Court File and Parties

COURT FILE NO.: CV-22-00676632-0000 DATE: 2023-10-19 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Concentra Trust, Plaintiff AND: James Russell Connacher, Defendant

BEFORE: Justice A.P. Ramsay

COUNSEL: Joseph Figliomeni and Tim Phelan, for the Plaintiff Conor D. O’Hare, for the Defendant

HEARD: March 14, 2023

Reasons for Decision

I. Introduction

[1] The defendant is in his mid-eighties. In January 2019, he suffered a mini-stroke and underwent rehabilitation. Four capacity assessments completed at various times concluded that the defendant was either capable of executing a will or capable of making and revoking new powers of attorney. The defendant’s youngest son commenced an application seeking, among other things, the appointment of a guardian of property and guardian of the person with respect to the defendant.

[2] The parties to the guardianship application participated in a mediation and ultimately agreed to resolve the application on terms. Those terms were subsequently incorporated into a consent order issued by the application judge. As a term of the settlement, the defendant agreed to appoint the plaintiff as attorney of property and, in June 2021, the defendant granted a continuing power of attorney to the plaintiff. Prior to doing so, the plaintiff and the defendant entered into a contract governing the plaintiff’s remuneration for acting as the defendant’s attorney for property. The contract was incorporated by reference into the continuing power of attorney.

[3] The defendant later revoked the continuing power of attorney, disputes the quantum claimed by the plaintiff as compensation, and has refused to pay. The plaintiff commenced this action to enforce the agreement. The defendant maintains that the plaintiff’s compensation is governed by the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”) and regulation thereunder with respect to compensation of an attorney of property, and the jurisprudence determining what is a fair and reasonable compensation.

II. Nature of the motion

[4] The plaintiff, Concentra Trust, brings this motion for summary judgment seeking damages in the amount of $400,392.06 said to be owed under a compensation agreement for its services rendered as the attorney for property for the defendant under a continuing power of attorney. The plaintiff also seeks prejudgment and post-judgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43.

III. The Parties

[5] The plaintiff, Concentra Trust, is a federal trust company and a wholly owned subsidiary of a Schedule I chartered Canadian bank, Concentra Bank.

[6] The defendant, James Russell Connacher, is the former Chairman of Gordon Capital Corporation, an investment banking firm in Toronto.

IV. Background

[7] On or about December 3, 2020, the defendant’s youngest son, Ian Connacher, commenced an application under ss. 22 and 55 of the SDA (“the Guardianship Application”), to obtain an order appointing a guardian of property and a guardian of the person for the defendant. The defendant opposed the Application.

[8] The parties to the Guardianship Application included the defendant’s youngest son, Ian Connacher, as party applicant, and included the defendant’s other three sons, David Connacher, Nathaniel Connacher, and James Connacher Jr., as well as the defendant’s grandson, Ryan Connacher, and the Public Guardian and Trustee, as party respondents.

[9] At the time the Application was commenced, the defendant had a continuing power of attorney for property dated July 6, 2020, which named his sons as attorneys for property.

[10] The Application came before Justice Koehnen. On March 23, 2021, Justice Koehnen made an order, on the consent of the parties, requiring the parties to the Guardianship Application to participate in a mediation. On May 3, 2021, the parties participated in the first day of a two-day mediation with a retired judge of the Superior Court of Justice, Susan Lang. The defendant was represented by Kimberly Whaley at the mediation. The parties to the Guardianship Application agreed to terms of an interim settlement which were incorporated into Interim Minutes Settlement (the “Minutes”), signed on May 3, 2021.

[11] As part of the mediation process, Ms. Whaley sought estimates from the plaintiff to act as attorney for property for the defendant. Ms. Whaley and the plaintiff’s representative, Jandy John, reached an agreement whereby the plaintiff’s compensation would be based on an 0.85% initial set up fee and an annual fee of 0.5%, both based on the assets under administration for acting as the defendant’s attorney for property.

[12] As a term of the settlement, evidenced in the Minutes, the mediation was adjourned to June 7, 2021. The Minutes including a term that that the plaintiff would be appointed as attorney for property under a new continuing power of attorney.

[13] Paragraph 4(a) of the Minutes addresses the plaintiff’s appointment as the defendant’s attorney for property and provides that “Concentra shall be appointed in accordance with its fee schedule attached as Schedule “A” hereto.”

[14] Paragraph 4 of the Minutes provides that:

4. Subject to the new drafting solicitor’s advice and instruction received from Mr. Connacher regarding his overall estate plan, Mr. Connacher shall execute the New CPOAP effective immediately upon execution which contain the following: a) The New CPOAP [Continuing Power of Attorney for Property] shall appoint Concentra Trust (“Concentra”) to manage Mr. Connacher’s property and assist Mr. Connacher with the management of his property, in Concentra’s capacity as Mr. Connacher’s attorney for property. Concentra shall be appointed in accordance with the fee schedule attached as Schedule “A” hereto:

[15] The Schedule “A” fee schedule was not before the court, but counsel for the defendant did not dispute counsel for the plaintiff’s submission that there has only been one fee schedule produced.

[16] The mediation did not resume on June 7, 2021. Rather, on that date, the plaintiff and the defendant entered into a contract in relation to the plaintiff acting as the defendant’s attorney for property. The defendant signed a document entitled Power of Attorney Compensation Agreement (the “Compensation Agreement”) relating to the plaintiff's acting as the defendant's attorney pursuant to the new Continuing Power of Attorney for Property (“CPOAP”). The Compensation Agreement set out the manner in which the fees for services to be rendered by the plaintiff as attorney for property were to be calculated. Contemporaneously with signing the Compensation Agreement, the defendant signed the new CPOAP. The CPOAP incorporated, by reference, the Compensation Agreement. The CPOAP provides that the plaintiff shall be compensated in accordance with the CPOAP Compensation Agreement executed immediately prior to the execution of the CPOAP. Both documents were drafted by the defendant’s solicitor, Irit Gertzbein.

[17] By order dated June 9, 2021, Justice Koehnen granted an Order giving effect to the terms of the Minutes. All parties, except the PGT, consented to the terms of the order to resolve the Guardianship Application. The order directed the parties to provide the plaintiff with any and all documents with respect to the defendant’s assets and property. The order directed that within 45 days of receipt of the information, the defendants and the plaintiff were to provide a copy of the defendant’s management plan as well as his current statement setting out his personal and corporate holdings and personal and corporate account statements from December 8, 2020 to the date of the court order.

[18] Under the terms of the order of Koehnen J., the defendant could revoke the new CPOAP providing that the revocation was preceded by an assessment by Dr. Shulman of the defendant’s capacity to revoke and grant a continuing power of attorney for property, completed no more than 14 days prior to the date of the execution of the revocation.

[19] At the time of the execution of the CPOAP, the defendant had undergone four capacity assessments conducted by Dr. Richard Shulman, dated March 22, 2019; July 31, 2019; December 1, 2019; and January 17, 2021. The capacity assessments dated March 22, 2019; July 31, 2019; and January 17, 2021, concluded that the defendant was capable of managing his property. The capacity assessments dated March 22, 2019 and December 1, 2019 indicated that the defendant was capable of making and revoking new powers of attorney for property. The four capacity assessments are referenced in the preamble of the Minutes executed in May 2021.

[20] In accordance with the order of Koehnen J., the plaintiff and defendant developed a Management Plan, dated July 15, 2021, for the defendant’s assets.

[21] Dr. Shulman conducted a fifth capacity assessment on November 20, 2021, and found that the defendant had capacity to revoke and appoint a continuing power of attorney for property.

[22] The defendant does not dispute that the defendant had capacity, i.e. was competent, to grant the CPOAP in June 2021.

[23] The CPOAP stipulated that it was revocable provided that the execution of the revocation was preceded by an assessment of the defendant’s capacity.

[24] On November 23, 2021, the defendant’s solicitor, Irit Gertzbein, delivered written notice to the plaintiff revoking its appointment as Attorney for Property effective 3:00 PM that day.

[25] The plaintiff does not dispute that the CPOAP was validly revoked.

[26] On December 2, 2021, the plaintiff delivered its invoice to the defendant in the amount of $400,392.06.

V. Position of the parties

i. The Plaintiff

[27] The plaintiff is seeking payment of the amount owing for its services rendered as the attorney for property of the defendant, pursuant to the CPOAP. The CPOAP incorporated by reference a contract (the Compensation Agreement) between the plaintiff and the defendant governing the plaintiff’s fees. Upon the termination of the plaintiff’s appointment by the defendant, the plaintiff issued an invoice in the amount of $400,392.06, calculated in accordance with the Compensation Agreement.

[28] The plaintiff submits that the defendant is a well-educated and very accomplished businessperson, who was, at all material times, represented by experienced legal counsel. The defendant argues that the Compensation Agreement was negotiated at arm’s-length negotiations between represented parties and was related to the settlement of highly acrimonious and expensive litigation that was resolved at a mediation conducted by a retired Judge.

[29] The plaintiff submits that the terms of the Compensation Agreement are clear and there is no reason to disturb the contract. The plaintiff argues that the defendant does not dispute its calculations of the invoice. The plaintiff argues that the defendant has not provided competing evidence about the value of the assets under the defendant’s administration and, in fact, has used the same figure as the plaintiff, $34,665,978.34, as the value of the defendant’s assets for the purposes of calculating the amount which the plaintiff says should be paid to them.

ii. The Defendant

[30] The defendant admits that the plaintiff is entitled to compensation but argues that the amount can only be determined on a full evidentiary record.

[31] The defendant disputes the amount of time spent by the plaintiff and has questioned the time spent by the plaintiff and the work undertaken as attorney of property. The defendant submits that he is able to challenge the plaintiff’s compensation and relies on the compensation regime for an attorney of property under the SDA and the regulations thereunder. He submits that the work to complete the management plan was not onerous or time-consuming. He points to the order of Justice Koehnen indicating that all issues raised in the Guardianship Application had been settled. He argues there must be proportionality with the work undertaken, and further submits that the early revocation of the CPOAP would result in a windfall to the plaintiff. The defendant submits that the plaintiff’s invoice lacked any breakdown or description of the work undertaken. He argues that plaintiff must pass its account to determine what is fair and reasonable.

VI. The Issues

[32] The following issues are raised on this motion.

i. Is this an appropriate case for summary judgment? ii. Evidentiary issues raised on the motion iii. Onus on motion for summary judgment iv. Was the plaintiff a fiduciary? v. Does the defendant have a right to challenge the compensation claimed under the SDA? vi. Is the plaintiff entitled to judgment re: the initial set up fee? vii. Is the plaintiff entitled to judgement re: the administration fees? viii. Is the plaintiff required to pass its account?

VII. Disposition

[33] For the reasons below, the motion for summary judgment is granted for the initial set up fee in the amount of $294,660.82 and for the annual administration fee in the amount of $80,728.99, or as properly pro-rated. The plaintiff is entitled to prejudgment interest pursuant to the Courts of Justice Act.

VIII. Analysis

i. Is this an appropriate case for summary judgment?

[34] Pursuant to subrule 20.04(2)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the parties may agree to have all or part of the claim determined by summary judgment. The court is not bound by any agreement between the parties, and it is ultimately up to the court to decide whether it is appropriate to grant summary judgment: Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98, 154 O.R. (3d) 561, at para. 26. In this case, the defendant disagrees that this is an appropriate case for summary judgment.

[35] For the reasons stated below under this section, I am satisfied that this is an appropriate case for grant summary judgment.

[36] The court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence: subrule 20.04(2); Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 34.

[37] On a motion for summary judgment, the court must first decide whether there is a genuine issue requiring a trial based only on the evidence before the court, without using its fact-finding powers in subrule 20.04(2.1) of the Rules of Civil Procedure. If there appears to be a genuine issue requiring a trial, subrule 20.04(2.1) permits the motion judge to: (1) weigh the evidence, (2) evaluate the credibility of a deponent, or (3) draw any reasonable inference from the evidence unless it is in the "interest of justice" for these powers to be exercised only at trial: Hryniak at para. 66. Alternatively, subrule 20.04(2.2) permits the motion judge to direct a mini-trial for the purposes of exercising their discretion under subrule (2.1). Summary judgment is only appropriate where it leads to “a fair process and just adjudication”: Hryniak at para. 3; Mason v. Perras Mongenais, 2018 ONCA 978, at para. 44.

[38] The record before the court includes affidavits from Jandy John, the Director of Estates and Trusts of Concentra Trust. Ms. John was involved from the very beginning of the process to establish the fee and the completion of the contract between the parties. Ms. John was cross examined on her affidavit. In turn, the defendant, Mr. Connacher, has provided an affidavit in response to the motion and was also cross examined on his affidavit. The court assumes both sides have put forward the evidence that they would be advancing at a trial. I am satisfied that the summary judgment procedure permits me, on the paper record, to find the necessary facts and apply the relevant legal principles to resolve the dispute.

[39] This is a case to enforce a contract. The defendant has made several admissions. These admissions, together with the record before me, allow for a fair process and a just adjudication of the claims advanced by the plaintiff in the statement of claim and the defences raised by the defendant in the statement of defence. The defendant admits that the plaintiff was appointed as his attorney for property pursuant to the CPOAP. The defendant admits that the parties entered into the Compensation Agreement which sets out the manner in which the plaintiff’s compensation was to be determined for acting as his attorney of property. The defendant acknowledges that the plaintiff’s compensation was based on the formula in the Compensation Agreement incorporated in the CPOAP. The defendant admits in his statement of defence and in his factum that compensation is not an issue.

[40] In his statement of defence, the defendant used the same figure as the plaintiff for the fair market value of his assets, on which the plaintiff’s fees are based. The defendant does not challenge the formula used by the plaintiff in calculating the amounts set out in the plaintiff’s invoice. The defendant does not plead or suggest any defences exist to vitiate the contract for compensation.

[41] The court need not resort to using the enhanced fact-finding powers under r. 20.04(2.1) of the Rules of Civil Procedure, as, on the materials before me, there are no genuine issues of credibility raised by either side requiring a trial. The interest of justice would not be served by the parties proceeding to a full-blown trial as viva voce evidence is not required to assess credibility, and the materials filed permit the court to make the necessary findings of fact and apply the law.

ii. Evidentiary Issues on the motion

a) Defendant’s affidavit

[42] The principles governing the admissibility of evidence on a summary judgment motion are the same as those that apply at trial, save for the limited exception of permitting an affidavit made on information and belief found in rule 20.02(1) of the Rules of Civil Procedure: Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, at para. 15.

[43] The affidavit of the defendant, Mr. Connacher, contains hearsay with respect to contested facts. Rule 20.02(2) provides that a responding party "may not rest solely on the allegations or denial in the party's pleadings, but must set out, in affidavit material or other evidence, specific facts showing there is a genuine issue requiring at trial." [Emphasis added.]

[44] On behalf of the plaintiff, Ms. John deposes in her affidavit that the productions received as a result of the order of Justice Koehnen were voluminous and took several days to review and consider. In response, the defendant, Mr. Connacher, challenges this evidence. At paragraph 9 of his affidavit, the defendant deposes that the documents were compiled by his grandson, Ryan Connacher, and delivered to the plaintiff. He went on to state:

I was advised by Ryan Connacher that the documents delivered to the plaintiff clearly set out all my assets and property in a spreadsheet, together with the corresponding value of each of my assets and property.

[45] The statement from Ryan Connacher is hearsay. The defendant appears to be relying on the statement to contradict and challenge Ms. John’s evidence about the extent of work that the plaintiff carried out. The defendant deposes at paragraph 9 of his affidavit that Ms. John’s affidavit:

… infers that the task of ‘preparing an accounting’ of my assets was a difficult and time-consuming task. In actuality, the information and documentation provided to the plaintiff by Ryan Connacher in accordance with paragraph 1 of the Koehnen Order, would have made the task relatively straight-forward and should not have taken a period of “several days to review and consider.”

[46] Pursuant to r. 4.06(2) of the Rules of Civil Procedure, an affidavit must be confined to the statement of facts within the personal knowledge or other evidence that the person could give if testifying as a witness in court, subject to the rules providing otherwise. Subrule 39.01(4) of the Rules of Civil Procedure permits evidence by way of affidavit on a motion to be based on information and belief.

[47] Rule 20.02(2) of the Rules of Civil Procedure provides that in response to a motion for summary judgment, the responding party must set out in affidavit material or other evidence, “specific facts showing that there is a genuine issue requiring a trial”.

[48] Pursuant to subrule 20.02(1), the court may draw an adverse inference if a party does not provide the evidence of any person having personal knowledge of the contested facts. In Ferreira v. Cardenas, 2014 ONSC 7119, Justice Myers made the following observation at para. 12 of his decision, which I adopt: “[A] party is not entitled to hold evidence back hoping for a trial”. There is no affidavit by Ryan Connacher before the court as to what he delivered to the plaintiff. I am inclined make an adverse inference in the circumstances that the evidence from Ryan Connacher may not have been helpful to the defendant.

[49] As for the defendant’s reliance on the hearsay evidence with respect to contested facts, the Ontario Court of Appeal has cautioned that on a motion for summary judgment, the court must conduct a careful screening of the evidence to eliminate inadmissible evidence: Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 497, at para. 80. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial: Kawartha-Haliburton. In Drummond v. Cadillac Fairview Corporation Limited, 2019 ONCA 447, Brown J.A. stated as follows at para. 24:

If the evidence on information and belief in an affidavit goes to a fundamental contested aspect of the summary judgment motion, the motion judge should first determine whether the evidence would be admissible under the rules governing admissibility at trial. If the evidence meets those criteria, it is admissible on the motion. If the evidence does not meet the criteria for admissibility at trial, the onus should fall on the party proffering the evidence to justify some expansion of the rules governing admissibility in the context of the motion.

[50] The defendant has raised, as a defence, the extent of the work undertaken by the plaintiff, and, in the result, the evidence on this point goes to a fundamental aspect of the summary judgment motion. Whether a statement is hearsay depends on the purpose for which it is being proffered. Evidence is admissible if the trier of fact is legally permitted to consider it. Evidence that the law does not permit to be considered is inadmissible, even if it is relevant and material: Parliament et al v. Conley and Park, 2019 ONSC 2951, at para. 17. Hearsay evidence is presumptively inadmissible as a matter of law unless it falls under a traditional exception to the hearsay rule. Hearsay evidence is admissible if it meets the tests of necessity and reliability: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144; R. v. B. (K.G.), [1993] 1 S.C.R. 740.

[51] In this case, the statement attributable to Ryan Connacher is hearsay. The statement is not made under oath. The plaintiff has not had an opportunity to test the statement through cross examination. There is no explanation from the defendant about his grandson’s availability. As the statement is being proffered for the truth of its contents, it does not meet the criteria for admissibility at trial.

[52] In the result, the plaintiff’s evidence is uncontradicted as to the number of days that it took the plaintiff to review and consider the productions.

b) Defendant’s factum

[53] Paragraphs 1-5, as well as paragraph 7 of the defendant’s factum, is replete with information not before the court, and evidence that would otherwise either be hearsay or inadmissible without an affidavit from the treating health care practitioners referenced, in the absence of an agreement between the parties. The caution urged by the Court of Appeal regarding the need to screen out inadmissible evidence extends, in this case, to the references to information, medical opinions, and hearsay statements, among other things, not properly in evidence before the court, or at all, but nevertheless included in the defendant’s factum. For example:

i. Paragraph 1 contains inadmissible evidence regarding the plaintiff’s background and performance as CEO of Gordon Capital Corporation. ii. Paragraph 2 contains information not in evidence before the court, properly or at all. iii. Paragraphs 3 and 4 address information not in evidence before the court. iv. Paragraph 5 contains information not in evidence before the court.

[54] I conclude that these paragraphs in the factum that contain information not in evidence before the court cannot be considered on the motion for summary judgment. Having said that, the information contained in these paragraphs does not impact on the court’s determination of whether the Compensation Agreement included in the CPAOP should be enforced.

iii. Onus on motion for summary judgment

[55] The party seeking summary dismissal bears the evidentiary burden of showing that there is “no genuine issue of material fact requiring trial”: Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423, at para. 27; Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 111 O.A.C. 201 (C.A.), at para. 16. The bar on a summary judgment is high: Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 SCR 372, at para. 11. Pursuant to r. 20.01(1)) of the Rules of Civil Procedure, the plaintiff may support its motion with affidavit material or other evidence.

[56] Under r. 20.02 (2) of the Rules of Civil Procedure, in response, the responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit or other evidence, specific facts showing that there is a genuine issue for trial. The jurisprudence establishes that the responding party also has an evidentiary burden. The responding party must “lead trump or risk losing”: 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 (C.A.) at p. 557; Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) 225 (Gen. Div.); Irving Ungerman Ltd. v. Galanis (1994), 4 O.R. (3d) 545 (C.A.), at p. 552; High-tech Group Inc. v. Sears Canada Inc. (2001), 52 O.R. (3d) 97 (C.A.).

[57] Each party is required to “put its best foot forward” with respect to the existence or non-existence of material issues to be tried: Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 (Gen. Div.), at p. 434; Goudie v. Ottawa (City), 2003 SCC 14, [2003] 1 S.C.R. 141, at para. 32.

[58] On a motion for summary judgment, the court will assume that the record contains all the evidence which the parties will present if there is a trial: Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 164 D.L.R. (4th) 257 (Ont. C.A.); Broadgrain Commodities Inc. v. Continental Casualty Company, 2018 ONCA 438, at para. 7; Chernet v. RBC General Insurance Company, 2017 ONCA 337, at para. 12; Airex Inc. v. Ben Air System Inc., 2017 ONCA 390, at para. 17; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at paras. 27, 33-34, aff’d 2014 ONCA 878, leave to appeal to SCC refused, [2015] S.C.C.A. No. 97; Toronto-Dominion Bank v. Hylton, 2012 ONCA 614, at para. 5; Tim Ludwig Professional Corporation v. BDO Canada LLP, 2017 ONCA 292, at para. 54.

iv. Was the plaintiff a fiduciary?

[59] There are several preliminary issues raised by the defendant on the motion for summary judgment which must first be addressed. The defendant argues that the plaintiff was a fiduciary. The plaintiff submits that the relationship was always one of agency as the defendant was able to manage his property with assistance, which was the conclusion of Dr. Shulman.

[60] Section 32(1) of the SDA provides that a guardian of property must exercise its powers and carry out its duties diligently, with honesty and integrity and in good faith, for the benefit of the incapable person. The provision reads:

32 (1) A guardian of property is a fiduciary whose powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person’s benefit.

[61] There is no genuine issue requiring a trial with respect to whether the plaintiff was a fiduciary. The term “incapable” is defined in s. 1(1) (d) of the SDA as follows:

“incapable” means mentally incapable, and “incapacity” has a corresponding meaning.

[62] There is no evidence that the plaintiff was “incapable” during the period that the plaintiff served as the defendant’s attorney for property under the CPOAP. The CPOAP provided that the plaintiff and the defendant were to co-manage the defendant’s property as long as the defendant remained capable of managing his financial affairs. The defendant admits in his affidavit that “in every capacity assessment dealing with my ability to manage my property, at all material times, I maintained the requisite capacity.”

[63] On a motion for summary judgment there is no genuine issue requiring a trial where facts or issue in dispute is not genuine or is spurious or contrived. "Genuine" means "not spurious”: Irving at pp. 551-552; McBride v. Pilon, [2002] O.J. No. 2803 (Div. Ct.), at pp. 4-5. In Irving, Morden A.C.J.O defined “genuine” as follows:

It is safe to say that “genuine” means not spurious and, more specifically, that the words for trial assist in showing the meaning of the term. If the evidence on a motion for summary judgment satisfies the court that there is not a genuine issue of fact which requires a trial for its resolution, the requirements of the rule have been met. It must be clear that a trial is unnecessary.

[64] Apart from the lack of evidence supporting a finding that the defendant was incapable of managing his property during the relevant time frame, the statement of defence does not allege that the plaintiff was a fiduciary, allege any breach or wrongdoing by the plaintiff as a fiduciary duty, or allege that the plaintiff failed to comply with its fiduciary obligations. The defendant’s affidavit is equally silent on this point. A review of the defendant’s responding materials reveals they are equally silent on the issue. Whether the plaintiff was a fiduciary is not a “genuine issue requiring a trial”.

v. Does the defendant have a right to challenge the compensation being claimed?

[65] The defendant submits that compensation is not at issue; only the quantum that the plaintiff is entitled to receive is at issue. In his factum the defendant notes that despite the Compensation Agreement, compensation is payable to the plaintiff under s. 40(1) of the SDA. I disagree.

[66] Section 40(1) of the SDA governs compensation to a guardian of property or attorney under a continuing power of attorney where the instrument does not provide for compensation. Section 40(1) of the SDA states that the attorney may take an annual compensation from the property in accordance with the prescribed fee scale. Section 40(2) of the SDA provides that compensation may be taken monthly, quarterly, or annually. The attorney may take a higher compensation in certain instances, as outlined in s. 40(3), none of which apply in this case. Section 40(4) expressly states that the compensation provision under 40 do not apply where the continuing power of attorney addresses compensation.

[67] The compensation provisions are contained in ss. 40(1) to (3) of the SDA, which read:

40. (1) A guardian of property or attorney under a continuing power of attorney may take annual compensation from the property in accordance with the prescribed fee scale. (2) The compensation may be taken monthly, quarterly or annually. (3) The guardian or attorney may take an amount of compensation greater than the prescribed fee scale allows, (a) in the case where the Public Guardian and Trustee is not the guardian or attorney, if consent in writing is given by the Public Guardian and Trustee and by the incapable person’s guardian of the person or attorney under a power of attorney for personal care, if any; or (b) in the case where the Public Guardian and Trustee is the guardian or attorney, if the court approves.

[68] The prescribed fee scale is set out in Ontario Regulation 26/95 (the “Regulation”). Section 1 of the Regulation permits an attorney to charge fees against capital passed on the following percentage rates:

Fees charged against capital 3% on capital receipts 3% on capital disbursements Fees charged against revenue 3% on income receipts 3% on income disbursements Care and management fee 3/5 of 1% of the average annual value of the assets under administration

[69] Subsection 40(4) of the SDA indicates that the compensation scheme set out in sections 40(1) to (3) above are subject to any provisions respecting compensation in a continuing power of attorney. Subsection 40(4) of the SDA provides that:

(4) Subsections (1) to (3) are subject to provisions respecting compensation contained in a continuing power of attorney executed by the incapable person if, (a) the compensation is taken by the attorney under the power of attorney; or (b) the compensation is taken by a guardian of property who was the incapable person’s attorney under the power of attorney.

[70] In the result, the statute expressly ousts the statutory compensation mechanism where compensation is dealt with in the continuing power of attorney. That is to say, the statute permits the grantor to make provision for compensation to be given to an attorney of property. Where the continuing power of attorney addresses compensation, the statutory regime for determining the compensation of the attorney for property for services rendered does not apply. As noted by the authors of Macdonell, Sheard and Hull on Probate Practice, 5th ed. (Toronto: Thomson Reuters, 2016), at p. 558:

For attorneys and guardians of property, a regulation under the SDA prescribes the rate of 3 percent on capital and income receipts, 3 percent on capital and income disbursements, and 0.6 percent on the annual average value of the assets as a care and management fee, subject to an increase under subsection 40(3) of the Act or an adjustment by the court on the passing of accounts. This would also be subject to contrary provisions in the continuing power of attorney for property. [Emphasis added]

[71] In this case, the Compensation Agreement was incorporated by reference into the CPOAP. The Compensation Agreement set out a formula for determining the plaintiff’s compensation. The defendant has not provided the court with any authority to indicate that the court’s jurisdiction to resort to the SDA has not been ousted by virtue of the contract for compensation between the parties. In the result, I find that as the CPOAP expressly provides for compensation of the attorney of property, the court’s jurisdiction to resort to the statutory scheme for compensation under SDA is ousted, absent any other language in the continuing power of attorney to indicate otherwise. In this case, the contract incorporated into the CPOAP governs the plaintiff’s entitlement to compensation.

[72] The defendant also argues that s. 40(1) of the SDA was intended to provide a statutory basis for compensation to be paid to an attorney similar to the statutory entitlement of a trustee under s.61(1) of the Trustee Act, R.S.O. 1990, c. T.23. Neither party has relied upon s. 61(1) of the Trustee Act in its pleadings, however, the defendant raised it in his factum, and it was addressed during oral submissions.

[73] Under s. 61 of the Trustee Act, a judge has the power to fix the compensation for a trustee, guardian, or personal representative, in an amount that is fair and reasonable. Pursuant to subsection 61(3) of the Trustee Act, the court has the power, on passing the accounts of a trustee or guardian, to allow "a fair and reasonable allowance for care, pains and trouble, and time expended in or about the estate."

[74] The defendant does not refer to subs. 23(2) of the Trustee Act, a provision similar to s. 40(4) of the SDA. Section 23(2) of the Trustee Act governs the court’s power to fix the compensation of a trustee. Just like s. 40(4) of the SDA, similarly s. 23(2) of the Trustee Act displaces the court’s jurisdiction to fix the amount of compensation where, in the case of the Trustee Act, the instrument creating the trust provides for compensation or the compensation has otherwise been fixed. Section 23(2) reads:

(2) Where the compensation payable to a trustee has not been fixed by the instrument creating the trust or otherwise, the judge upon the passing of the accounts of the trustee has power to fix the amount of compensation payable to the trustee and the trustee is thereupon entitled to retain out of any money held the amount so determined.

[75] The plaintiff relies on Re Taylor, [1967] 2 O.R. 557 (Surr. Ct.), and Byrne Estate (Re). In Re Taylor, Weaver Surr.Ct.J. concluded at para. 16 that the words “or otherwise” in s. 23(2) of the Trustee Act meant "by the agreement of cestuis que trustent or beneficiaries claiming under the instrument creating the trust"—that is to say, an agreement for compensation between the fiduciary and the beneficiaries of the trust. The jurisprudence is also well established that the Court will not fix the compensation under the s. 23(2) of the Trustee Act where compensation has been fixed in the instrument: Williams v. Roy et al. (1885), 9 O.R. 534 (Ont. H.C.), at pp. 538-9; Byrne Estate. In Byrne Estate, Lalonde J. commented on the binding nature of compensation fixed in a will on the court and noted that it imposes an absolute constraint regardless of the responsibilities discharged, duties performed or whether the compensation appears to be unreasonably high or low. He stated:

[85] It is well-established that the combined effect of the sections of the Trustee Act, referred to above, is to remove the jurisdiction of the Court to fix an Estate Trustee’s compensation where the testator has him or herself provided for such compensation in the Will itself. Such a provision is binding upon both the Estate Trustee and the Court.

[86] A clause in a Will, setting out the amount of an Estate Trustee’s compensation, imposes an absolute constraint on the amount of compensation, which an Estate Trustee may receive, regardless of the success of the administration, the responsibilities discharged, or the duties performed. In other words, such a provision is binding upon the Court and the Court is not to award any more or less than that specifically provided for by the testator. The constraint imposed upon the Court, in fixing an Estate Trustee’s compensation, applies whether the compensation appears to be unreasonably high or unreasonably low. The Court is not to consider the reasonableness of the amount of compensation provided for by the testator. [Emphasis]

[76] In my view, these comments apply, by analogy, in equal measure to compensation fixed in a continuing power of attorney, by virtue of subsection 40(4) of the SDA. In the result, as neither party has relied upon the provisions of the Trustee Act and given the express mechanism available in the SDA and the Trustee Act to displace compensation under the statute, and by extension, the jurisprudence applying the statute, in the circumstances, for the reasons given above, in my view the statutory compensation regime available under the statute is not available to the parties.

[77] The defendant also relies on the following cases in support of his position that the defendant is entitled to challenge the plaintiff’s compensation: Sworik (Guardian of) v. Ware, 2005 CarswellOnt 3549 (S.C.J); Cuthbert v. TD Canada Trust, 2010 ONSC 830; Aber Estate, Re, 2013 ONSC 6363; and Laing Estate v. Hines (1998), 41 O.R. (3d) 571 (C.A.). Each case is distinguishable, on its facts, from the one before me, as they all involve applications related to the passing of accounts. None involve a situation where compensation was provided for in the instrument. I find that these cases have no application to the plaintiff’s case to enforce the contract for compensation between the parties.

[78] The facts in Nystrom Estate v. Nystrom, 2007 CarswellOnt 1064 (S.C.J.), are similar to the facts before me. In Nystrom, D.C. Shaw J. declined to interfere with the compensation provision contained in the continuing power of attorney. In that case the continuing power of attorney for property contained a provision indicating that the grantor, the applicant’s mother, did not authorize him to take compensation for acting as her attorney. The document contained the following clause, quoted at para. 10 of the decision:

Compensation of Attorney

9. I do not authorize my attorney to take compensation from my property under the Substitute Decisions Act, 1992, the Regulation passed under that Act, or otherwise.

[79] Justice Shaw indicated that he was unable to accept that he had discretion to ignore the express provision: at para. 12.

[80] Absent any evidence to the contrary, the plaintiff is entitled to rely upon the presumption in section 2(1) of the SDA that the defendant was capable of entering into a contract. Although the defendant raised the principle of contra proferentem in his defence, the argument was not advanced on the motion. I agree with the plaintiff that the terms of the contract are clear and just as Justice Shaw was, I am unable to ignore the express agreement between the parties with respect to compensation.

vi. Is the plaintiff entitled to judgment for the initial set up fee?

[81] On the evidence before me, there is no genuine issue requiring a trial with respect to the plaintiff’s entitlement to the initial set up fee for the reasons below.

[82] The CPOAP signed by the defendant appointing the plaintiff as the defendant’s attorney for property expressly incorporated, by reference, the Compensation Agreement.

[83] The Compensation Agreement provides, among other things, that:

Concentra shall be paid an initial set up fee of .85% of the fair market value of the assets under administration, to a minimum of $100,000 plus all necessarily incurred expenses and legal fees for the preparation or review of any associated agreements or documents;

Concentra shall be paid an annual administration fee of .5% of the fair market value of the assets under administration subject to a minimum annual fee of $100,000.

Concentra shall be paid additional fees for services not covered by the annual administration fee, including litigation on behalf of the grantor, termination of the appointment, preparation of accounts in court passing form or any special services or exceptional responsibilities undertaken by Concentra Trust in connection with the management or sale of real estate, business interests, foreign assets or other unusual holdings, to be calculated based on Concentra’s scale of fees in effect at the time;

Concentra shall be reimbursed for all legal and accounting fees, and other out-of-pocket expenses; and,

All fees charged by Concentra are subject to the applicable federal and provincial goods and services tax and harmonized sales tax.

[84] The CPOAP provides, among other things, that:

Concentra is appointed to act as Connacher’s Attorney for Property; and,

Concentra shall be paid compensation pursuant to the Continuing Power of Attorney Compensation Agreement (“CPOAP Compensation Agreement”) executed June 7, 2021 and before the execution of the CPOAP.

[85] The defendant had legal assistance and advice in drafting the CPOAP and Compensation Agreement. There is no dispute between the parties that the defendant was competent to sign the Compensation Agreement and the CPOAP in June 2021. The defendant does not dispute that the Compensation Agreement is a valid contract. The defendant does not dispute that the CPOAP is valid or that it conforms with the statutory requirements of the SDA.

[86] At paragraph 11 of the statement of defence, the defendant pleads “that it is an implied term of the Compensation Agreement that in the event that the CPOAP is lawfully revoked, the amount due and owing pursuant to this provision be limited to 46.30% of the annual administration fee, as calculated.”

[87] The Compensation Agreement provides that the initial setup fee would be calculated based on 0.85% of the fair market value of the assets under administration. This term of the agreement is not otherwise qualified by any requirement on the part of the plaintiff to adjust the fee based on actual work undertaken, nor was there a requirement under the Compensation Agreement for an accounting of the work carried out before the defendant would be liable to pay. The Compensation Agreement is a contract and the principles of contractual interpretation apply. The court will not construct agreements for parties: John D. McCamus, The Law of Contracts (Toronto: Irwin Law, 2020), at pp. 729-730. In ter Neuzen v. Korn, [1995] 3 S.C.R. 674, at para. 94, the Supreme Court of Canada cited G. Ford Homes Ltd. v. Draft Masonry (York) Co. (1983), 43 O.R. (2d) 401 (C.A.), at para. 9 with approval, to state that it is a “time-honoured [caution]” that “…the courts will be cautious in their approach to implying terms to contracts. Certainly, a court will not rewrite a contract for the parties. As well, no term will be implied that is inconsistent with the contract.”

[88] The defendant disputes the amount of time spent by the plaintiff. He points to the June 9, 2021 order of Koehnen J. and argues that all issues had been settled. The Compensation Agreement and CPOAP were signed by the defendant two days before Justice Koehnen’s consent order was signed. The CPOAP indicates that it comes into effect on the date it is signed and witnessed. The parties do not dispute that the CPOAP came into effect on June 7, 2021. The consent order directed the timing of the delivery of the documents to the plaintiff and the completion of the Management Plan.

[89] The Compensation Agreement deals with a number of fees; the two which are in dispute are the initial set up fee and the annual administration fee. The agreement stipulated that the initial set up fee would be “calculated on the fair market value of the assets under administration” multiplied by 0.85%, and subject to a minimum of $100,000, plus expenses. The Compensation Agreement further provides that “[t]he set-up fee is payable concurrent with the activation on my Power of Attorney.”

[90] The defendant admits in its factum that compensation is not at issue. The defendant submits that it is the quantum that is in issue and argues that the amount of compensation to which the plaintiff is entitled can only be determined on a full evidentiary record. I disagree. The Compensation Agreement set out the fees for services to be rendered by the plaintiff attorney for property. The defendant’s factum states:

The Interim Minutes included an agreement that the defendant would have a new CPOAP prepared and that he would appoint the plaintiff to manage his property in its capacity as his Attorney for property. The provision also provided that the plaintiff was to be compensated in accordance with the Fee Schedule annexed to the Interim Minutes. The fees contained therein mirrored the fees negotiated by WEL Partners on May 3, 2021. [Emphasis added.]

[91] During oral submissions, counsel for the defendant indicated that the percentages negotiated by the defendant’s former solicitor were utilized properly for the calculation of the one-time set up fees and the annual administration fees.

[92] The defendant admits that pursuant to the CPOAP, the plaintiff was appointed to act as his attorney for property. He admits that the plaintiff would manage his property in accordance with the Management Plan dated July 15, 2021. There is no dispute that the plaintiff prepared the Management Plan.

[93] The defendant admits at paragraph 2 of his statement of defence that the plaintiff’s entitlement to compensation was governed by the Compensation Agreement. The pleading states:

The defendant further admits that while acting in its capacity as his Attorney for property, the plaintiff’s entitlement to compensation was to be governed by the CPOAP Compensation Agreement executed on June 7, 2021 (“Compensation Agreement”).

[94] The defendant advances three defences with respect to the initial set up fee. First, the defendant states that the work contemplated by the provision remained either outstanding or incomplete at the time the CPOAP was revoked. Second, the defendant denies that any money is due and owing under the Compensation Agreement. Third, the defendant pleads, in the alternative, that “any compensation in excess of the minimum fee payable under this section of Compensation Agreement (sic) is excessive, unwarranted and would constitute a ‘windfall’ to the plaintiff, notwithstanding the fact that the CPOAP was lawfully revoked in accordance with the express terms and conditions of same.” The term “minimum fee payable” is not described in the statement of defence or the defendant’s affidavit but is set out in the statement of claim and the Compensation Agreement as “$100,000.00 plus all necessarily incurred expenses and legal fees”.

[95] The defendant submits that there is a period of time during which the plaintiff was not under a contract with the defendant, and points to the testimony of Ms. John during her cross examination, wherein she indicated that the plaintiff commenced work on May 3, 2021, despite the fact that the contract was not in place. Ms. John testified that there is a lot of pre work that is carried out before the document is signed.

[96] The defendant also argues that the plaintiff has put forward no documentation to indicate what start up work was carried out and when it was done. The defendant argues that in the absence of any such evidence, it is possible that the work was completed by the time the CPOAP and compensation agreement were in place. The plaintiff’s entitlement to compensation was not tied to work performed or completed but rather was set according to a formula tied to the fair market value of the assets under administration. The defendant’s statements are speculative and read additional provisions into the Compensation Agreement. Any start up work is not relevant to the plaintiff’s entitlement to be compensated under the terms of the Compensation Agreement, and by Ms. John’s own admission, the plaintiff conceded it was not entitled to compensation before the agreement was in place. There is no evidence from the defendant that “a significant amount” of the set-up work was completed before the documents were signed.

[97] On the evidence, the Consent Order of Justice Koehnen, dated June 9, 2021, was consented to two days after the defendant signed the Compensation Agreement and CPOAP. That order directed that: “the Parties shall provide Concentra Trust (“Concentra”) with any, and all documents they hold respecting Mr. Connacher’s assets and property wheresoever and howsoever situated forthwith and no later than 5 days from the date of the within issuing Order.” The defendant admitted in his affidavit that “the totality of these documents is substantial, and the plaintiff would need to review same”, but claimed that the majority of the materials had little bearing on the plaintiff’s role as his attorney of property. He claimed that the majority of the issues raised in the Guardianship Application had been settled. This evidence is at odds with his evidence elsewhere in his affidavit, where he acknowledges that “[t]he decision to enter into the CPOAP was part of a negotiated settlement of the Guardianship Application on the second day of a two-day mediation”.

[98] In addition to the volume of documents that had to be delivered to the plaintiff by virtue of the Consent Order of Justice Koehnen, which the defendant admitted was “substantial”, the Consent Order also required the plaintiff to prepare a Management Plan within 45 days of the date of the order. Paragraph 3 of the order stated that:

THIS COURT ORDERS that within 45 days of receipt of the information contemplated by paragraph 1 herein, Concentra and Mr. Connacher shall provide a copy of Mr. Connacher’s Management Plan (the “Management Plan”) to the Parties as well as a current statement setting out Mr. Connacher’s personal and corporate holdings and Mr. Connacher’s personal and corporate account statements for the period from December 8, 2020, until the date of this Court Order.

[99] As counsel for the defendant pointed out during oral submissions, Ms. John conceded on cross examination that the plaintiff was not entitled to payment before the contract was in place.

[100] The defendant challenges the work carried out by the plaintiff to complete the Management Plan. He argues that the work was neither onerous nor time-consuming. The defendant admits in his affidavit that the material was voluminous. The plaintiff’s evidence as to the work performed is uncontradicted. The plaintiff completed a detailed Management Plan in accordance with the consent order. Ms. John’s evidence that she considered the suggestions of the defendant’s descendants for inclusions in the Management Plan and presented the Management Plan to the defendant’s descendants is uncontradicted. The defendant points to the prohibition in Koehnen J.’s order on his descendants communicating with him. The order said nothing about the plaintiff communicating with his descendants as the attorney of property.

[101] The defendant further argues that during the period of time that the plaintiff was attorney of property, the plaintiff neither bought or sold any of his assets and property, was not required to engage the services of investment advisors, was not required to make decisions regarding the investment and reinvestment of his assets and did not have to instruct investment advisors on his behalf. The defendant has not pointed to any term of the Compensation Agreement which ties the plaintiff’s entitlement to compensation to the nature and extent of the work to be performed.

[102] The defendant also argues that a “substantial” amount of the documents delivered to the plaintiff had no bearing on the plaintiff’s role as attorney of property. The defendant argues that the plaintiff has put forward no documentation to indicate what start up work was carried out and when it was done. The defendant has not set forth any evidence as to what documents were delivered to the plaintiff nor has the defendant identified the “substantial” number of documents that were not germane to the plaintiff’s role under the CPOAP.

[103] The defendant also takes issue with the fact that the setup fee was payable concurrent with the activation of the power of attorney. The defendant argues that it would have been possible to sign the document, lawfully revoke it, and still owe the setup fee when zero work was completed at that stage. That is not the set of facts before the court. Work was in fact done. The defendant admits in his statement of defence and factum that compensation is not in issue, merely quantum.

[104] The Compensation Agreement referred to in the statement of claim, and admitted in the statement of defence, contemplates that the plaintiff would be remunerated based on two factors: i) a setup fee of 0.85% based on the market value of the property under management, and ii) an annual administration fee based on 0.5% of the fair market value of the property under administration. At paragraph 8 of his statement of defence, the defendant admits the initial set up fee and the percentage contemplated by the Compensation Agreement. He pleads that: “the Compensation Agreement provides for the payment of an ‘initial Set up Fee’ to be calculated on the fair market value of the assets under administration, equal to 0.85% of the market value.” The defendant goes on to plead that “the work contemplated by this provision remained either outstanding, or incomplete, as at the date the CPOAP was lawfully revoked.” The defendant does not set forth in his affidavit any evidence to substantiate this allegation in the statement of defence. There is only bald assertion that work remained incomplete or outstanding in his affidavit. As stated by the Supreme Court in Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423, at para. 31: “[A] self-serving affidavit is not sufficient in itself to create a triable issue in the absence of detailed facts and supporting evidence”. In this case, no affidavit or other evidence has been filed by the defendant to support his argument that work remained outstanding or incomplete as of the date the CPOAP was revoked.

[105] Counsel for the defendant argues that the valuation was completed on June 30, 2021, and until the valuation was done, it would have been impossible to determine the fees. The evidence before the court is that as of June 30, 2021, the fair market value of the defendant’s assets under administration was $34,665,978.34. The evidence is not challenged or contradicted by the defendant. The defendant pleads at paragraph 12 of his statement of defence that:

… if any money is due and owing under the provision of the Compensation Agreement, which is not admitted but denied, the total compensation payable ought to be limited to the sum o f $80,254.10, being the annual administration fee as calculated over the 5.556 months during which the plaintiff acted in the capacity of the defendant’s attorney for property under the CPOAP.

[106] In the result, the defendant used the same valuation in its statement of defence in calculating the administration fees which it alleges is owed to the plaintiff, that is: 0.5% x $34,665,978.34 x 5.556 /12 = $80,254.10.

[107] The defendant argues that the invoice dated December 2, 2021 was provided to the defendant without any documentation. The defendant submits that the issue cannot be determined in the absence of documentary discovery or oral discovery. I disagree. As the plaintiff indicates, the terms of the contract are clear. If this were a passing of accounts, as the defendant has also suggested is available to him, the proceeding would be by way of an application where no oral or documentary discovery rights are available. Based on the pleadings before me, and the agreement between the parties with respect to the plaintiff’s entitlement to compensation for acting as the defendant’s attorney of property under the CPOAP, and the admissions made by the defendant, there is no need for discovery in this matter; it would be at odds with the principles in Hryniak.

[108] I also note that a request for records was not made by the defendant, and the defendant has not pleaded that the plaintiff has failed to provide records or is in breach of the requirement under the SDA to keep records. In my view, further documentation would not change the terms of the CPOAP and Compensation Agreement.

vii. Is the plaintiff entitled to judgment for the administration fee?

[109] The defendant submits that the total compensation payable to Concentra should be limited to $80,254.10, which is the annual administration fee calculated over the period of 5.556 months.

[110] At paragraph 10 of his statement of defence, the defendant states:

The defendant states that the Compensation Agreement provides for the payment of an ‘Annual Administration fee’ to be calculated on the fair market value of the assets under administration, equal to 0.50% of the market value. Although the annual administration fee is to be calculated annually, the compensation Agreement expressly states that this administration fee will be charged in such portions and at such frequency, whether monthly or otherwise, as the plaintiff determines in its absolute discretion.

[111] The defendant appears to advance four defences with respect to the administration fee,

i) the defendant denied any money was due and owing; ii) in the alternative, if any money was due and owing, the defendant pleads the amount owing is limited to 46.30% of the annual administration fee; iii) the defendant pleads that any amount due and owing for the annual administration fee amounts to $80,254.10; iv) the defendant relies upon the principle of contra proferentem (this was not raised or argued on the motion)

[112] The plaintiff was appointed on June 7, 2021 and was terminated on November 23, 2021. At paragraph 12 of the statement of defence, the defendant calculated the annual administration fee “over the 5.556 months during which the plaintiff acted as his attorney for property under the CPOAP”. The defendant’s calculation is based on 5.556 months as opposed to the six months used by the plaintiff. Aside from the time frame, both parties have employed the same percentage and figure for the fair market value of the defendant’s assets.

[113] The administration fee is therefore enforceable. There is a slight difference in calculation between the plaintiff’s calculation, and that of the defendant, but this is not a genuine issue requiring a trial. If the parties are not able to resolve this minor discrepancy, a conference call may be arranged to settle the amount.

viii. Is the plaintiff required to pass accounts?

[114] In his factum the defendant indicates that he is entitled to have the passing of the plaintiff’s account proceed to trial to determine whether the fees claimed are fair and reasonable. During oral submissions, counsel for the defendant referred to s. 42 of the SDA, with respect to the court’s power to grant the relief sought in the plaintiff’s factum. In his factum the defendant indicated:

It is respectfully submitted that despite the terms of the CPOAP compensation agreement, the defendant is entitled to have the passing of the plaintiff’s accounts proceed to trial for the determination of whether the fees being claimed are fair and reasonable.” [Emphasis added]

[115] During oral submissions, the defendant argued that a passing of accounts is contemplated by the Compensation Agreement, and points to the following language: “Concentra Trust shall not be required to pass accounts prior to receiving payment for any compensation to which (sic) may be entitled.” The contract between the parties expressly provides that the plaintiff is not required to pass accounts prior to receiving payment.

[116] There is no requirement to pass accounts on a regular basis in the SDA. The duty is simply to keep accounts of all transactions: s. 30(6). Section 42 of the SDA provides that the court may require the passing of accounts by order.

[117] A passing of accounts is initiated by an application, which is an originating process. There is no application before me to require the plaintiff to pass its accounts. The statement of defence does not raise, as defence to the payment of the invoice, the requirement that the plaintiff pass its account for the court to determine what is fair and reasonable. If I am wrong, on the evidence before me, the defendant has admitted the fee structure in the Compensation Agreement governed the plaintiff’s entitlement to compensation. No defences having been raised challenging the validity or enforceability of the agreement, the parties are bound by the agreement.

IX. Conclusion

[118] I am satisfied that there is no genuine issue requiring a trial with respect to the plaintiff’s claim for compensation under the Compensation Agreement, and no genuine issue requiring a trial with respect to the defences advanced by the defendant to the plaintiff’s claim. The plaintiff’s action for remuneration is based on the compensation agreed to by the parties, governed by the CPOAP and the Compensation Agreement. The CPOAP incorporates the contract, that is, the Compensation Agreement, between the parties. The defendant does not dispute the calculations performed by the plaintiff which form the basis for the amounts claimed in the invoice. The defendant has not disputed the value of the asset under administration or provided any competing evidence about the value of the assets under the plaintiff’s administration.

[119] Absent any defences that would otherwise vitiate the contract, on the evidence, the contract is binding on the parties. I find that there is no genuine issue requiring a trial with respect to the plaintiff’s entitlement to compensation under the CPOAP in accordance with the Compensation Agreement entered into by the parties.

[120] The matter before the court is essentially an action to enforce the Compensation Agreement, that is the compensation included in the CPOAP. There is no application to pass accounts before me. There is therefore no genuine issue requiring a trial with respect to whether the plaintiff’s accounts must proceed to trial for the determination of whether the fees being claimed are fair and reasonable.

[121] If the parties require the court’s assistance in settling the amount for the pro-rated annual administration fee on the fair market value of the defendant’s assets, an appointment may be scheduled through my assistant.

[122] The plaintiff is entitled to prejudgment and post-judgment interest in accordance with sections 127, 128, and 129 of the Courts of Justice Act.

X. Costs

[123] I would encourage the parties to resolve the issue of costs. If the parties are unable to do so, the plaintiff may submit its costs submissions, limited to three pages, within 15 days of the date of this decision. The defendant may submit its costs submissions within 15 days thereafter.

Justice A.P. Ramsay

Date: October 19, 2023