Court File and Parties
COURT FILE NO.: CV- 18-77001 DATE: 2024/06/03 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: SHEILA MARIA DAWSON AND RACHEL HARRIS (Applicants) AND THE ESTATE OF JOSEPHINE DAWSON, DECEASED, MICHAEL DAWSON, BY HIS LITIGATION GUARDIAN, THE PUBLIC GUARDIAN AND TRUSTEE, AND ANTHONY VIKRAM DAWSON (Respondents)
BEFORE: Madam Justice S. Corthorn
COUNSEL: David Scharf, for the applicants Alyssa Tomkins, for the respondent estate Kathleen Lindsey (by videoconference), for the respondent, Michael Dawson Gary Boyd, for the respondent, Anthony Vikram Dawson
HEARD: May 28, 2024 (Hybrid hearing)
Endorsement
Introduction
[1] The applicants are the daughter (Sheila Dawson) and granddaughter (Rachel Harris), of the respondent, Michael Dawson, and the Late Josephine Dawson. The respondent, Anthony Vikram Dawson, is Sheila’s brother and the son of Michael Dawson and the Late Josephine Dawson. [^1]
[2] At the heart of the dispute between the parties are the decisions made by Josephine and Michael, in 2017, regarding their respective wills and powers of attorney. The applicants allege that the documents executed by Michael and Josephine in 2017 (“the 2017 documents”) are the result of Anthony’s undue influence over both his parents.
[3] Pursuant to the 2017 powers of attorney, Anthony took over from Sheila as both parents’ attorney for property. In that role, Anthony arranged the sale of the parents’ home and for the parents to move to a supported living environment.
[4] In early 2023, Josephine passed away. In her 2017 will, Josephine named Anthony as the sole estate trustee.
[5] Michael remains alive and is now 101 years old. Michael was the beneficiary of Josephine’s estate. In his 2017 will, Michael names Anthony as the sole beneficiary of Michael’s estate in the event Michael is predeceased by Josephine. Michael’s estate is estimated to be valued at a high six-figure to low-seven figure amount.
[6] In their amended notice of application, the applicants request an order setting aside the 2017 documents; removing Anthony as Michael’s attorney for property and for personal care; and appointing the applicants in those roles. The applicants also request relief related to Anthony’s management of the parents’ finances in his capacity as attorney for property.
[7] The applicants are before the court seeking interim relief, including an order (a) granting them leave to bring an application for an order requiring Anthony to pass his accounts as attorney for property; (b) requiring Anthony to produce bank records for the accounts held by one or both of the parents; and (c) permitting each of the applicants to visit Michael. Regarding the latter form of relief, the applicants have not seen Michael for years.
[8] Anthony also seeks interim relief. He asks the court to strike an exhibit, and paragraphs in which reference to that exhibit is made, from Sheila’s affidavit sworn on October 21, 2023 (“Sheila’s affidavit”).
[9] Anthony also submitted that the court should hear the application (i.e., on May 28, 2024).
[10] Through discussion with counsel, and with the parties having an opportunity to discuss the interim and procedural issues throughout the full day during which these matters were addressed, the parties were able to resolve the interim issues.
[11] Before turning to the resolution of those issues, I will first address the manner in which Josephine’s estate is named in the title of proceeding. The court raised this issue at the outset of the hearing on May 28, 2024.
The Claims Against the Estate of Josephine Dawson
[12] Josephine was alive when the application was commenced in 2018. After Josephine’s death in early 2023, the applicants obtained an order to continue the application against “The estate of Josephine Dawson, deceased”. That order addresses the transmission of interest from Josephine, personally, to her estate. That order does not, however, address the requirements of Rule 9 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[13] Pursuant to r. 9.01(1), “A proceeding may be brought by or against an executor, administrator or trustee as representing an estate or trust and its beneficiaries without joining the beneficiaries as parties.” An exception to that rule is stipulated in r. 9.01(2). Specifically, r. 9.01(1) does not apply to “a proceeding, (a) to establish or contest the validity of a will [or] (d) against an executor, administrator or trustee for fraud or misconduct”.
[14] There is no suggestion before the court that the applicants failed to include all of the beneficiaries under Josephine’s and Michael’s respective 2017 wills as respondents in this proceeding.
[15] The parties failed, however, to address the fact that (a) the title of proceeding does not identify anyone in a representative capacity for Josephine’s estate; and (b) Anthony is both the estate trustee of Josephine’s estate and a respondent personally.
[16] The failure to identify anyone in a representative capacity for Josephine’s estate does not result in the proceeding being a nullity: r. 9.03(2). That failure does, however, give rise to the consequences set out in r. 9.03(6): “No further step in a proceeding referred to in subrule (2), (3), (4) or (5) shall be taken until it is properly constituted and, unless it is properly constituted within a reasonable time, the court may dismiss the proceeding or make such other order as is just.”
[17] Anthony’s counsel informed the court that Anthony does not yet have a certificate of appointment as the executor/estate trustee for Josephine’s estate. Sheila filed a notice of objection to Anthony’s appointment in that capacity.
[18] Despite the lack of formal appointment of Anthony as the executor/estate trustee of Josephine’s estate, the parties consent to an order amending the title of proceeding such the respondent estate is described as follows: “Anthony Vikram Dawson, in his capacity as the Estate Trustee for the Estate of Josephine Dawson, Deceased”.
[19] That amendment eliminates the requirement for the court to order a stay of the proceeding, an order that would otherwise have been mandatory pursuant to r. 9.03(6).
[20] The amendment to the title of proceeding does not, however, address the conflict which Anthony has because he is named as a respondent personally and in a representative capacity – in a proceeding in which his personal conduct relating to Josephine’s decisions about her estate is in issue.
[21] In my view, the parties are entitled to rely on r. 9.02(1), by analogy, in support of a request for an order appointing a litigation administrator to represent Josephine’s estate for the purpose of this proceeding. If the parties are unable to agree upon a litigation administrator to replace Anthony in his capacity as estate trustee, then one of the parties must bring a motion for an order for the appointment of a litigation administrator.
[22] It will not be possible for the application to be heard unless and until a litigation administrator is appointed to represent the estate for the purpose of the proceeding. If a motion is required, the parties have the option of following the timetable set for the motion for an order for the passing of accounts (see below), or they may proceed with the motion for the appointment of a litigation administrator on an earlier (but not later) timetable.
[23] To be clear, if the motion for the appointment of a litigation administrator is contested, that motion shall be heard in advance of date on which the motion to pass accounts and the application challenging the 2017 documents are heard together. If an appeal is taken from the outcome of the motion for the appointment of a litigation administrator for Josephine’s estate, the appeal must also be determined before the application is heard.
[24] The parties did not provide the court with a satisfactory explanation as to why the amendment to the title of proceeding and the conflict for Anthony were not addressed at an earlier stage of the proceeding. The court understands that delays were encountered because of the conduct of the applicants’ previous counsel. That conduct does not, however, fully explain the failure of the parties to address the issues related to Josephine’s estate at an earlier stage of the proceeding.
[25] The parties are encouraged to resolve, through negotiation, the appointment of a litigation administrator for Josephine’s estate. It is six years since the application was commenced. If a motion is required for an order appointing a litigation administrator, the motion will, in all likelihood, contribute to further delay in the proceeding. Such a motion would also serve to increase the costs of the proceeding.
The Applicants’ Request to Visit Michael Dawson
[26] Michael is 101 years old and lives in a long-term care facility. The applicants have not seen Michael for years.
[27] The Public Guardian and Trustee (“PGT”) is Michael’s litigation guardian. In that capacity, the PGT retained an agent in Ottawa to meet with Michael. The agent attempted to ascertain Michael’s wishes in response to the applicants’ request for a visit. The agent visited with Michael on three occasions over a three-week span in April 2024. The agent attempted to have Michael communicate his wishes verbally and/or in writing. Due to a lack of coherence to Michael’s responses, using either method of communication, the agent was unable to ascertain Michael’s wishes.
[28] As a result, in response to the applicants’ motion for an order permitting them to meet with Michael, the PGT, in its capacity as Michael’s litigation guardian, takes no position.
[29] It is Anthony who, outside the scope of this proceeding, has been refusing to permit the applicants to visit with Michael. In the context of this proceeding, Anthony opposes the applicants’ request to visit with Michael. In support of his position, Anthony relies on a letter dated September 2018, sent by Josephine and Michael’s lawyer, at that time, to the applicants. In the letter, the lawyer informs the applicants that Josephine and Michael do not wish to see the applicants.
[30] Anthony acknowledges that there is no evidence before the court as to any more recent expression by Michael that he does not wish to see the applicants.
[31] In 2018, Michael was found to be incapable of managing his property and in all spheres related to personal care. There is no evidence before the court as to Michael’s condition from 2018 to the present.
[32] The court urged to consider the applicants’ request from a humane, rather than a legal, perspective. The court asked the parties to consider agreeing to the applicants visiting Michael with a nurse or another individual from the long-term care facility present. That individual would be in a position to assess whether a visit, at the scheduled day and time, would in any way be detrimental to Michael’s condition. Assuming the visit could take place, that individual would also be in a position to assess whether there are any changes in Michael’s condition which warrant terminating the visit prior to the end of the scheduled duration of the visit.
[33] The parties consulted with and obtained the agreement of a representative of the long-term care facility to have the visits proceed in that manner. Anthony now consents to the visits. Each of the applicants shall be entitled to visit Michael for five to ten minutes, under the supervision of a nurse or the Executive Director of the long-term care facility.
[34] The parties were directed to begin arranging the visits, pending this endorsement being released and an order being issued and entered. Given Michael’s advanced age, the visits must take place as soon as practicably possible (“forthwith” is the phrase used in the order made at the conclusion of this endorsement).
Leave to Pursue an Order Requiring Anthony to Pass His Accounts
[35] In their amended notice of application, the applicants request an order granting them leave to bring an application for an order requiring Anthony to pass his accounts in his capacity as attorney for property for each of Josephine (2018 to 2023) and Michael (2018 to present). In support of that request, the applicants rely on s. 42 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”).
[36] Section 42(4) lists the persons who may apply, under s. 42(1), for an “order that all or a specified part of the accounts of an attorney or guardian of property be passed.” That list includes five specific categories of persons and the generic category, “Any other person, with leave of the court.” It is undisputed that the applicants fall within the “any other person” category and therefore require leave of the court to bring an application pursuant to s. 42(1): s. 42(4), item 6.
[37] The applicants rely on their amended notice of application as the document in which they request the leave they require. Anthony does not take issue with the applicants proceeding in that manner. Anthony consents to the applicants being granted leave to pursue an order requiring him to pass his accounts in his capacity as attorney for property.
[38] There may be overlap in the evidence upon which the parties rely related to the request for an order requiring Anthony to pass his accounts and the evidence upon which the parties rely related to the request to set aside the wills and powers of attorney. The issues on the motion for an order requiring a passing of accounts are, however, distinct from the issues on the application to set aside the 2017 documents.
[39] The parties agree that the applicants’ requests for relief related to the passing of accounts and for the challenge to the 2017 documents can be determined in a single hearing. That said, in their amended notice of application, the applicants do not fully particularize the grounds upon which they rely in support of their request for an order requiring Anthony to pass his accounts.
[40] It is important that both Anthony and the court understand the grounds upon which the applicants rely in support of that element of the relief requested. For that reason, the court requires the applicants to serve a motion record specific to the request for an order for Anthony to passing his accounts. The relief requested, the grounds in support of the relief requested, and the documentary evidence upon which the applicants rely must be fully particularized in the notice of motion.
[41] The motion will be heard at the same time as the application for an order setting aside the 2017 documents. The parties agree upon a timetable for the exchange of documents on the motion. The timetable is set out in the order made at the end of this endorsement.
The Production of Bank Records
[42] The applicants request an order for the production of the records from the Bank of Nova Scotia for accounts, credit cards, and the like in Josephine’s and/or Michael’s name over time. Anthony consents to that relief being granted.
The Motion to Strike an Exhibit and Related Paragraphs from Sheila’s Affidavit
[43] Anthony’s motion is for an order striking, from Sheila’s affidavit, (a) Exhibit “Z” (“the Exhibit), and (b) all paragraphs in the affidavit in which Sheila refers to the Exhibit.
[44] The Exhibit is titled, “Examination of Financial Documents”. The introductory paragraph of the Exhibit explains that the document “is prepared for the convenience of the court”. The applicants acknowledge that the Exhibit was prepared by their counsel. The Exhibit includes financial information, which is explained or sourced in Sheila’s affidavit. The Exhibit also includes calculations based on assumptions about interest rates and rates of return; there is no evidence before the court to support the assumptions made.
[45] Because the Exhibit was prepared by the applicants’ counsel, as alternative relief on his motion, Anthony requests an order that the applicants be required to retain another lawyer to represent them on the motion and the application. Anthony relies on Law Society of Ontario guidelines and the case law regarding a lawyer not appearing as counsel on a matter in which the lawyer is also a witness (or the source of information upon which an affiant relies).
[46] The parties consent to an order striking Exhibit “Z” and permitting the applicants to file an aide memoire for the assistance of the court on the return of the passing of accounts motion. The applicants are not required to file an aide memoire; they may file such a document if they choose to do so.
[47] If the applicants file an aide memoire, it must (a) be restricted to information found in Sheila’s affidavit; (b) include citations to the specific paragraph(s) in Sheila’s affidavit from which the information is sourced; and (c) not include assumptions which are unsupported by the evidence before the court.
[48] Anthony’s motion for an order striking all paragraphs in which the Exhibit is mentioned is adjourned. The parties are to review Sheila’s affidavit and attempt to agree upon the paragraphs to be struck, in whole or in part, as a consequence of Exhibit “Z” being struck. If the parties are unable to reach an agreement in that regard, Anthony may secure a date for the continuation of his motion. The continuation of the motion will be restricted to the paragraphs in Sheila’s affidavit about which the parties are unable to agree.
Other Matters
[49] The applicants and Anthony request that, in this endorsement, the court address the continuation of the cross-examination of Anthony on his affidavit(s) filed in response to the application. To date, the applicants have cross-examined Anthony on issues other than those related to the challenge to the 2017 documents. The applicants wish to cross-examine Anthony on those issues. In addition, the applicants may wish to cross-examine Anthony on any affidavit he files for the purpose of the passing of accounts motion.
[50] Anthony is concerned that he is not subject to unduly protracted cross-examination or that he is not subject to questioning on matters previously addressed.
[51] The applicants estimate that they require up to a full day to complete Anthony’s cross-examination regarding the challenge to the 2017 documents. Prior to the completion of the exchange of documents for the passing of accounts motion, it is not possible to estimate how long any of the parties may require for cross-examination on affidavits filed in support of or in response to that motion. For that reason, the court does not set any time limits on cross-examination.
[52] If the parties require the assistance of the court in setting time limits for cross-examination of any affiant, the parties may schedule a case conference before an Associate Justice of this court.
Disposition
[53] The court makes the following order:
Leave to Amend the Title of Proceeding
- The title of proceeding shall be amended such that, in all documents served or delivered subsequent to the date of this order, the respondent, “The estate of Josephine Dawson, deceased,” shall be described instead as “Anthony Vikram Dawson, in his capacity as the Estate Trustee of the Estate of Josephine Dawson, Deceased”.
The Applicants’ Respective Visits with Michael Dawson
The applicants shall visit the respondent, Michael Dawson, forthwith and on the following terms: a) The parties shall co-operate in arranging for the visits to take place forthwith; b) The applicants shall individually visit with Michael Dawson; c) Each visit shall be limited to a maximum of ten minutes; d) Each visit shall be supervised by either the Executive Director or a nurse working at the long-term care facility in which Michael Dawson resides; and e) The Executive Director or the nurse supervising the visit shall, i) Have the sole discretion to determine whether the visit will, based on Michael Dawson’s best interests, take place on the date and at the time arranged; ii) Have the sole discretion to determine whether it is Michael Dawson’s best interests that the visit lasts the maximum duration of ten (10) minutes or is concluded prior to the expiration of ten (10) minutes; and iii) Remain present, in a manner entirely at their discretion, for the duration of the visit.
The order made in paragraph 2, above, is without prejudice to the applicants bringing a further motion for one or more subsequent visits with Michael Dawson.
Production of Records from the Bank of Nova Scotia
Anthony Vikram Dawson shall, within five days of the date on which this order is issued, entered, and released to him, send a copy of the order to the Bank of Nova Scotia, its affiliates, and subsidiaries.
The Bank of Nova Scotia, its affiliates, and subsidiaries shall, within thirty (30) days of receipt of a copy of this order, produce to the lawyer of record for Anthony Vikram Dawson copies of all bank statements, credit card statements, investment account statements, and financial statements of any kind pertaining to, a) Michael Dawson (also known as Manual Dawson), of Ottawa, Ontario (DOB: March 13, 1923), for the period August 1, 2018 to the present; and b) the Late Josephine Dawson (DOB: October 16, 1932 and deceased, January 11, 2023), for the period from August 1, 2018 to January 11, 2023. The documents described in this paragraph are hereinafter referred to as “the Records”.
The applicants shall be responsible for paying the amount charged by the Bank of Nova Scotia, its affiliates, and subsidiaries for the production of the Records. Said amount shall be paid by the applicants prior to the production of the Records pursuant to paragraph 5, above.
Anthony Vikram Dawson shall, within five business days of the date of receipt of the Records, make available to any party to this proceeding who requests same, copies of the Records, and of the cover letter(s) under which the Records are sent to Anthony Vikram Dawson. The cost of reproduction shall be paid by each party requesting copies of the Records and be paid prior to the requesting party’s receipt of a copy of the Records.
Motion for an Order Requiring Anthony to Pass His Accounts
The applicants are granted leave to bring a motion, within this proceeding, for an order requiring Anthony Vikram Dawson to pass his accounts in his capacity as the attorney for property (“the passing of accounts motion”), a) for the Late Josephine Dawson, from August 1, 2018 to the date of her death on January 11, 2023; and b) for Michael Dawson, from August 1, 2018 forward and for the entire period throughout which Anthony Vikram Dawson has acted and continues to act as Michael Dawson’s attorney for property.
The parties shall follow the timetable set out below for the exchange of materials for and cross-examinations in the context of the passing of accounts motion: a) The applicants shall, within sixty (60) days of the date of receipt of the Records, serve the motion record; b) The respondent, Anthony Vikram Dawson, shall, within sixty (60) days of the date on which he is served with the motion record, serve his responding motion record; c) The applicants shall, within twenty (20) days of the date on which they are served with the responding record, serve their reply record; d) All cross-examinations shall be completed within one hundred and twenty (120) days of the date on which the motion record referred to sub-paragraph (a), above, is served on the respondent, Anthony Vikram Dawson; and e) The parties shall otherwise comply with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for service and filing of documents required on the motion and comply with the most recent notices to the profession regarding electronic filing and uploading documents to Caselines.
The passing of accounts motion shall be heard together with the application.
For the hearing of the passing of accounts motion and application, the parties shall each file, a) a single factum, up to a maximum of thirty-five (35) pages, addressing all issues to be determined on the passing of accounts motion and the application, which factum shall serve in place of any factum filed to date by any of the parties; and b) a compendium, which shall serve in place of any compendium previously filed.
The applicants shall, on the return of the passing of accounts motion and application, be entitled to file an aide memoire as described in the court’s endorsement dated June 3, 2024.
Sheila Dawson’s October 21, 2023 Affidavit
Exhibit “Z” shall be struck from the affidavit of Sheila Dawson sworn on October 21, 2023.
The balance of Anthony Vikram Dawson’s motion, for relief related to the contents of Sheila Dawson’s affidavit sworn on October 21, 2023, is adjourned. Anthony Vikram Dawson shall be entitled to continue that motion only in relation to contents of the affidavit about which the parties are otherwise unable to agree.
Representation of the Estate of Josephine Dawson
If one or more of the parties intends to bring a motion addressing the manner in which the Estate of Josephine Dawson, Deceased, is represented in this proceeding, that motion shall be heard and determined, including any appeal from the decision at first instance, prior to the return of the passing of accounts motion and application.
If one or more of the parties brings a motion addressing the manner in which the Estate of Josephine Dawson, Deceased, is represented in this proceeding, the parties shall exchange materials on the motion no later than pursuant to the timetable set out in paragraph 9, above.
[54] I remain seized of the matter. The passing of accounts motion and application shall proceed before me on a date to be arranged by the parties with the assistance of the Civil Trial Co-ordinator’s Office.
[55] If the parties require any appearances, other than the case conference referred to herein, the parties shall request the appearance before me. I will determine whether the appearance will be before me or before an Associate Justice. Requests for any such appearances shall be made through the Civil Trial Co-ordinator’s Office.
Costs
[56] The parties achieved mixed success on the matters before the court on May 28, 2024. The costs of that appearance will be determined as part of the costs of the passing of accounts motion and the application.
[57] The court urges the parties to be mindful of the costs they have incurred to date and their use of judicial resources.
[58] The court did not, on May 28, 2024, ‘hear’ any of the interim motions or the application. The court engaged in a full day of discussion with counsel for the parties in an effort to have the parties agree to the relief to be granted.
[59] With minimal, if any, exception, the issues resolved on May 28, 2024, could have been resolved through a more collaborative approach to the proceeding. The parties are urged to refrain from taking intransigent positions on matters which call for negotiation and compromise – without prejudice to the parties respective positions on the substantive issues.
[60] The parties are reminded that the ‘modern’ approach to costs of estate litigation is not to order that all costs be paid out of the subject estate. Parties are frequently ordered to bear their own costs, at least in part if not entirely.
[61] The parties must consider the value of the estate at stake – said to be in the range of a high six-figure amount to a low-seven figure amount. The parties are encouraged to take an approach to this proceeding which is proportionate to the monetary amount involved.
[62] Last, the matters addressed in this endorsement consumed in excess of two days of judicial resources (preparatory reading, time in court, and preparation of this endorsement). As already noted, the matters addressed in this endorsement could have been resolved through negotiation and a collaborative approach to the proceeding. The court encourages the parties to restrict their use of judicial resources to substantive matters; procedural matters should, where possible, be resolved between the parties.
Date: June 3, 2024 Justice S. Corthorn
[^1]: Throughout the balance of this endorsement, I refer to the parties and to the deceased, Josephine Dawson, by their respective first names. No disrespect is intended by my doing so.