Bryan v. Geddes, 2022 ONSC 7391

COURT FILE NO.: CV-22-146-00

DATE: 2022 09 26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BRYAN v. GEDDES

BEFORE: MCSWEENEY J.

COUNSEL: G. Weedon, for the Applicant

W. Gilmour for the Powers of Attorney of Defendant Doreen Geddes

K. Ballweg for the Public Guardian Trustee

HEARD: September 26, 2022

ENDORSEMENT

1This application was brought on an urgent basis.

2Plaintiff seeks injunctive relief to ensure that defendant Doreen Geddes, whose financial matters are being handled by her two sons as powers of attorney, does not deplete her funds so that she becomes unable to satisfy a judgment against her.

3It is not disputed that Doreen Geddes is at this time fo her life no longer capable of instructing counsel.

4Nor, for the purposes of this motion is it disputed that the plaintiff has sufficiently strong prima facie case that the injunction analysis in RJR MacDonald should focus in this matter on balance of convenience and irreparable harm arguments.

5Mr. Gilmour served and uploaded to CaseLines a brief affidavit from one of the powers of attorney, son Donald Geddes, which asserts that there is no need for an injunction because, in essence, his mother’s assets will not be dissipated nor leave the jurisdiction pending the resolution of this litigation.

6The relief sought includes appointment of PGT as litigation guardian and an order that Doreen Geddes’ real property currently listed for sale have sale proceeds paid into court pending resolution of the action.

7I have reviewed the material filed, including the Donald Geddes affidavit, served but not filed (which Mr. Gilmour undertook to file forthwith following the hearing of the motion today).

8I have also considered the submissions of counsel.

9I find on the basis of the evidence that dissipation of the assets of Doreen Geddes is a real and ongoing concern with respect to the management of her real property assets by her sons.

10The level of concern is such that other proceedings have been commenced, apparently, by the PGT; and also her bank, CIBC, is bringing a matter before the court. These matters are scheduled for hearing next month.

11Among the issues in the other proceedings will be whether Doreen Geddes’ sons, or the PGT, should be appointed as her guardians of property.

12While that maybe a live issue between/among Doreen Geddes, her sons, the PGT, and her bank, the only motion before me today is brought by the plaintiff regarding her action for damages for the defendant’s failure to close a real estate purchase.

13I am satisfied that the balance of convenience is appropriately struck in this matter, with respect to ensuring Doreen Geddes will have liquid resources to address or meet the costs of resolving the litigation against her, by granting an order for payment into court of net sale proceeds from currently listed properties of the defendant, and by appointing PGT litigation guardian in this action.

14I note for the record that the material uploaded by Mr. Gilmour did not permit me to make the factual finding he requested, that is, that there is “more than sufficient” equity in the defendant’s property at 18 Crestview Ave, Brampton, to satisfy a judgment in the amount of $185,000 in this case.

15I therefore order that sale proceeds of both 18 Crestview Ave, Brampton, and the defendant’s 15 Golding Avenue, Brampton property, be paid into court to the credit of this action pending further order of the court.

16I further appoint the PGT as litigation guardian for Doreen Geddes in this action, in view of the concern based on the evidence that there may be a conflict of interest between her sons, as her powers of attorney, and herself.

17The plaintiff is entitled to her costs of this motion, which I fix at $10,000 inclusive (ten thousand dollars), payable to her by the defendant in any event of the cause.

18Draft order, as amended by the Court, signed and to issue.

19Court office is asked to kindly expedite issuance and entering of this order.

McSweeney J.