Court File and Parties

COURT FILE NO.: CV-22-00691245-00ES DATE: 20240617

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE PROPERTY OF DORIS KATHLEEN BOGUE

RE: COLIN BOGUE in his capacity as attorney for property for Doris Kathleen Bogue Applicant

AND:

GLENN BOGUE in his capacity as attorney for property for Doris Kathleen Bogue and personally Respondent

BEFORE: Justice A.A. Sanfilippo

COUNSEL: Liza Saad, for the Applicant Glenn Bogue, Self-represented Respondent

HEARD: April 16, 2024

Endorsement

[1] The Applicant, Colin Bogue, and the Respondent, Glenn Bogue also known as Spirit Warrior, are co-attorneys for the management of the property of their 97-year-old mother, Doris Kathleen Bogue. The Applicant seeks an order to remove his brother as co-attorney for property.

A. Uncontested Facts

[2] Ms. Bogue was predeceased by her husband and has two other adult children in addition to the Applicant and the Respondent, namely, Sandra Kolpakow and Brian Bogue. Ms. Bogue resides in a long-term care facility. Her treating family physician wrote on May 18, 2022 that Ms. Bogue suffers from a major neurocognitive disorder and “is definitely incapable of managing her own financial affairs or making any decisions regarding her care”. The parties did not dispute that Ms. Bogue lacks capacity to make decisions regarding the management of her property.

[3] Ms. Bogue executed a Continuing Power of Attorney for the Management of Property on July 23, 2013 (the “POAP”) in which she appointed the Applicant and the Respondent to act jointly as her attorneys for property, “to make decisions on [her] behalf concerning the management of [her] property”. Ms. Bogue declared in the POAP that the powers that she conferred to her attorneys “may be exercised during any future incapacity on my part to manage property”. Ms. Bogue’s execution of the POAP was witnessed by two witnesses, as required by s. 10(1) of the Substitute Decisions Act, 1992 [^1]. No one challenges that the powers conferred by the POAP may now be exercised by Ms. Bogue’s attorneys for property, considering Ms. Bogue’s incapacity.

[4] Ms. Bogue also executed on July 23, 2013, a Continuing Power of Attorney for Personal Care (the “POAPC”) in which she appointed the Applicant and Ms. Kolpakow to be her attorneys for personal care decisions. On June 4, 1994, Ms. Bogue executed a last will and testament wherein she appointed the Applicant and Ms. Kolpakow as trustees and directed that the residue of her estate be distributed to her four children in equal shares (the “Will”).

[5] The largest asset owned by Ms. Bogue was a house known municipally as 24 Watercliffe Road, Toronto, Ontario (the “Watercliffe Property”). Considering Ms. Bogue’s need for the comprehensive care provided by a long-term facility, and since she also needed money to fund the monthly expense of her care, the Applicant and the Respondent agreed, as joint attorneys for property, to sell the Watercliffe Property.

[6] The sale of the Watercliffe Property completed on July 19, 2022. The Statement of Adjustments shows that balance due and payable to Ms. Bogue on the closing was $1,096,847.28. The Statement of Receipts and Disbursements shows that the net proceeds paid to Ms. Bogue was $937,708.03. Apart from the payment to the real estate lawyer, Mr. Anton Brunga, of his fees and disbursements totaling $2,047.25, the following amounts were paid to family members: $73,223.00, to the Applicant; $28,869.00, to the Respondent; $5,000.00, to Ms. Kolpakow (collectively, the “Family Member’s Disbursements”).

[7] The Applicant stated that of the $73,233.00 that he received, the amount of $64,723.00 constituted repayment of a loan that he had advanced to his mother, and the balance of $8,500.00 was in reimbursement of funds that he paid to Ed Munro in settlement of amounts said to be owed for informal caregiving services provided by Mr. Munro to Ms. Bogue. The Respondent stated that the $28,869.00 that he was paid was for expenses incurred in negotiating a “severance” with Mr. Munro. I saw no basis for the payment to Ms. Kolpakow.

[8] The Family Member’s Disbursements were paid by Mr. Brunga further to a written Direction dated July 12, 2022 that was provided to Mr. Brunga jointly by the Applicant and the Respondent in their capacity as joint attorneys for property (the “Direction Regarding Funds”). The Direction Regarding Funds also directed Mr. Brunga to make further distributions to the siblings from the net sale proceeds, as follows:

After payment of the Realtors and your fee of $1,500, the balance is to be paid into a Joint Account requiring both POA’s signatures for all transactions, followed by a 4 way equal split of the balance among the Bogue siblings. [emphasis in original]

[9] The amount of $937,708.03, together with accrued interest, has, since July 19, 2022, been held by the real estate lawyer, Mr. Brunga, in trust for Ms. Bogue (the “Trust Funds”). The Applicant deposed, on November 25, 2022, that the amount being held in trust totals approximately $968,000.00. The parties do not dispute that the Trust Funds have not been used for Ms. Bogue’s care since they were realized in July 2022 due to disagreements between the joint attorneys for property.

B. The Applications

[10] The first application between the parties regarding the attorneyship of their mother was brought by Glenn [^2] against Colin, his spouse Gloria Bogue, and Ms. Kolpakow on September 22, 2022, in court file number CV-22-00687532-00ES. Glenn sought, amongst other things, an order transferring one-quarter of the Trust Funds to a Northern Credit Union Account to be held in ownership by both attorneys for property, and a partial distribution of the Trust Funds (the “First Application”).

[11] The First Application was dismissed by order of Gilmore J. issued March 13, 2023. [^3] Glenn’s motion for leave to file a notice of appeal from this order was granted by the Court of Appeal only to extend the time to file a Notice of Appeal of the cost order made by Gilmore J. against Glenn personally (the “CA Leave Order”). [^4] Glenn did not file the Notice of Appeal but rather filed a notice of motion seeking a panel review of the CA Leave Order. On April 9, 2024, Brown J.A. directed the Registrar to initiate the Court of Appeal’s process under r. 2.1.02 in respect of this motion. [^5] On June 4, 2024, the Court of Appeal dismissed this motion. [^6]

[12] This Application was brought by Notice of Application issued by Colin against Glenn on December 5, 2022. Colin seeks an Order removing Glenn as attorney for property of Ms. Bogue, and to require Glenn to pass accounts of the attorneyship.

C. Procedural Background

[13] At a Case Conference conducted on November 15, 2023, Colin sought a timetable for the development of this Application and a hearing date for its determination. Glenn submitted that he intended to bring his own application to remove Colin as attorney for property. Glenn contended that he was not required to retain a lawyer to act for him on this further application, considering the requirements of r. 15.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Glenn submitted that r. 15.01 cannot override Indigenous laws protected by the United Nations Declaration on the Rights of Indigenous People (“UNDRIP”) and s. 35 of the Constitution Act, 1982, relying on R. c. Montour, 2023 QCCS 4154. Glenn submitted that he intended, within 30 days, to seek an order before the Indigenous International Court-Turtle Island to remove Colin as a co-attorney for property. To provide Glenn with an opportunity to do so, Dietrich J. adjourned this Application to December 19, 2023, directing in her endorsement as follows: “If at that time, the Respondent has not obtained the order he says that he can obtain from the Indigenous Court, or if such order is not recognized by the Ontario Superior Court of Justice, then the Applicant shall be granted the relief that he seeks today.”

[14] By the return of this Application on December 19, 2023, Glenn had not obtained any order from the Indigenous International Court-Turtle Island, whether to remove Colin as a co-attorney for property or otherwise. Accordingly, Dietrich J. ordered a timetable for the completion of cross-examinations, waived the requirement for mandatory mediation and set the hearing date of this Application as April 16, 2024.

[15] Glenn requested a Scheduling Appointment that was conducted on March 20, 2024. Glenn submitted that he intended to bring a further Application for the enforcement of orders that he intended to seek from Indigenous tribunals, for specific performance of the Direction Regarding Funds to allow for the distribution to the siblings of the Trust Funds, for a declaration that Colin has not established a loan from Ms. Bogue, and for other relief. Glenn sought a hearing date for this proposed application that had not yet been issued. Faieta J. denied the relief sought by Glenn and ordered that this Application be heard on April 16, 2024, considering that Glenn had not issued the further proposed application and because the Trust Funds continued to be unavailable for use in the care and support of Ms. Bogue.

D. Analysis

[16] In Public Guardian and Trustee v. Dhuruvasangary, 2024 ONCA 289, at para. 4, the Court of Appeal affirmed the two-part test for terminating a power of attorney: “namely, whether there is strong and compelling evidence of misconduct or neglect and whether the attorney is serving the incapable person’s best interests.” [^7] The court’s authority to remove an attorney selected by a grantor who has become incapable is part of the court’s parens patriae jurisdiction to protect the best interests of the vulnerable. [^8]

(a) The Parties’ Positions

[17] Colin submitted that Glenn has failed to perform and exercise his duties diligently, with honesty and integrity, with the result that he has caused the funds relied on for Ms. Bogue’s care, the Trust Funds, to effectively be frozen for almost two years, since July 19, 2022. Colin deposed that Ms. Bogue has incurred a shortfall of expenses over income of $17,452.42 over the time that the Trust Funds have been unavailable to her.

[18] Colin submitted that Glenn’s insistence that one-quarter of the Trust Funds must be segregated in a trust account with a credit union due to Glenn’s distrust of the Canadian banking system shows that his primary focus is the protection of his inheritance rather than the protection of Ms. Bogue. Colin maintained that this is further reinforced by Glenn seeking, in the First Application, a partial distribution of the Trust Funds when his fiduciary obligation as an attorney for property is the preservation and management of the Trust Funds for the protection of Ms. Bogue. Colin contended that these steps reflect that Glenn is motivated by self-interest and not by the protection of Ms. Bogue. Colin submitted, further, that Glenn is incapable of acting in Ms. Bogue’s best interest because he has been suspended as a member of the Law Society of Ontario on the finding of incapacity. [^9]

[19] Glenn renewed his submission of the applicability of Indigenous law, primarily to assert that he should be permitted to represent himself notwithstanding the requirements of r. 15.01. I do need to decide this issue to permit Glenn to appear and make submissions on his own behalf in this Application because Colin brought this Application against Glenn “in his capacity as attorney for property for Doris Kathleen Bogue and personally” (emphasis added).

[20] Dietrich J. provided Glenn with an opportunity to obtain an order from the Indigenous International Court-Turtle Island. Glenn did not act on this opportunity. If Glenn’s submissions on Indigenous law were intended to oust the jurisdiction of the court to protect Ms. Bogue, they are flawed. Colin brought this Application properly before the court under the Rules and the SDA, as has been acknowledged by Glenn both in invoking this court’s jurisdiction by bringing the First Application and by Glenn bringing the further application that he raised before Faieta J.

[21] Glenn maintained that he is discharging his duty as a fiduciary for Ms. Bogue by demanding that the Trust Funds not be held at a chartered bank because he firmly believes that there is an imminent risk of a global collapse in the banking system with the result that the Trust Funds will be lost. Glenn maintained that the Trust Funds could not be held in a CIBC account jointly owned by Colin and Ms. Bogue because the CIBC would only permit Glenn signing rights as co-account owner through probate. Glenn opposes probate, prematurely and without acknowledgment that the Will does not appoint Glenn as a trustee. Glenn contended that Colin has already improperly taken funds from Ms. Bogue as an unproven gift. Glenn maintains that the proper approach to the management of Ms. Bogue’s property is to set aside $80,000.00 for Ms. Bogue’s care needs and for Glenn and his siblings to immediately divide the rest. Glenn insists that this approach was agreed to by all the siblings, including Colin, as reflected in the Direction Regarding Funds.

(b) Removal of the Respondent as Co-Attorney

[22] An attorney acting under a continuing power of attorney is a fiduciary. [^10] When acting on behalf of a grantor who has lost capacity, the attorney’s duties approach that of a trustee. [^11] Section 38(1) of the SDA provides that where a grantor is incapable of managing property, or the attorney has reasonable grounds to believe that the grantor is incapable of managing property, the duties set out in s. 32(1) apply. Section 32(1) of the SDA provides that “[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.” [^12]

[23] In my view, the Respondent has neglected his duties to Ms. Bogue, subordinating her needs to issues that are not in her best interests and are not material to the attorneyship. The continued dysfunction between the Applicant and the Respondent is contrary to Ms. Bogue’s best interests. I thereby conclude that the Respondent shall be removed as co-attorney of property. I will explain this determination.

[24] First, the Respondent’s continued insistence that the Direction Regarding Funds be implemented misunderstands that the Respondent has no entitlement to a distribution of the Trust Funds. These are Ms. Bogue’s funds, to be used solely for her use and benefit. In insisting that a fund of some $80,000.00 be set aside for Ms. Bogue’s needs and the siblings divide the rest of the Trust Funds, and in advocating for individualized management of his “quarter share”, the Respondent has placed his interests and the interests of his siblings above the interests of Ms. Bogue.

[25] Second, the Respondent’s focus, and insistence on his belief that the international banking system is in danger of collapse shows a lack of understanding that Ms. Bogue’s needs are immediate and that the attorney for property’s focus must be the best interests of the vulnerable person. The Respondent fails to recognize that his belief of frailty in the international banking system is no moment to Ms. Bogue, considering her circumstances. She needs, immediately, the use of the money that belongs to her.

[26] Third, the Respondent has emphasized the need to make payments to Mr. Munro from Ms. Bogue’s resources, allegedly to pay for informal caregiving services provided to Ms. Bogue, on the submission that the Respondent is guarding Ms. Bogue from a potential claim by Mr. Munro. The record did not contain evidence of an agreement between Ms. Bogue and Mr. Munro, or evidence of exposure of Ms. Bogue to a claim by Mr. Munro.

[27] Fourth, the Respondent has pursued ongoing disagreements with his brother in the First Application, this Application and another proceeding now threatened, incurring mounting litigation expense and causing delay without regard to making funds available for Ms. Bogue’s monthly care needs. Rather, the Respondent has conditioned the availability of funds to Ms. Bogue on the distribution of funds to him. The Respondent’s disputes with the Applicant, whom he professes to hold in high regard, raise issues that are more appropriately the subject of a passing of accounts of the attorneyship, including: (a) the legitimacy and validity of the loan repayment made to the Applicant upon the sale of the Watercliffe Property; and (b) the payments made further to alleged obligations to Mr. Munro.

[28] The incessant disputes between the Applicant and the Respondent have not dissipated for over two years and show signs of continuing, if not expanding. This is not in Ms. Bogue’s best interests. Rather, it is in Ms. Bogue’s best interest that the Respondent be removed as her co-attorney for property.

[29] In making this finding, it is not necessary to determine the Applicant’s submission that the Respondent should be removed as joint attorney for property because he was found to be incapable as part of the proceeding that resulted in his suspension as a lawyer. I do not need to rely on this ground as a basis for my determination of this Application.

[30] On these reasons, I order that the Respondent shall be removed as a co-attorney of property for Ms. Bogue under the POAP.

(c) Order for Passing of Accounts of the Attorneyship

[31] In removing the Respondent as co-attorney of property under the POAP, the Applicant is left as the sole attorney of property for Ms. Bogue. The Respondent submitted, correctly, that the Applicant was a signatory to the Direction Regarding Funds and thereby intended to join with the Respondent in receipt of a share of the Trust Funds. While contrary to his duty as an attorney for property to take a share of these funds during Ms. Bogue’s lifetime, I accept that the Applicant has renounced the Direction Regarding Funds and has blocked its completion by denying the Respondent’s insistence that it be implemented.

[32] The Applicant, in his capacity as co-attorney for property, paid himself the amount of a loan that he claims was owed to him by Ms. Bogue. The Respondent challenges the validity of this payment. In my view, the proper process for accounting for this loan payment, and other accounting of Ms. Bogue’s property is in a passing of accounts.

[33] The purpose of the SDA is to protect the vulnerable. [^13] Further to this objective, s. 42 of the SDA provides the court with authority to order that all or a specified part of the accounts of an attorney be passed.

[34] The Applicant sought an order that the Respondent pass his accounts of the attorneyship. I decline to make this order because the only evidence of the Respondent having possession of funds belonging to Ms. Bogue was the distribution by the joint attorneys for property to Glenn of $28,869.00 from the net sale proceeds of the Watercliffe Property. [^14] The Applicant has direct knowledge and involvement in this transfer. This can be considered in a passing of accounts application brought by Colin.

[35] Colin swore that he understands that he has a duty to account, stating as follows: “I understand that if I remain as a sole attorney for property that I may be responsible to account for the management of my mother’s finances and I have no issue with doing so. … I am prepared to make full disclosure of my management of my mother’s property as legally required by me.” [^15]

[36] At the hearing of the Application, I requested, and heard the Applicant’s submissions on an order for a passing of accounts by the Applicant in the event of removal of the Respondent as co-estate trustee. All matters considered, I order, on the basis of s. 42 of the SDA and in my determination of Ms. Bogue’s best interests, that the Applicant shall bring an application to pass accounts of the attorneyship of Ms. Bogue upon the conclusion of the attorneyship or in any event within two years of the date of this Order.

E. Disposition

[37] On the basis of these Reasons, an Order shall issue in the following terms:

(a) Glenn Bogue also known as Spirit Warrior is removed as attorney for property of Doris Kathleen Bogue under the Continuing Power of Attorney for the Management of Property dated July 23, 2013.

(b) Colin Bogue shall keep records and shall commence, upon the conclusion of the attorneyship of Ms. Bogue or in any event within two years of the date of this Order, an Application to pass his accounts of the attorneyship. The passing of accounts shall comply with Rule rr. 74.16 to 74.18 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[38] This endorsement and the orders contained in it shall have the immediate effect of a court order without the necessity of the issuance and entry of a formal order. Nonetheless, any party may take out a formal order by filing a draft order on CaseLines, together with the approval as to form and content of all parties, and forwarding a copy, in PDF and Word format, to the Estates List Trial Coordinator, to be brought to my attention. In the event of disagreement, any party may request the scheduling of a Case Conference to settle the form of the order.

F. Costs

[39] The parties are encouraged to agree on the issue of costs.

[40] If the parties cannot agree on the issue of costs, any party seeking costs may, by July 5, 2024, deliver by email to the Estates List Trial Coordinator after service and filing on CaseLines, written costs submission of no more than 5 pages, plus a Bill of Costs. Any party against whom costs is sought may, by July 26, 2024, deliver by email to the Estates List Trial Coordinator after service and filing on CaseLines, responding cost submissions of the same length. If no party delivers any written cost submissions by July 26, 2024, I will deem the issue of costs to have been settled.

Justice A.A. Sanfilippo Date: June 17, 2024

[^1]: S.O. 1992, c. 30 (the “SDA”). [^2]: For brevity and clarity, I will at times refer to the Applicant and Respondent by their first names, respectfully, in the same manner as they were referred to in their Application Records. [^3]: Bogue v. Bogue, 2023 ONSC 1642. [^4]: Bogue v. Bogue (COA-24-OM-0048). [^5]: Bogue v. Law Society of Ontario, 2024 ONCA 264. [^6]: Bogue v. Law Society of Ontario, 2024 ONCA 452. [^7]: Also, Teffer v. Schaefers (2008), 93 O.R. (3d) 447, at paras. 24-25 (S.C.); Nicoletti v. Nicoletti, 2014 ONSC 4545, at para. 34; Carey v. Carey, 2018 ONSC 4564, at para. 52. [^8]: E. (Mrs.) v. Eve, [1986] 2 SCR 388, at paras. 41, 73, 75-77; McMaster v. McMaster, 2013 ONSC 1115, 86 E.T.R. (3d) 125, at paras. 26-28; Chang v. Hsieh, 2023 ONSC 5895, at para. 10. [^9]: Law Society of Upper Canada v. Bogue, 2017 ONLSTH 119; Law Society of Ontario v. Bogue, 2019 ONLSTH 53; Law Society of Ontario v. Bogue, 2019 ONLSTH 107; Law Society of Ontario v. Bogue, 2020 ONLSTH 21; Law Society of Ontario v. Bogue, 2020 ONLSTA 11; Law Society of Ontario v. Bogue, 2021 ONLSTA 2; Glen Patrick Bogue (a.k.a. Spirit Warrior) v Law Society of Ontario, 2023 ONSC 3654 (Div. Ct.); Bogue v. Law Society of Ontario, 2024 ONCA 452. [^10]: Richardson Estate v. Mew, 2009 ONCA 403, 96 O.R. (3d) 65, at para. 48, citing Banton v. Banton (1998), 164 D.L.R. (4th) 176 (Ont. Gen. Div.), at p. 239. [^11]: Ibid. [^12]: See Bellefeuille v. Bellefeuille, 2018 ONSC 6802, at para. 5. [^13]: Abrams v. Abrams, at para. 47. [^14]: Affidavit of Colin Bogue sworn November 25, 2022, Exhibit “P”. [^15]: Affidavit of Colin Bogue sworn November 25, 2022, at para. 41.