Court File and Parties

COURT FILE NO.: CV-23-00698268-00ES

DATE: 20230824

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE POWERS OF ATTORNEY OF LARRY ALVIN MARSHALL

BETWEEN: SHAWN HOLLINGER, as Attorney for Personal Care of Larry Alvin Marshall and MD PRIVATE TRUST COMPANY, as Attorney for Property of Larry Alvin Marshall, Applicants

• and –

THOMAS PATRICK MARSHALL, BRYAN DAVID MARSHALL, LARRY ALVIN MARSHALL and THE PUBLIC GUARDIAN and TRUSTEE, Respondents

BEFORE: FL Myers J

COUNSEL: Angelique N. Moss, for Shawn Hollinger Daniel J. Dochylo, for MD Private Trust Company Arnold Zweig, for Thomas Marshall and Bryan Marshall Shael Eisen, for himself as Interim Litigation Guardian of Larry Marshall

HEARD: August 23, 2023

ENDORSEMENT

[1] At a case conference on August 18, 2023, the parties discussed the process steps needed to move this application forward and how to help Mr. Larry Marshall in the interim. I made the following directions:

a. I adjourn the case conference to Wednesday, August 23, 2023 at 4:00 p.m. to allow the lawyers to discuss and try to agree on a timetable for the proceedings;

b. In the meantime, it is important to try to get Larry Marshall out of the hospital; and

c. If Mr. Eisen and Mr. Zweig can agree, there is no reason for Larry Marshall leaving the hospital to await the hearing next week. It may be, for example, that the facilities will agree to let Larry Marshall have short test stays without a significant investment or long-term contract being needed at this time. However, if they cannot agree on where he can or should go on an interim basis, I will impose interim terms at the next case conference on whatever evidence, formal or informal, the parties are able to muster by that time.

[2] On the resumption of the case conference, counsel confirmed that they had not been able to agree on a schedule or on interim terms to move Larry Marshall out of the hospital.

[3] The applicants are named attorneys of Larry Marshal under powers of attorney documents that he signed in February, 2022.

[4] The respondents are Larry Marshall’s adult sons. They purport to act under powers of attorney signed by Larry Marshall earlier this year.

[5] The applicants have brought this proceeding to invalidate the respondents’ powers of attorney on the basis that Larry Marshall lacked capacity to sign them at the time that he did so.

[6] Mr. Eisen is the interim litigation guardian for Larry Marshall.

[7] As discussed in the August 18, 2023 endorsement, the applicants and Mr. Eisen wish to see Larry Marshall move to Sunrise Retirement Home in Oakville. It is a private facility that offers facilities and programming to assist Larry Marshall with rehabilitation and to provide for his health, daily care, and other needs.

[8] The respondents prefer an outcome under which their father moves to a public facility in or near Arnprior, Ontario. Although Thomas Marshall is currently living in his father’s home in Oakville, he has previously been living in the father’s other property in Arnprior. Apparently, the family lived in Arnprior a long time ago. Thomas wants his father to be nearby so he can continue to care for him as he says he has for the past several months.

[9] The applicants submit that Larry Marshall has no contacts or supports in Arnprior. His close family and friends are all in Oakville where he has lived for many years. The sons have been estranged until emerging very recently as their father became ill. The applicants say there is nothing for Larry Marshall in Arnprior. At a prior case conference Larry Marshall said that he may still know some people there if they are still alive. It is apparent that he has not maintained contacts in Arnprior. Moreover, Thomas has allowed Larry Marshall’s house in Arnprior to deteriorate to the point of near uninhabitability.

[10] Of greater importance, in my view, is that Larry Marshall is a man of some wealth. He can readily afford a private facility that provides rehabilitation services and can meet his day-to-day needs. In the brief period during which Larry Marshall went home from the hospital earlier this year, Thomas fired the PSWs whom the applicants had put in place to provide care for Larry Marshall. I do not know if or how Thomas can provide the round-the-clock assistance that his father needs 24 hours a day and seven days a week.

[11]  There is also no indication in the record that the public facility in Arnprior can provide anything but the most basic publicly funded care to its residents. Larry Marshall has limited mobility and he has been held in a hospital unnecessarily for weeks, if not months, as this matter has inched forward. It is plainly in his best interests to obtain rehabilitation and care services as soon as possible.

[12] As discussed in my last endorsement, Thomas Marshall expressed a concern that if Larry Marshall goes to a private facility, even on an interim basis, he could lose the ability to claim urgent priority under the public health care system. This could prevent him from having priority access to a bed in Arnprior where Larry Marshall and the respondents want him to go. The unsworn information from Mr. Eisen is that even with an “urgent” classification under the public health care system, the patient does not have a right to make a specific choice of the facility into which he will be placed. Moreover, even with urgency, the placement can still take months or years.

[13] There is no evidence or even an unsworn indication that the Arnprior facility has a bed available for Larry Marshall. The indication is that it has a lengthy waiting list. Beds in private facilities are available (for money).

[14] I do not need to rely on this unsworn information in making the interim decision that I make. Looking solely at the best interests of Larry Marshall, there is no reason for him to be confined to a public institution. I know nothing of the Arnprior facility under discussion. I make no suggestion that it does anything wrong or outside of its mandate such as it is. But Larry Marshall can afford the best of care and amenities for himself. While Thomas wants Larry Marshall to be nearer to him in Arnprior, there is no evidence that Thomas is prejudiced at all living in Oakville for free in his father’s $2 million house for the present time.

[15] As I said in my prior endorsement as well, cost is a minor factor. Larry Marshall had agreed to go into private care until he changed his mind when he went home from the hospital and lived briefly with Thomas earlier this year. The cost of PSWs and private care was apparently not an issue for him previously.

[16] Mr. Eisen has obtained a capacity assessment and a retroactive capacity assessment as at the time of the respondents’ new powers of attorney earlier this year. No one doubts that Larry Marshall lacks capacity today. The assessor found that he lacked capacity as well when he granted the powers of attorney to the respondents.

[17] Mr. Zweig has delivered an affidavit from the lawyer who prepared the respondents’ new powers of attorney. He says that Larry Marshall clearly understood what he was doing when he signed the documents. In light of the medical file and the capacity assessor’s view, I would be interested in understanding the scope of the inquiries made by counsel to assess Larry Marshall’s capacity to grant the powers of attorney. He might well have sat at a coffee shop table saying he wants his sons to care for him. But did he have any idea what that meant in terms of economics, legality, and practicality? Did he appreciate the nature of his health limitations and his need for rehabilitation and future care? Did he appreciate the cost of his care? Was he able to assess whether his sons had the wherewithal to provide him the rehabilitation and care that he needs and previously wanted? Did he appreciate the extent of his property and his ability to afford private, high-end care? Was he able to foresee the risks attendant on not having the care that he needs or wants? Did he understand the potential conflicting interests of his sons? Put less charitably by the applicants, was he able to appreciate that he was giving his sons, from whom he was estranged for decades, authority to put him in a public home if they were intent on preserving his assets for themselves?

[18] Mr. Zweig submits that if Larry Marshall lacked capacity earlier this year, so as to invalidate the powers of attorney in favour of the respondents, they may wish to argue that Larry Marshall equally lacked capacity a year earlier when he granted powers of attorney to the applicants. But the respondents both swore evidence that their father had capacity to appoint them as his attorneys this year. If they now attack his capacity a year earlier, to try to undermine the applicants’ authority, they implicitly undermine their own evidence and their own authority.

[19] Moreover, if the respondents argue that Larry Marshall lacked capacity in February, 2022, when he appointed the applicants as his attorneys, then they are also implicitly saying that his January, 2022 gift of $900,000 to the respondent Bryan Marshall is suspect. That puts a wedge between the interests of Bryan and Thomas Marshall. But it is consistent with the allegation that Thomas says that he is looking for his million.

[20] It is noteworthy that it was shortly after being convinced to make that gift to Bryan that Larry Marshall voluntarily turned over his authority over his property to the applicant institutional financial advisor.

[21] Unless Larry Marshall has a pre-existing will with a different outcome, the sons will inherit his assets on his death. Their financial interest in their father’s affairs is readily understandable. Moreover, I do not ignore that they have taken a greater interest in his life recently and this apparently pleases Larry Marshall.

[22] Mr. Zweig urges me not to leave the applicants in charge of the affairs of Larry Marshall. The applicants ask to be recognized or, alternatively for Mr. Eisen to be appointed guardian pending the final outcome of the application. Mr. Zweig does not have instructions to consent to this appointment. If, however, his clients successfully challenge the applicants’ powers of attorney, then there will be no one with a power of attorney so a guardian will be required. The respondents need to decide what they want.

[23] While a guardian need not be an independent third party, the benefits of having an independent third party who can focus on the fundamental protection and support of the patient are self-evident at least while the parties are adverse and in active litigation.

[24] Unfortunately, the Substitute Decisions Act, 1992, SO 1992, c 30, does not provide for the appointment of a guardian for personal care on an interim or temporary basis except on the application of the Public Guardian and Trustee. And in that case, the interim guardian must be the PGT. See s. 62 of the statute.

[25] Mr. Eisen points out that there are cases in which a court has made an appointment of a guardian of the person under s. 55 of the statute intending it to be a temporary decision. The order can be varied under s. 61 to substitute a new guardian if it is found to be appropriate to do so later.

[26] I am not prepared to proceed in this fashion. An order appointing a guardian is a final order. Giving a final order at a case conference is unusual. If so minded, I could find my way to hold that this case conference was also an adjournment of the hearing previously scheduled for July 18, 2023. I would not let this process issue stand in the way of doing what is best for Larry Marshall.

[27] But I do pause at making a guardianship order at this time even if all parties understand that it is intended to be subject to variation. Making a guardianship order has serious consequences. It not only strips the patient of his autonomy, but it strips him of the right to appoint attorneys and caretakers of his own choosing. It is an intrusive and definitive order. It is subject to appeal to the Court of Appeal as of right.

[28] Moreover, under s. 55 (2)(b) of the statute, the court is expressly prohibited from making a guardianship order for a person where the need for the appointment can be met by an alternative action that does not require the court to find that the person lacks capacity and that is less restrictive of his rights.

[29] Here, Larry Marshall has appointed four attorneys in the applicants and the respondents. Before I can consider appointing a guardian, I would have to find that all four appointments were unsustainable. I am not in a position to do that today.

[30] Mr. Zweig submits that his clients need 30 days to decide what to do. This may include trying to obtain medical evidence to challenge the applicants’ powers of attorney and bringing their own guardianship application.

[31] After hearing from counsel, I direct the following schedule applies:

a. The respondents may deliver further evidence and may commence an application of their own, if so advised, by September 29, 2023. If the respondents commence an application, it is to be heard with this one and is subject to this timetable;

b. The applicants will have to October 15, 2023 to reply in this application and to respond to any new application commenced by the respondents;

c. If the respondents commence an application, they will then have until October 29, 2023 to deliver reply evidence in that application alone;

d. Examinations under Rule 39.03 and cross-examinations on affidavits shall be conducted by November 17, 2023; and

e. Rule 34.12 (2) applies to all examinations and cross-examinations in these proceeding(s). That is, all questions to which objections are made by counsel shall be answered on the record despite the objection. No one may use an answer to a question to which objection is made in a factum or at the hearing without either the withdrawal of the objection or a ruling of the court at the hearing of the proceeding(s). There will be no refusals motions. The only exception to this direction is that questions objected to on the basis of lawyer client privilege (and not any other privilege) do not need to be answered without a ruling obtained in advance. Any alleged abuse of this rule may be made the subject of an immediate case conference under Rule 34.14 that I will hear by telephone. I may be contacted by email through my Judicial Assistant therese.navrotski@ontairo.ca. This should not be necessary as no counsel should be abusing the proper scope of examination in any event. The court will take allegations of breach most seriously.

[32] Once they have booked examination dates, counsel will book a case conference with me to be held as soon after the completion of the foregoing schedule as possible. I will provide a hearing date after assessing the status of preparations. A quick hearing date is quite likely.

[33] What to do in the interim?

[34] Whether at the current hospital or the prior one, there has been a need for a clear designation of authority to direct the hospital and to exercise Larry Marshall’s rights. In their Notice of Application, the applicants sought an order for an assessment of Larry Marshall and an order prohibiting the respondents from interfering with the process. In my view, the request for interim relief provides the way forward. Now that the capacity assessments are done, they factor into the request for ongoing interim relief.

[35] Under Rule 50.13 (6) of the Rules of Civil Procedure, the court can make any interlocutory order at a case conference as long as the parties were on notice. As set out in para 1 (c) above, the parties had notice that the interim terms for treatment of Larry Marshall would be resolved today if they could not agree. I received case conference briefs and heard counsel’s submissions.

[36] The court can make an order, before a trial or final hearing is held, to enjoin or prohibit parties from conduct that is alleged to be unlawful pending the later trial or hearing of the case. An order will be made where the applicants demonstrate they have at least a serious issue to be tried on the merits; where an order is required to prevent harm of a type that cannot be compensated in money after trial; and where the balance of convenience or the comparison of equities favours making an order.

[37] The capacity assessments and the medical file before me provide more than a serious issue to be tried as to Larry Marshall’s capacity at the time he granted the respondents their powers of attorney. I do not foreclose the inquiry of course. But I find that there is a strong prima facie case that the respondents’ powers of attorney are likely void.

[38] The applicants are not before the court advancing their personal interests. They are here to advance the rights of Larry Marshall as they see them. I am satisfied that Larry Marshall faces irreparable harm if the respondents are not prohibited from exercising their powers of attorney on an interim basis. Money damages later cannot make up for a lack of rehabilitation and a lack of care for Larry Marshall for the next however-many months.

[39] Everyone wants Larry Marshall to be out of the hospital. He needs to get to a place where he can be cared for and rehabilitated. Were it necessary I can take judicial notice of that fact that an elderly person who has suffered serious physical injuries and is confined to a hospital setting without undergoing rehab is at much greater risk of further injury and physical and mental decline.

[40] If I grant an injunction on a temporary basis precluding the respondents from asserting their powers of attorney, Larry Marshall will be delayed several months in being taken to Arnprior assuming a bed can be found for him there. I already found above that there is no evidence that Thomas Marshall suffers any harm in staying in Oakville while this proceeding plays out. It is possible that Larry Marshall could lose priority placement in the public system. But there is no evidence of whether that really has much effect in any event. Moreover, Larry Marshall does not need to rely on the public system. It is true that going to a private retirement home will cost Larry Marshall money. But that is what his money is for. I put no weight on any financial interest of the respondents in maximizing their inheritance. (I note that Mr. Zweig did not make any argument along this line. Rather, the applicants would have me infer that there is avariciousness at play in the sons’ alleged new-found interest in their father’s life.)

[41] By contrast, if I refuse an injunction (and I cannot appoint a temporary or interim guardian), the situation is intolerable. The respondents will continue to exert authority under hotly contested powers of attorney. The hospital and retirement homes would not have certainty of their authority. Moreover, their conflict of interest and my finding of a strong prima facie case that the powers of attorney are invalid, make this an inequitable and unjust outcome.

[42] My greatest concern is for the well-bring of Larry Marshall. The balance of convenience therefore lies in favour of making an interim order that sees him get into the best care as soon as possible.

[43] Mr. Zweig expressly submitted that the respondents do not want the applicants left solely in charge. I understand that. I will put some boundaries around their authority since this is only an interim order. But the applicable law limits my options. I cannot appoint Mr. Eisen as interim guardian. The parties can be much more creative if they all consent. Perhaps the respondents will quickly agree to an appointment of a neutral guardian for Larry Marshall. Mr. Eisen would be an excellent choice for example. I can be available on short notice if the parties all agree on this or another outcome.

[44] An order is therefore to go as follows:

a. The timetable set out above is to be followed;

b. Until a final order is made in this proceeding, the respondents are prohibited and enjoined from directly or indirectly acting under, relying upon, or making any use whatsoever of the powers of attorney in their favour signed by Larry Marshall;

c. This order results in the powers of attorney of the applicants being applicable and recognized unless or until the respondents’ powers of attorney are found valid or until the applicants’ powers of attorney are themselves declared void. The applicants therefore have exclusive authority to act on behalf of Larry Marshall under their powers of attorney for the time being;

d. Apart from moving Larry Marshall to a private retirement home in Oakville, as proposed by the applicants, there does not appear to be any need for the applicants to make any major decisions for Larry Marshall at this time. Apart from the move (and its financial consequences) the applicants shall therefore provide one week notice to the respondents, through their counsel, before making any material or significant decision for Larry Marshall under their powers of attorney. They shall also report to the respondents from time-to-time (no more than monthly) on any changes to Larry Marshall’s personal and financial status; and

e. In the event that an urgent situation arises, the applicants will give as much notice to the respondents’ counsel as circumstances allow. The respondents may seek an urgent hearing if so advised. However, for clarity, in an urgent situation, the applicants are not limited in their authority to exercise their rights under their powers of attorney as they deem appropriate unless or until an order of the court is actually made that limits them. The simple bringing of a motion or case conference does not have any preclusive or limiting effect on the applicants’ entitlement to act under their powers of attorney in urgent circumstances.

[45] For now, Mr. Eisen remains as Larry Marshall’s litigation guardian. I leave it to him and to the parties to help define his role (or any changes in his role) going forward.

[46] Costs of the process to date are reserved to the judge who finally resolves the application.

FL Myers J

Date: August 24, 2023