation Guardians of) v. Gronnerud Estate, 2002 SCC 38, [2002] 2 S.C.R. 417, the Court confirmed the necessity of a Litigation Guardian being indifferent as to the outcome of the proceedings and a Guardian of Property must manage the incapable person’s finances in a disinterested and unbiased manner. While the Court recognized that family members often act in those roles, the Court also recognized that there are exceptions when the family members are involved in disputes over the Estate (para 21). In Gronnerud the Court removed the children of the deceased as Litigation Guardians as they were not indifferent as to the outcome as it related to their mother.

[85] The Applicant insists that, apart from the friction between the parties there is also a clear conflict of interest. He points to the finding in Justice Kimmell’s trial decision that Harvey unconscionably procured $8.6M in assets from his mother. At paragraph 226 of her judgment, Justice Kimmell voided six separate transactions having found that Harvey had failed to rebut the presumption of unconscionable procurement. The benefits procured by Harvey were to be returned to Henia. This finding was not overturned on appeal.

[86] In his affidavit sworn September 24, 2022 Harvey states that Henia has always told him that she did not believe that he had ever unconscionably procured assets from her. It is this Court’s view that such a statement does not negate the conflict, particularly where there is now a finding that Henia cannot understand the nature or consequence of decisions relating to her assets. Further, this bald statement is not supported by a corresponding affidavit from Henia. Finally, based on these alleged statements from his mother there is no evidence that Harvey has actually repaid his mother the $8.6M despite the trial Court’s findings. The conflict therefore continues to exist.

[87] Harvey submits that there can be no conflict of interest between him and his mother because they have the same interests. He relies on Shady Saleh v. Mohammed Salehe et al., 2020 ONSC 5631, 61 E.TR. (4th) 121. In that case, the Plaintiff’s brother argued that he was not an appropriate Litigation Guardian for his mother because of their acrimonious relationship and because he was not indifferent as to the outcome of the litigation. The Court appointed the Plaintiff as Litigation Guardian for his mother. In doing so, the Court disagreed that the acrimony was at the level described by the Defendant brother and found that the parties cooperated with respect to their mother’s care and estate planning and that the discussions between the siblings were always respectful.

[88] The case at bar could not be more different. In this case, Harvey and Harry do not speak. They do no cooperate and if their affidavit material is any indication, they have no respect for one another. They are as disconnected and mistrustful as two brothers could be. I am therefore, not persuaded that the Shady case can be relied upon as a reason not to appoint a third-party Litigation Guardian for Henia.

[89] It is concerning that Henia believes she can simply “kick him [Harvey] out” if she does not like what Harvey does as POA. Given the finding of incapacity in these reasons, Henia could neither sign a revocation nor appoint a new POA. This shows a lack of understanding and insight on Henia’s part as to how a POA operates.

[90] While Henia mentioned at trial and again at various times since then (at her examination, during her interviews with the assessors) that Harry had “cleaned out” her bank accounts, Justice Kimmell found that at all material times Harvey held the 2011 POA and would be “accountable for any unexplained depletion of Henia’s bank account.”

[91] Harry is also not a viable option as Guardian of Property for Henia. Although he has not asked to be appointed, he is the subject of serious allegations by Henia and Harvey that he misappropriated $150,000 from a Swiss bank account that was owned by his mother and late father. This allegation is denied by Harry and the Court has no intention of dealing with that allegation except that it only highlights the lack of trust and animosity between the brothers.

[92] Mr. Shael Eisen has filed the requisite documents and affidavit with respect to being named Henia’s Litigation Guardian and Guardian of Property. He has the experience and neutrality required to fulfill the position responsibly. He is also partially fluent in Yiddish which is helpful.

[93] I entirely dismiss Harvey’s contentions about any professional connection between Mr. Eisen and Ms. Drummond. Ms. Drummond filed her own affidavit denying any such connection. Neither Mr. Eisen nor Ms. Drummond were cross-examined on their affidavits. As such, I do not find that the conflict alleged by Harvey should have any impact on Mr. Eisen’s appointment.

[94] Therefore, given the issues of conflict, family dysfunction and tension, and a complete lack of evidence from Henia on the point, I find that Mr. Shael Eisen would be a suitable and neutral person to take on the appointment of Litigation Guardian and Guardian for Property for Henia.

Issue #3 - Costs Sought Against Harvey and Mr. Moldaver Personally

[95] Apart from the millions of dollars in costs owed by the Elias Estate to Harry, the Yehuda Estate, the ETDL and Harvey, Harvey and Henia have never paid any of the costs awarded in this proceeding including any costs awards on appeal. No explanation has ever been given for this. While there is an understanding that the costs owed by the Elias Estate will be paid out when one or more of the commercial properties are sold, there is no such understanding as it relates to this proceeding.

[96] Harry requests that if he is successful in obtaining the relief sought in this motion, that the costs of this motion and that of the June 6, 2022, motion should be paid by Harvey and Mr. Moldaver personally.

[97] In my June 6, 2022, endorsement, no endorsement as to costs was made. This was at the request of Harry’s counsel who indicated that submissions would be made with respect to a non-party having liability for costs. It is now clear that this meant Mr. Moldaver.

[98] In my costs endorsement of February 4, 2022 (which related to my endorsement of January 19, 2022) I ordered Henia and Harvey to pay costs $15,000. Harry now seeks to have Mr. Moldaver substituted for Henia with respect to full or partial responsibility for those costs as well.

[99] Harry relies on Rule 57.07 which permits the Court to require a lawyer to pay costs personally where it is determined that the lawyer has caused costs to be incurred or wasted due to undue delay, negligence or other delay. No such Order can be made without the subject lawyer being put on notice. Mr. Moldaver has been on notice of this request since August 25, 2022. He has had a full and complete chance to respond to the request for costs in his responding material.

[100] In Galganov v. Russell (Township), 2012 ONCA 410, 30 D.L.R. (4th) 679, the Court ordered a portion of the costs against the Applicants be paid by their counsel. The counsel was ordered to pay $72,000 personally. The counsel appealed.

[101] The Ontario Court of Appeal dealt with some of the principles related to ordering costs against a lawyer personally as follows (citing Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 SCR 3:

The basic principle on which costs are awarded is as compensation for the successful party, not in order to punish a barrister. Any member of the legal profession might be subject to a compensatory order for costs if it is shown that repetitive and irrelevant material, and excessive motions and applications, characterized the proceedings in which they were involved, and that the lawyer acted in bad faith in encouraging this abuse and delay. It is clear that the courts possess jurisdiction to make such an award, often under statute and, in any event, as part of their inherent jurisdiction to control abuse of process and contempt of court.... [C]ourts must be extremely cautious in awarding costs personally against a lawyer, given the duties upon a lawyer to guard confidentiality of instructions and to bring forward with courage even unpopular causes. A lawyer should not be placed in a situation where his or her fear of an adverse order of costs may conflict with these fundamental duties of his or her calling.

[102] It is clear that such Orders are rare in order to ensure that lawyers do not fear taking on unpopular cases or litigants. However, the line is crossed if the Court finds that a lawyer acts on unrealistic instructions or does not comply with their duties as an officer of the Court. In Ferreira v. St. Mary’s General Hospital, 2018 ONCA 247, 422 D.L.R. (4th) 100, leave to appeal refused, Georgiana Masgras v. St. Mary's General Hospital, et al., 2018 CarswellOnt 16486, the Court ordered $15,000 against a lawyer for acting without instructions. A further $30,000 in substantial indemnity costs was added for the costs of the appeal.

[103] Harry submits that there is no evidence that Henia gave any instructions to Mr. Moldaver. There is no affidavit from Henia confirming that she did so. Further, there is a statement in Ms. Postoff’s letter of opinion (corroborated by her personal notes) that Henia told her that there was nothing to discuss with respect to Mr. Moldaver, she simply did what he told her. As such, this case can be differentiated from a case such as SMTCL Canada, Inc. v. Jerry Bas Holdings Limited, 2015 ONSC 403, where the Master was concerned that it was possible that the lawyer was acting on instructions from her client and as a result did not award costs against counsel personally. Here, there were no instructions given or capable or being given.

[104] Harry’s position is that it was clear from the time of the examination on February 22, 2022, that Henia may have lacked the capacity to instruct counsel. As such, Mr. Moldaver was bound to obtain some evidence that his client could properly instruct him. He has never taken such steps.

[105] Harry submits that all of the costs incurred in pursuing this Application thus far have been caused by Mr. Moldaver’s conduct. Mr. Moldaver apparently never advised Henia to obtain independent legal advice despite the conflict created by the findings in Justice Kimmel’s judgment referred to above. Harry’s position is that Mr. Moldaver did not pursue independent legal advice for Henia because of a real concern that any independent counsel would have become concerned about Henia’s possible lack of capacity and/or advised her to consent to the relief sought.

[106] The Court has already noted in its previous reasons that the motion to examine Henia under Rule 39 should not have been necessary. As Henia did not file an affidavit, the result of the motion was inevitable. I also find that the motion for a capacity assessment should also not have been necessary. Multiple capacity assessments had been completed in relation to Henia as far back as 2011. Clearly, there were concerns even at that time and an understanding that it was necessary to confirm her capacity. Yet, in the year when she is turning 100 years old, legally blind, mostly deaf and with her videotaped examination and all its concerns available, the capacity assessment was still resisted.

[107] This Court also referred to the refusal by Mr. Moldaver of many clearly relevant and frankly basic questions during the February 2022 examination which should not have been contentious. Harry submits that those questions were refused by Mr. Moldaver because he was concerned about Henia’s ability to answer them thereby potentially raising more concerns about her capacity. With the advantage of Ms. Postoff’s opinions now available, Harry’s position on this point is not unreasonable.

[108] Harry supports his requests for costs against Mr. Moldaver personally with a litany of delays and other issues related to Mr. Moldaver’s conduct. This included the following:

a. Refusing to book a tentative date for the assessment while the appeal was underway.

b. Appealing to both the Divisional Court and the Court of Appeal when clearly the proper route was motion in writing for leave to the Divisional Court thereby causing delay.

c. On July 18, 2022, counsel for the Applicant were informed that Henia was too ill to undergo an assessment and a later date would need to be booked. However, on July 19, 2022, Harvey began contacting Mr. Cappuccio to set up that assessment. Harry asks the Court to infer that Henia’s illness was overstated as she was clearly well enough to undergo an assessment with Mr. Cappuccio.

d. On July 26, 2022, a Case Conference was held to address Mr. Moldaver’s refusal to schedule the assessment. When Mr. Moldaver resisted having Ms. Postoff complete the assessment he was asked by the Court for the name of an assessor that he would agree to. He gave the name of Ms. Therese Liston. Ms. Liston ultimately refused to take on the assessment and it reverted back to Ms. Postoff as per the terms of the Order resulting from the Case Conference. Mr. Cappuccio was never mentioned as an alternative at that point although he had already been contacted.

e. Upon receipt of Ms. Postoff’s opinion with respect to capacity to instruct counsel, Mr. Moldaver did not withdraw as counsel or seek directions from the Court, rather he sought to enforce Harvey’s use of the 2011 POA.

f. Mr. Moldaver pursued a frivolous challenge of Ms. Postoff’s assessment to the Consent and Capacity Board who does not have jurisdiction in such matters.

g. At the Case Conference on September 2, 2022, Mr. Moldaver advised he had no availability in October for the within motion. Yet, four days earlier he advised the mediator’s office (for the ETDL Passing of Accounts mediation) that October dates would be fine. The Court accommodated Mr. Moldaver’s advice that he was not available in October 2022 by ordering the matter heard in writing.

[109] The issues to be determined by the Court are whether Mr. Moldaver pursued goals which were unattainable or was derelict in his duties as an officer of the Court as per Galganov. Specifically, I interpret this to mean the possibility that Mr. Moldaver’s defence of the January and June motions was misplaced and that his conduct leading up to this motion can be interpreted as a dereliction of his duties as an officer of the Court.

[110] I have reviewed the transcript of Ms. Postoff’s cross-examination. Similar to his somewhat overbearing conduct during Henia’s examination, Mr. Moldaver constantly interrupted Mr. Fishman. As a result, many of Ms. Postoff’s answers were hard to decipher thereby making her evidence less reliable for this Court. Mr. Moldaver was also unnecessarily condescending in his remarks to Mr. Fishman.

[111] Given all of the above, I conclude as follows:

a. Henia’s statement that she simply does what Mr. Moldaver tells her is critical. She therefore (whether she has capacity or not on a given day) does not give Mr. Moldaver instructions. She simply allows him to take positions as he pleases. Given this latitude, Mr. Moldaver has taken some unreasonable positions. Best v. Ranking, 2016 ONCA 492 quotes the motions judge as finding that the lawyer “wasted costs unnecessarily by acting on unreasonable instructions from or providing unreasonable advice to his client on the scheduling of the respondents' jurisdiction motion.” (at para 48)

b. The refusal to allow Henia to be examined when she was both a party and had not sworn an affidavit was unreasonable and led to an unnecessary motion. This is also similar to Best, where the Court found that the lawyer took actions that they should have known were doomed to fail and were an abuse of process(at paras 35, 49). Even in cases where the lawyer believed he had an arguable case, personal costs have been awarded when the lawyer went farther than necessary in advocating for their client. See Standard Life Assurance Company v. Elliott, 2007 CanLII 18579 (ON SC), 86 OR (3d) 221 at para 21.

c. His position to refuse an Order for a capacity assessment was also unreasonable in the face of Henia’s answers and conduct at the examination in February 2022 and in the face of a complete lack of evidence from Henia indicating that she had capacity or was refusing to be assessed.

d. His resistance to taking steps to either withdraw from the case or seek directions from the Court in the face of Ms. Postoff’s unrefuted opinion with respect to Henia’s lack of capacity to instruct counsel is puzzling and concerning and has, in part, been the underlying cause of this motion. See Salisbury v. Sun Life Assurance Company of Canada, 2013 ONCA 182 where the Court found that the lawyer “commenced the action without the authority of a client competent to instruct the commencement of the action and has done nothing for many months since that time to seek out a litigation guardian (para 3).” The Court held that it was incumbent on the Plaintiff’s counsel to squarely address her client’s capacity to instruct counsel relative to the commencement of the action (para 7).

e. His interruptions and belittling behaviour towards opposing counsel at Ms. Postoff’s examination were unprofessional and made it difficult to ascertain Ms. Postoff’s evidence on examination as it was often broken up.

f. His refusal to allow Henia to answer even basic questions about this Application during the February 2022 examination was unreasonable and prevented the Court and the other parties from receiving a full picture of Henia’s ability to understand the litigation in which she is a party.

[112] Given all of the above, I find that Mr. Moldaver should be responsible for a portion of the costs incurred by Henia since the January 2022 motion. However, the amount should be a somewhat nominal lump sum. Orders for costs against solicitors personally are not intended to punish but are intended to reimburse their client for the consequences of their pursuing an unattainable result or not complying with their duties as officers of the Court. The costs in this case are more aligned with the pursuit of an unattainable result and acting without instructions as per my comments above. Mr. Moldaver shall therefore be personally responsible for the sum of $3,500. Costs owed by Henia shall be reduced accordingly.

Issue #4 - Harry’s Standing To Seek Relief

[113] Despite the fact that this Court has already ruled on the standing issue in this case (and was not overturned on appeal), the issue continues to be raised by the Respondents. The Respondents contend that Harry, as a judgment creditor of the Estate, can have no financial interest in Henia’s affairs.

[114] Section 22 of the SDA permits the Court to appoint a Guardian of Property on “any person’s application.” While Harry is clearly not just “any person” being both Henia’s son and a creditor of the Estate, he has standing under the SDA to apply for an Order for Guardianship.

[115] Rule 7.03 of the Rules permits a plaintiff or applicant to move for the appointment of a Litigation Guardian. Harry is clearly the Applicant in the within proceeding.

[116] I reiterate my previous finding in this proceeding that Harry has standing.

Orders and Costs

[117] Given all of the above, I make the following Orders:

a. Mr. Shael Eisen is appointed the Litigation Guardian and Guardian of Property for Henia Gefen.

b. Counsel for Mr. Eisen (or the Applicant) to provide a draft Order for my review with respect to Mr. Eisen’s authority.

c. Once Mr. Eisen has obtained copies of Henia’s banking information, and assuming sufficient funds are available, all of Henia’s costs in the within proceeding thus far ($41,500 plus any appeal costs) are to be paid to the Applicant.

d. Mr. Eisen is to contact Ms. Charlebois regarding a reinstatement of the mediation in relation to the ETDL’s Passing of Accounts. He is to attend the mediation on Henia’s behalf and will have full authority to settle any objections made by Henia.

e. Mr. Moldaver is removed immediately as Henia Gefen’s counsel. This Order extends to all matters in which Mr. Moldaver purports to represent Henia in relation to the Elias Estate.

f. The stay in relation to all litigation in which Henia is involved and ordered by me on September 5, 2022, is hereby lifted given that she has representation by way of a Litigation Guardian.

g. Harvey is required to pay all of the costs he has been ordered to pay in this proceeding thus far ($45,000 plus any appeal costs ordered) within 15 days. Failure to do so will result in his pleadings being struck. A motion without notice in this regard may be placed before me in the event that Harvey fails to abide by this Order.

h. Mr. Moldaver to pay the Applicant $3,500 in costs as per my reasons set out above. Henia’s costs have correspondingly been reduced by that amount.

A. Costs of this Motion

[118] Harry has provided a Bill of Costs for the within motion. It sets out his costs as $62,079 in substantial indemnity costs and $45,228 in partial indemnity costs. Henia’s substantial indemnity costs were $7,174 and her partial indemnity costs were $4,782. Harvey also seeks costs. His costs were $17,550.

[119] Harry has had complete success on this motion. He should have his costs. I do not see why costs should be at other than a partial indemnity scale in a proportionate amount. While it is true that the legal issues were complex and involved three assessments and cross-examination of both assessors, some efficiencies were gained by having the matter heard in writing.

[120] As such, Harry should receive the sum of $40,000 by way of partial indemnity costs. Henia and Harvey are each responsible for $20,000 of those costs.

B. Costs of the Capacity Assessment Motion in Writing – Decision Released June 6, 2022

[121] As indicated above, the issue of costs for the capacity assessment motion were deferred pending the Applicant’s request that a portion of those costs be payable by Mr. Moldaver.

[122] On that motion Harry sought substantial indemnity costs of $32,194 and partial indemnity costs of $21,462. Harvey sought partial indemnity costs of $5,852.50 and Henia sought partial indemnity costs of $9,077.06.

[123] The capacity assessment motion was of lesser complexity than the within motion. However, it was a motion which I find should not have been necessary. Whether or not Henia or Harvey agreed that Henia’s examination raised issues related to her capacity, consenting to an assessment would have provided some definitive evidence on the point. Given Henia’s age and infirmities, an assessment should have been viewed as a precautionary measure especially given that multiple assessments had been obtained for the same reason in the past.

[124] As such, this is a motion where an elevated scale of costs is in order although not elevated to the point of being substantial indemnity costs. As such the costs payable shall be $25,000 with Henia and Harvey each being responsible for 50% of those costs.

C. Costs of the Rule 39 Motion in Writing

[125] On February 3, 2022 I ordered that the Respondents pay costs of $15,000. Neither Henia nor Harvey have paid those costs. Each of them is responsible to pay $7,500.

C. Gilmore, J.

Date: November 4, 2022