Court File and Parties
SUPERIOR COURT OF JUSTICE – ONTARIO
TORONTO ESTATES LIST
RE: Riley Jenna Steinhards by her litigation guardian Saiva Steinhards, Plaintiff
AND:
Kimberly Whaley, Kelly Whaley Senike, Raymond Render, Ted R. Laan, Deborah Scott, Wenda Yenson and Dickson Appell LLP, and the Estate of Edwin Joseph Whaley, deceasded, Defendants
BEFORE: C. Gilmore, J.
COUNSEL: Christopher M. B. Graham, Counsel for the Plaintiff (Responding Party)
Brian Shiller, Counsel for Deborah Scott (Moving Party)
Marc Kestenberg, Counsel to Graham Law
Alex Smith, Counsel for Kimberly Whaley
HEARD: December 9, 2022
reasons on motion for summary judgment
INTRODUCTION
1This is the Respondent Deborah Scott’s (“Ms. Scott”) motion for summary judgment pursuant to Rule 20.01 of the Rules of Civil Procedure. Ms. Scott seeks an Order dismissing all claims against her in this action as well as all cross-claims.
2In the underlying action, claims are made against Ms. Scott for conspiracy, breach of trust, abuse of process, unjust enrichment, intentional interference with economic relations and intentional infliction of mental suffering. As well, aggravated and punitive damages are sought against Ms. Scott. Claims made outside of paragraph 1(1) of the Statement of Claim relate to defendants other than Ms. Scott.
3The responding party to this motion, the Plaintiff Riley Steinhards (“Riley”) as represented by her mother and Litigation Guardian Saiva Steinhards (“Ms. Steinhards”), alleges that Ms. Scott was a critical and integral part of a conspiracy within the Whaley family to strip the deceased’s Estate of all assets leaving nothing for her Dependant’s Support claim and the other claims she brings against the Estate.
4Riley alleges that Ms. Scott had access to essential information in her position as the deceased’s long time assistant and thereby supported and assisted others to facilitate the conspiracy against her.
5The moving party’s position is that Ms. Scott played no part in the conspiracy. She was acting upon the authority she was given as Mr. Whaley’s assistant and as such could not make decisions related to moving money or with respect to any aspects of Mr. Whaley’s estate planning. All actions she undertook were on behalf of Mr. Whaley or on his instructions via various family members or their advisors. Further, she received no payment with respect to her alleged participation in the conspiracy. She received a severance payment when her employment with Mr. Whaley ended.
6Ms. Whaley, Ms. Senike and Mr. Render filed a joint factum but did not make submissions nor did they take any position on the motion. They requested that the Court not make any findings of fact in relation to Ms. Whaley, Ms. Senike or Mr. Render or release a decision which would give rise to any issue estoppel against Ms. Whaley, Ms. Senike or Mr. Render.
7Mr. Kestenberg appeared on behalf of Graham law in the event that costs were sought against Mr. Graham personally. As costs will be dealt with by way of written submissions, Mr. Kestenberg did not make submissions at the hearing.
8At the conclusion of the hearing of this motion I gave brief oral reasons with written reasons to follow. These are those reasons. In my oral reasons I granted partial summary judgment in favour of Ms. Scott. As Ms. Scott has no further liability in this matter, I dismissed the cross-claims against her brought by the Defendants Mr. Laan and Ms. Yenson.
BACKGROUND
9Ms. Steinhards is the former common law spouse of the deceased, Ed Whaley (“Mr. Whaley”). She has commenced a Dependent’s Support claim on behalf of Riley who is now 17 years old. This Action (“the Conspiracy Action”) is currently scheduled for an eight-week trial commencing February 6, 2023. The Conspiracy Action will be heard along with three other actions including the Dependency Claim.
10The relationship between Mr. Whaley and Ms. Steinhards ended in 2012. Riley is not Mr. Whaley’s biological child but was conceived and born during their relationship using assistive reproductive technology. There are outstanding disputes with respect to what Mr. Whaley’s Estate’s financial obligations may be towards her. Those issues are not before this Court.
11Ms. Scott was employed for over 30 years by Mr. Whaley in his business, a well-known clothing store in Toronto; Frank Stollery Ltd. (“Stollery’s”). Her employment with Stollery’s ended when the retail store closed in October 2015. During her employment with Stollery’s she was Mr. Whaley’s executive assistant/secretary. She was also Mr. Whaley’s friend. Mr. Whaley was the President and CEO of Stollery’s.
12The Defendants Kim Whaley (“Ms. Whaley”) and Kelly Whaley Senike (Ms. Senike”) are Mr. Whaley’s daughters from his second marriage to Patricia Whaley. The Defendant Ray Render (“Mr. Render”) is Mr. Whaley’s nephew.
13On December 1, 2003 Ms. Scott prepared the 2003 Will on Mr. Whaley’s instructions. The 2003 Will named the Defendants Ms. Senike and Mr. Render as executors and named Ms. Senike as the beneficiary. Mr. Whaley’s previous Will from 1986 divided his Estate equally between Ms. Whaley and Ms. Senike. There are allegations that Ms. Scott hid the 2003 Will from others as a form of retaliation.
14After Stollery’s closed in December 2015 Ms. Scott assisted with some office tasks before the Stollery’s property was sold. Mr. Whaley’s share of the sale price was approximately $35,000,000 from the total $140,000,000 sale proceeds.
15Ms. Scott received severance payments totaling $250,000 when she left Stollery’s. The nature and amount of this payment was challenged by Riley who claimed that it was not a severance payment but a payoff to Ms. Scott for her assistance to further the conspiracy. Riley alleges that Ms. Scott actually asked for $500,000 so she could pay off her farm property and that the $250,000 she received was only part of the payoff.
16Mr. Whaley developed health issues in 2015 and had a major stroke on March 8, 2016. Mr. Render was appointed Mr. Whaley’s Power of Attorney for Property on April 7, 2016. Mr. Render received advice from Mr. Whaley’s family law lawyer the Respondent Ted Laan (“Mr. Laan”) and from an estate’s lawyer, the Respondent Wenda Yenson (“Ms. Yenson”).
17The genesis of the conspiracy is alleged to have occurred during two meetings which took place on April 5 and 11, 2016. The meetings generated a To-Do list distributed to the alleged co-conspirators. The To-Do list contains specific mention of Ms. Scott.
18On April 19, 2016, Ms. Senike arranged for her father to be removed from hospital and taken to Teddington Retirement Residence in Toronto. Mr. Whaley remained at Teddington’s until his death on April 1, 2017.
19Riley alleges that Ms. Scott worked with the other defendants in order to defeat claims advanced on her behalf. Specifically, those claims relate to isolating Mr. Whaley by relocating him and removing his phone so that Riley could not contact him, refusing Riley’s requests to see her father, facilitating money transfers to ensure there was no money left in Mr. Whaley’s Estate, receiving a pay-off for her participation in the conspiracy, hiding Mr. Whaley’s 2003 Will and assisting with a “bait and switch” scheme related to Mr. Whaley’s Power of Attorney for Property. Ms. Scott denies all of these allegations and submits that she did not participate in or make any decisions related to the abovementioned allegations nor did she have the authority to do so.
Is This Case Appropriate for Partial Summary Judgment?
20The Plaintiff submits that this is not an appropriate case for summary judgment because all of the concerns raised in Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 OR (3d) 561, apply. The Butera case addressed when bifurcation may be appropriate where a motion for summary judgment does not dispose of the entire action.
21In Butera, the Ontario Court of Appeal raised the following concerns about bifurcation:
30First, such motions cause the resolution of the main action to be delayed. Typically, an action does not progress in the face of a motion for partial summary judgment. A delay tactic, dressed as a request for partial summary judgment, may be used, albeit improperly, to cause an opposing party to expend time and legal fees on a motion that will not finally determine the action and, at best, will only resolve one element of the action. At worst, the result is only increased fees and delay. There is also always the possibility of an appeal.
31Second, a motion for partial summary judgment may by very expensive. The provision for a presumptive cost award for an unsuccessful summary judgment motion that existed under the former summary judgment rule has been repealed, thereby removing a disincentive for bringing partial summary judgment motions.
32Third, judges, who already face a significant responsibility addressing the increase in summary judgment motions that have flowed since Hryniak, are required to spend time hearing partial summary judgment motions and writing comprehensive reasons on an issue that does not dispose of the action.
33Fourth, the record available at the hearing of a partial summary judgment motion will likely not be as expansive as the record at trial, therefore increasing the danger of inconsistent findings.
22I do not find that this motion will delay the hearing of the main action which is set to commence on February 6, 2022. The Plaintiff complains that if an appeal is sought it may delay the trial and it could be that Riley will no longer be a minor by the trial date thereby prejudicing her claims. Even if this motion had been heard six months ago, the possibility of delay in relation to any appeal would exist. The Plaintiff may still seek a stay and an expedited appeal if so advised.
23The Plaintiff filed over 14,000 pages of evidence in this matter. All examinations have been completed other than a discovery and defence medical in relation to Riley. The parties are ready for trial.
24With Ms. Scott out of the action, the Court can focus on the more substantive elements of this case. There will be no risk of inconsistent findings as this Court has made no findings other than that Ms. Scott was not a co-conspirator. The Plaintiff is free to litigate all issues against the remaining defendants. In this case, partial summary judgment is sought to remove a party entirely, not to reduce the number of claims available to the Plaintiff to litigate.
25I am currently the judge assigned to hear this trial. Efficiencies will therefore be gained by having a judge with an already extensive background knowledge of this matter and the possibility of inconsistent findings will be minimized.
26Riley’s counsel warns that the trial judge will be put in a position of having to make credibility findings with respect to Ms. Scott’s involvement and that the Court cannot decide her involvement in a vacuum where there are five other people involved, all of whom had different roles. I do not agree. As set out below, I have found that Ms. Scott was not a co-conspirator and did not actively take steps to harm Riley or deprive her of support or a relationship with Mr. Whaley. Her involvement forms part of the narrative of this proceeding but her actions were not in furtherance of any conspiracy but only in response to direction from either Mr. Whaley, his advisors or his family.
27Riley’s counsel argued that I should not grant partial summary judgment because Ms. Scott will still remain the Defendant in the cross-claims by Mr. Laan and Ms. Yenson. This means she must go to trial in any event, so the exercise of granting a motion for summary judgment is meaningless. In any case, if there is evidence at trial that is favourable to the Plaintiff with respect to Ms. Scott, they will take steps to vary any Order for summary judgment.
28Mr. Shiller advised during the reply submissions that an agreement had been reached between him and counsel for Ms. Yenson and Mr. Laan that in the event his client was successful on this motion, they would withdraw their cross-claims. Mr. Graham was very concerned that he had not been advised of this agreement.
29Mr. Shiller was not aware that Mr. Graham would raise this issue until he made his argument. As such, Mr. Shiller referred to it in reply. Whether Mr. Graham should have been advised of the agreement or not, Rule 20.09 makes it clear that Rule 20.01 applies to counterclaims, cross-claims and third-party claims. As I have found that Ms. Scott has no liability in this matter, there is no reason not to exercise my jurisdiction to dismiss the cross-claims against her. I rely on Manulife Bank of Canada v. Conlin 1996 CanLII 182 (SCC), [1996], 3 S.C.R. 415 with respect to the Court’s jurisdiction to dismiss other claims in the context of a summary judgment motion.
The Conspiracy Allegations
30In D’Agnone v. D’Agnone, 2017 ABCA 35,48 Alta LR (6th) 8, at para 22, the Alberta Court of Appeal set out what are the accepted basic elements of the tort of conspiracy as follows:
a. There must be an agreement which is acted upon and causes injury to the Plaintiff;
b. The agreement may be inferred and does not need to be in a specific form;
c. To be a party to a conspiracy, more than mere knowledge that a conspiracy exists is required;
d. The facts of the conspiracy must be known and intention to be part of the alleged agreement found; and
e. There must be intentional participation with a view to furthering the common design and purpose of the conspiracy.
31The Plaintiff alleges that the Defendants conspired to harm or injure her including an intention to destroy her relationship with Mr. Whaley, deprive her of support, conceal her interest in the Estate and prevent her from making a support claim against Mr. Whaley’s Estate.
32As set out below in more detail, I find that Ms. Scott could not have been involved in a conspiracy with the other Defendants because she did not attend the meetings on April 5 and 11, 2016, she did not keep Riley from Mr. Whaley, there is no evidence of an active agreement to further any conspiracy with the Defendants and she was not involved in the preparation of the main documents in issue.
The Severance Payment
33Ms. Scott’s participation in the conspiracy is alleged to have started during the April 5 and 11, meetings (“the April meetings”). The April meetings were attended by Ms. Whaley, Ms. Senike, Mr. Render, Mr. Laan and Ms. Yenson. Ms. Scott did not attend either meeting. However, her name was mentioned in the To-Do list that was generated from those meetings.
34Specifically, there was a reference at paragraph 10 of the To-Do list that Ms. Scott expressed a hope that Mr. Whaley would help her finance her acquisition of the other half of her family farm. The parties at the April meetings agreed that if Ms. Scott raised the issue again, she was to be told that her service to Mr. Whaley was appreciated but that Mr. Render was not in a position to make any promises to Ms. Scott about this. The To-Do list was never intended to be shared with Ms. Scott. She did not participate in any of this decision-making nor was she even aware of the existence of the To-Do list until this litigation commenced.
35The Plaintiff insists that Ms. Scott either received or was promised a payoff of $500,000. This is denied by Ms. Scott and there is no evidence that such a payment was made or promised.
36The Plaintiff alleged that Ms. Scott was in financial difficulty and therefore acted in furtherance of the conspiracy with the promise and receipt of a payoff for doing so. This is far-fetched and without foundation.
37Ms. Scott does not deny that she received a severance payment totalling $250,000 after the Stollery’s business closed. Invoices were produced by Ms. Scott showing she received “bonuses” of $75,000 on December 21, 2015 and the balance of the $250,000 on January 19, 2016.
38The Plaintiff made much of Ms. Scott’s initial evidence on cross-examination that she received $250,000 in 2017. Ms. Scott corrected this evidence almost immediately during her examination and confirmed the payments in accordance with the invoices referenced above. The Plaintiff insists this means that Ms. Scott received an additional $250,000 in 2017 which made up the balance of the $500,000 payment. There is no evidence that this is the case. The invoices support payment of a severance exactly as described by Ms. Scott. Production of the invoices was insufficient for the Plaintiff, so Ms. Scott also produced her personal banking records showing that the deposits of the severance amounts into her bank account matched the invoiced amounts.
39I accept Ms. Scott’s evidence that she received her compensation package at the time that Stollery’s was closing just like all of the other employees affected by the closure of the business and that she did not receive further severance payments in 2017. The Stollery’s business had long closed, and the real estate sold by that point. The $250,000 payment received by Ms. Scott was a severance paid to an employee of 30 years of tenure. There is no evidence that more was paid to her (other than some uncontested small amounts for services rendered after the business closed) or that what she was paid could be considered a payoff in relation to a conspiracy
40As for the request for the farm payment, she may well have asked for other amounts but there is no evidence she received them. Mr. Render specifically notes in the To-Do list that no specific promise was to be made to Ms. Scott about this.
The 2003 Will
41There is no dispute that Mr. Whaley had a 1986 Will and subsequently the Will drawn in 2003. There is an allegation by the Plaintiff that Ms. Scott was involved in Mr. Whaley’s testamentary planning because she assisted with the preparation of the 2003 Will. I do not find that this can be the case.
42In 2003 Mr. Whaley was about to undergo some minor surgery. He asked Ms. Scott to obtain a Will kit for him and requested that she type up a Will which named Mr. Sender and Ms. Senike as the Estate Trustees and left his Estate to Ms. Senike as the sole beneficiary.
43The Plaintiff alleges that Ms. Scott deliberately hid the 2003 Will for 14 years and then suddenly “found” it in January 2017. She apparently produced it at that point to spite her alleged co-conspirators Ms. Whaley and Mr. Render. The Plaintiff also points to a memo prepared by Mr. Laan in October 2015. In that memo Mr. Laan recorded that Ms. Scott told him about the 2003 Will and that on Mr. Whaley’s instructions she had put it in a sealed envelope in her safety deposit box.
44This recounting of the whereabouts of the 2003 Will do not accord with that of Ms. Scott. Ms. Scott explained that she does not have a safety deposit box. Mr. Laan deposed in his examination that he may have been wrong about the reference to a safety deposit box.
45Ms. Scott’s explanation was that after she prepared the 2003 Will she gave it to Mr. Whaley. She suggested that he have it redone in a proper form with a lawyer. She did not see the Will again until January 2017 when she found it in some of Mr. Whaley’s documents which were removed when Stollery’s had to abruptly move out of its premises due to a condition of the sale. Once found, Ms. Scott immediately gave the 2003 Will to Mr. Whaley’s lawyer. It is alleged that she was also involved in the revocation of the 2003 Will because she saw a reference to a revocation in an invoice from Mr. Laan.
46Ms. Scott’s evidence was that she knew little about the law of Wills and Estates and any interplay between the 1986 Will and the 2003 Will. She knew nothing about the revocation and never saw any invoice from Mr. Laan which contained reference to a revocation.
47Ms. Scott’s evidence makes sense. Whether there was an error or miscommunication about the safety deposit box is of little import. Why would Ms. Scott hold on to the 2003 Will and produce it in January 2017 to gain leverage or because she was upset with her alleged co-conspirators? I accept the submission of Ms. Scott’s counsel that if she was truly upset with the others involved, she would have sent a copy of the 2003 Will to Ms. Steinhards. She took no such steps. Rather, she did exactly what one would expect in her role as Mr. Whaley’s assistant, she gave the Will to Mr. Whaley’s lawyers. I find that the steps Ms. Scott took in relation to the 2003 Will cannot be interpreted as furthering any alleged conspiracy or participating in any estate planning for Mr. Whaley.
Was Ms. Scott Acting in a Fiduciary Capacity?
48The entire idea of Ms. Scott being a fiduciary to Mr. Whaley came about as a result of an oft-cited email in this case dated March 29, 2016 from Ms. Whaley to Ms. Scott, Mr. Render, Ms. Senike and Mr. Laan. The relevant portions of the email are reproduced below:
I understand that Deb Scott has been assisting Ed for quite some time now pre-any stroke with his financial affairs in accordance with his direction and or his expressed wishes. Ed trusts Deb and Deb has acted as a fiduciary to Ed. As such the person who has the most information as to Ed's financial assets and liabilities has been and is Deb, Therefore consultation with her in attempting to deal with the management of Ed's affairs is critical. Deb should not be under scrutiny and though I believe she has felt she has been unfairly scrutinized that has been addressed. I understand there are outstanding substantial taxes owed imminently. There should be no arrears and penalties flowing from a failure to file on time. I understand Ray is attempting to meet with the accountant and as such Deb should be of assistance in this regard.
Ed may well have unknown liabilities including possible claims against him whether meritorious or not whether now or when he passes whenever that may be. In that regard Deb will prove invaluable. [Emphasis added]
49Ms. Scott’s evidence is that she was more than a long-term employee of Mr. Whaley, she was his friend. She viewed part of her job as protecting him and assisting him. She confirmed that she was often a sounding board for Mr. Whaley about financial decisions, but his word was always final, and she did nothing without his express approval.
50At the time the abovementioned email was written Mr. Whaley was 87 years old. Ms. Scott had access to all of his bank accounts. While the focus of the Plaintiff was on Ms. Whaley’s statement that Ms. Scott was a fiduciary, the real focus should be on the previous statement in that email which Ms. Whaley states that Ms. Scott was acting in this capacity in accordance with Mr. Whaley’s direction and expressed wishes.
51Ms. Scott had no discretion or decision-making authority in relation to Mr. Whaley’s assets. As per the principles in Crystal Tile & Marble Ltd. v. Dixie Marble & Granite Inc., 2007 ONCA 566 at para. 2, she was at most a paid employee who also at times acted as a sounding board and paid invoices on Mr. Whaley’s instructions. Further, any direct involvement on her part with Mr. Whaley’s finances ended on April 7, 2016 when Mr. Render became Mr. Whaley’s Attorney for Property.
52It is true that Ms. Scott assisted in making the $4M payment for Mr. Whaley’s taxes and assisted Mr. Render with respect to the various passwords and banking contacts required for moving Mr. Whaley’s money after April 7, 2016. However, Ms. Scott had no decision-making authority to move any of those funds. Her role at that point became one of mere facilitator with respect to Mr. Render’s authority as POA for Property because she had key information about accounts that he did not.
53Ms. Scott was aware that Mr. Render used the POA for Property to assist in the movement of Mr. Whaley’s funds. Ms. Scott assisted Mr. Render by making introductions to key bank personnel and providing passwords as required. The Plaintiff insists that Ms. Scott’s knowledge that funds were being moved meant that she was a co-conspirator. This cannot be the case. It was not until this litigation was started that Ms. Scott learned about the details of transfers into any trusts.
54The Plaintiff argued that once Mr. Whaley went into hospital in March 2016 Ms. Scott began acting unilaterally. She was no longer employed by Stollery’s and no longer receiving instructions from Mr. Whaley. For example, when Ms. Whaley told her not to pay Ms. Duong’s rent, this was contrary to Mr. Whaley’s specific instructions to Mr. Laan. I do not accept that Ms. Scott was acting unilaterally. Ms. Scott testified on examination that she did discuss this issue with Mr. Whaley, and she was instructed not to pay Ms. Duong or permit her to visit him at Teddington’s.
55In conclusion I do not find that Ms. Scott was a fiduciary to Mr.Whaley. Even if she was of the view that the management of Mr. Whaley’s assets after April 7, 2016 was in some way improper (which I specifically do not find is the case for the purpose of this motion), Ms. Scott was powerless to intervene. Her role was as a liaison because of the knowledge she had from dealing with Mr. Whaley’s affairs for over 30 years.
The Bait and Switch
56It is alleged that between April 6-8, 2016 Ms. Scott took part in a “bait and switch” scheme. Specifically, it is alleged that Mr. Whaley was tricked into signing a Power of Attorney for Property appointing Mr. Render and Ms. Senike as his Attorneys for Property in a first step towards stripping him of $34M and leaving him penniless.
57On April 6, 2016 Mr. Laan visited Mr. Whaley and asked him to sign a POA for Property naming Ms. Scott and Mr. Render as his Attorneys. Mr. Whaley indicated that he preferred to name Ms. Senike and Mr. Render. Ms. Scott’s evidence was that she knew there had been discussions about a POA for Property. For her part, she had no interest in becoming the POA for Property because she did not want to be put in a decision-making role.
58On April 7, 2016 Mr. Laan attended hospital with the revised POA for Mr. Whaley’s signature. This was followed by an email on the same day from Ms. Whaley to Mr. Laan, Mr. Render, Ms. Yenson, Ms. Senike and Ms. Scott in which she confirms that Ms. Senike would renounce as POA for Property after signing and that Ms. Whaley will prepare the revocation.
59Because Ms. Scott was copied on emails relating to the preparation of the POA for Property and the intention that Ms. Senike renounce, it is alleged that the POA was fraudulent, and that Ms. Scott was involved in the so-called bait and switch. According to the Plaintiff this is confirmed in Mr. Render’s April 8, 2016 email in which he stated that Ms. Scott was “totally okay with the changes in the POA. She said she is more than willing to help us in any way she can.”
60It should be made clear that the term “bait and switch” came about as result of Mr. Laan’s reference and was not a label given by Ms. Scott. To be clear, Ms. Scott was not involved in the drafting of the POA for Property and did not want to be an Attorney. Her email to Ms. Whaley, Mr. Render, Mr. Laan and Ms. Senike of April 8, 2016 makes it clear that Ms. Scott wanted Mr. Whaley to know that she did not request to be named his POA for Property and that it was important to her that her relationship with Mr. Whaley was not put in jeopardy.
61The Plaintiff submits that Ms. Scott should have told Mr. Whaley about her knowledge of the bait and switch scheme. The Plaintiff submits that Ms. Scott knew that Mr. Whaley wanted both Mr. Render and Ms. Senike to act as POAs for Property and that Ms. Senike’s intention to renounce was contrary to Mr. Whaley’s wishes.
62The Court is at a loss to understand why Ms. Scott would have had any obligation to take steps in this regard. She had no control over who was appointed or who renounced as Mr. Whaley’s POAs for Property. She was clear that these were family decisions in which she had no involvement. If Ms. Senike chose to renounce, it was up to her to advise her father, not Ms. Scott. In any event, the evidence of Mr. Laan was that Mr. Whaley was indifferent as to Ms. Senike’s renunciation.
63The Plaintiff attempts to elevate Ms. Scott’s involvement in the POA issues as somehow meaning that she conspired to implement the alleged “stripping” of Mr. Whaley of his wealth. That is much too large a leap to make from the evidence in the record. Ms. Scott had no influence over Mr. Whaley as to who he wanted as his POAs for Property. He did not want Ms. Scott in a decision-making role, and she was content with that. Further, Ms. Scott had no control over any decision by Ms. Senike to renounce as POA for Property. As indicated above, once the POA for Property was signed, whatever authority Ms. Scott may have had before based on Mr. Whaley’s instructions was now completely gone. Mr. Render had all of the decision-making authority and no obligation to consult with Ms. Scott.
64In summary, I find that although Ms. Scott was aware of the Power of Attorney drafting and signing by way of being copied on emails, she did not conspire with others with respect to either the signing of the POA for Property and steps that took place after. She simply had no authority in that regard, nor did she seek such authority.
The Phone Issue and the Alleged Cloistering of Mr. Whaley
65The Plaintiff alleges that after Mr. Whaley had his stroke on March 8, 2016 that Ms. Scott removed his phone so that he could not contact other people and so that her co-conspirators could carry out their plan without his interference. Further, there is an allegation that Ms. Scott was retaining Mr. Whaley’s phone so that Riley could not contact him.
66In her April 8, 2016 email to Ms. Senike, Ms. Whaley, Mr. Laan and Mr. Render, Ms. Scott confirms that she has Mr. Whaley’s phone in her possession but that Mr. Whaley has asked her to return the phone to him so that he may contact an individual named “Domenic.”
67Ms. Scott asks for direction in the email because she is not sure what to do. Ms. Senike responded to her and suggested that if Ms. Scott was uncomfortable keeping the phone that she could give it either to her or Mr. Render. Ms. Senike calls Domenic “a predator” from who her father needs to be protected. Ms. Scott then returned the phone to Ms. Senike.
68As for the allegation that Ms. Scott took the phone to prevent communication between Riley and Mr. Whaley, there is no evidence this is the case. There is evidence that Ms. Scott called Ms. Steinhards to request a photo of Riley for Mr. Whaley’s bedside. There was no evidence that during the period that Ms. Scott had the phone that either Riley or Ms. Steinhards attempted to contact Mr. Whaley via the phone.
69I find that the phone issue is a red herring. Ms. Scott deposed that she viewed part of her role as keeping Mr. Whaley from making bad decisions. It appeared that he may have had contacts, such as Domenic, who did not always have his best interests at heart. As a long- time friend and former employee Ms. Scott thought that by keeping his phone away she was maintaining her role as Mr. Whaley’s protector. When she began to have doubts about whether she had the right to do that, she immediately gave the phone to a family member.
70The Plaintiff also alleges that Ms. Scott was involved in the conspiracy by cloistering Mr. Whaley from the Plaintiff which involved secretly moving him to a retirement home and hiding his death from the Plaintiff. There is no evidence that this was the case. Ms. Scott’s evidence was that she never received a call from either Riley or Ms. Steinhards asking about Mr. Whaley’s whereabouts.
71There are allegations that Ms. Scott harboured animus against Riley which motivated her to participate in the conspiracy. On the contrary, the only evidence about Ms. Scott and Riley after Mr. Whaley had his heart attack was Ms. Scott’s call to Ms. Steinhards requesting a photo of Riley for Mr. Whaley’s bedside. Such a call would appear to be completely at odds with the allegation of any animus towards Riley.
72The decision to move Mr. Whaley to Teddington’s was a family decision in which Ms. Scott had no right to participate. Likewise, any decisions related to his death and funeral would not have been within her purview.
73The Plaintiff submitted that Ms. Scott lied about Mr. Whaley’s relationship with Riley in the face of Mr. Whaley’s own sworn testimony. The Plaintiff takes the position that Ms. Scott lied under oath when she testified that Mr. Whaley did not want to be described as Riley’s father because he believed he was not. This contradicts Mr. Whaley’s own Family Court position and evidence in which he sought joint custody of Riley as well as extensive access. The Plaintiff pointed out that Ms. Scott assisted Mr. Whaley in the drafting of his Family Court affidavits which set out his close relationship with Riley.
74There can be no doubt that Ms. Scott’s evidence about Mr. Whaley’s thoughts about Riley was different than the position taken by Mr. Whaley in Family Court. However, it is unclear how this can be considered a conspiracy or in any way intended to harm Riley. Ms. Scott’s evidence was consistent that she was Mr. Whaley’s trusted confidante about many things. If his views about Riley were different than those expressed in his Family Court materials, I am uncertain how this can be blamed on Ms. Scott who was bound to tell the truth in her affidavit sworn April 18, 2018.
The Other Torts Claimed Against Ms. Scott
A. Abuse of Process
75Riley claims that the Dependency Claim was an abuse of process in which Ms. Scott was involved. Ms. Scott is not a party to that Claim. She gave evidence in that proceeding at the request of the Whaley family. She did not initiate the claim or make any specific threat or do any specific act in furtherance of an improper purpose in relation to that Claim.
76In accordance with the principles set out in Harris v. Glaxosmithkline Inc.,2010 ONCA 872,106 OR (3d) 661, at para 27, leave to appeal refused, 34111(July 14, 2017), such a claim cannot succeed against Ms. Scott. She was only a witness in relation to that Claim and as a result there is no evidence of any special damages that may have flowed from her involvement.
B. Unjust Enrichment
77The Plaintiff claims that the Defendants received the benefit of certain payments from Mr. Whaley and later from his Estate without juristic reason, thereby resulting in a corresponding deprivation to Riley and her claims against the Estate.
78There is no evidence that any of the funds transferred to the alter ego trust were received by Ms. Scott. From the $34,000,000 in issue Ms. Scott received $1,600 by way of compensation for services rendered in relation to assisting with the wrapping up of Mr. Whaley’s affairs. There is no evidence that such an amount was improperly paid to Ms. Scott or that it was a benefit that should have been paid to Riley. There was a juristic reason for the payment to Ms. Scott and in accordance with the principles set out in Kerr v. Baranow, 2011 SCC 10, [2011] 1 SCR 269, at para 40, its retention by Ms. Scott was not unjust.
C. Unconscionable Procurement
79This claim is predicated on Ms. Scott having received some benefit from the alter ego trust. As per the discussion above, there is no evidence that the $1,600 payment for services was an unconscionable procurement. A reasonable payment for services rendered cannot be unconscionable nor is it a “significant” benefit to Ms. Scott. This claim against Ms. Scott must also fail
D. Intentional Interference with Economic Relations
80Riley pleads that Ms. Scott committed an unlawful act against a third party by which she intended to harm Riley as per the principles set out in Crown Crest Financial Corp v. Sabbah, 2019 ONSC 7114, 61 CCLT (4th) 292, at para 41. The alleged unlawful act is the taking of Mr. Whaley’s phone.
81Riley pleads that Ms. Scott’s actions were “flagrant and outrageous conduct” intended to harm her and destroy her relationship with Mr. Whaley. There is no evidence of this. I have already found that the taking of Mr. Whaley’s phone by Ms. Scott was intended as an act of safekeeping in line with her view that part of her role was to protect Mr. Whaley and ensure he did not make bad decisions. When she began to feel conflicted about her retention of the phone, when the Domenic issue arose, she gave the phone to a family member.
82Further, the only evidence about Ms. Scott and Riley is her attempt to obtain a photo of Riley for Mr. Whaley’s bedside. Surely that cannot be any form of flagrant or outrageous conduct intended to interfere with Riley’s relationship with Mr. Whaley. Indeed, without any further evidence on the point, it would tend to prove the opposite.
E. Intentional Infliction of Mental Suffering
83This claim against Ms. Scott must be dismissed as there was no evidence at all on this motion with respect to any mental suffering on the part of Riley.
ORDERS AND COSTS
84Given all of the above, partial summary judgment shall be granted to Ms. Scott and the crossclaims of the Defendants Mr. Laan and Ms. Yenson against Ms. Scott shall be dismissed.
85The parties may submit written submissions on costs of no more than four pages in length (hyperlinked) and exclusive of any Bill of Costs or Offer to Settle. Ms. Scott shall upload her submissions to Caselines within five days of the release of this decision, the Plaintiff five days after and any reply three days after the Plaintiff’s submissions. If no costs submissions are received within 35 days of the release of this decision, costs shall be deemed to be settled.
C. Gilmore, J.
Date: December 14, 2022