Court File and Parties

COURT FILE NO.: CV-23-00697933-00ES DATE: 20241114 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ADA DE NOVELLIS and MICHAEL CECI, Applicants AND: DARIO CECI, DOLOROSA CECI and PUBLIC GUARDIAN AND TRUSTEE, Respondents

BEFORE: M.D. Faieta J.

COUNSEL: Peter Neufeld, for the Applicants Benjamin D. Arkin & Alexandra M.H. Cuperfain, for the Respondent Dario Ceci Natalia Angelini, for the Respondent Dolorosa Ceci No one appearing for the Public Guardian and Trustee

HEARD: April 10, 2024

Endorsement

[1] Dolorosa is a 92-year-old widow who suffers from dementia. Her husband, Gaetano Ceci, died in June 2016. They emigrated to Canada in 1963 from Italy. They had five children, one of whom, Nancy De Franco, died in October 2022. Dolorosa’s four surviving children are Ada De Novellis (“Ada”), Michael Ceci (“Michael”), Dario Ceci (“Dario”) and Carmine Ceci (“Carmine”).

[2] In February 2023, Ada, Michael and Ada’s husband, Enio De Novellis, commenced an application for an order directing the sale of a property in Caledon, Ontario (“the Farm”) that is owned by several family members, and for the payment of $30,000 in interest on account of funds owned by Ada and Michael that were used to pay off the mortgage on the Farm in 2017. Dolorosa owns a 10% interest in the Farm. See Court File No. CV-23-00694230-00ES (“The Farm Sale Application”).

[3] On April 14, 2023, Ada and Michael commenced two additional applications.

[4] First, Ada and Michael commenced an application, as Nancy’s Estate Trustees, for an order striking out the notice of objection filed by Dario and Carmine that challenges the validity of Nancy’s Will which excludes Dario and Carmine as beneficiaries. See Court File No. CV-23-00697967-00ES (“Application to Strike the Notice of Objection”).

[5] Second, Ada and Michael commenced this guardianship application for, amongst other things: (a) an order that Dolorosa be assessed by a certified capacity assessor; (b) an order that Dolorosa be found incapable of managing property; (c) an order that the Public Guardian and Trustee (“PGT”) arrange for legal representation to be provided to Dolorosa pursuant to section 3 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”); (d) an order terminating any power of attorney documents executed by Dolorosa; (e) an order declaring that Dario holds, by way of resulting or constructive trust, 50% of the beneficial interest in the Whitfield Property; (f) an order that Dario transfer title to the Whitfield Property back into Dolorosa’s name; (g) that leave to issue a Certificate of Pending Litigation be granted in respect of the Whitfield Property; (h) an order compelling Dario to deliver a statement of assets of Dolorosa’s property; (i) an order that Dario commence an application for a passing of accounts beginning June 1, 2016; and (j) an order that Ada and Michael be appointed as co-guardians for care for Dolorosa and as co-guardians for property for Dolorosa.

[6] On this motion, Ada and Michael seek the following relief:

(a) An order providing an accounting of the proceeds from the Whitfield charge;

(b) An order directing Dario to reimburse Dolorosa for any and all payments of legal fees paid from Dolorosa’s assets for the purposes of this application and the applications in Court File No. CV-23-00697967-00ES and CV-23-00694230-00ES; and

(c) An interim and interlocutory injunction restraining Dario from selling or otherwise dealing with Dolorosa’s assets.

[7] Further, the applicants and Dario have agreed to an order that section 3 counsel shall be entitled to the release of Dolorosa’s personal health records and medical records from any person or facility where Dolorosa has received care, without the need for Dolorosa’s consent to be provided.

Background

[8] On February 23, 2018, Dario took Dolorosa to Frank Sgro, a lawyer, where she signed, by marking an X, a continuing power of attorney for property (“CPOAP”) and a power of attorney for personal care that appointed Dario as her attorney. Dolorosa also signed: 1) a transfer of the Whitfield Property from Dolorosa to Dolorosa and Dario, as joint tenants, for no consideration; 2) a transfer of Dolorosa’s partial interest in the Farm from Dolorosa to Dolorosa and Dario, as joint tenants; and 3) a declaration of trust regarding the transfer of title to the Whitfield Property and the Farm that appoints Dario as trustee. Dario states that these steps were taken in order reduce the amount of estate administration tax that would otherwise be payable on Dolorosa’s death. The applicants state that these documents were signed without their knowledge. They also question whether Dolorosa had the capacity to sign these documents and allege that she was coerced to sign these documents. Dario states that the above transfers were done for estate purposes. He does not claim any beneficial interest in the Whitfield Property or Dolorosa’s share of the Farm beyond that which may be gifted to him in her will.

[9] Dario states that he moved into the Whitfield Property in the Fall of 2019 in order to provide Dolorosa with companionship and support. Such support is in addition to the 21 hours per week of publicly funded personal support and homemaking services that Dolorosa receives, and the live-in caregiver whom Dario states he hired in 2016.

[10] The applicants allege that Dario neglects Dolorosa and that he has prevented her from seeing the applicants and their children. They also allege that Dario has kept his siblings “in the dark” about her medical condition and has attempted to cause rifts within the family in order to gain control over their parents’ assets.

[11] A letter dated March 10, 2023 from Dolorosa’s family physician, Dr. Sandy Shulman, states:

To the best of my knowledge, Dario Ceci is the primary caregiver for his mother, Dolorosa Ceci and is taking primary responsibility for her medical care.

[Dolorosa] Ceci lives with a diagnosis of moderate stage mixed dementia and, as a result, [Dario] Ceci has been the direct contact for her medical care and wellbeing. Dario has brought his mother to all her medical appointments at my office as well as phone consultations, consults with me when there are any health concerns. He then carries out all medical requirements, such as administering prescription medications at home, as the patient [Dolorosa Ceci] is not medically able to do this herself.

Through my experience, Dario Ceci has been integral to Dolorosa Ceci being able to live comfortably, and receive proper medical care, despite her diagnosis.

[12] In a letter dated May 1, 2023, Dr. Giovanni Marotta found that Dolorosa had “moderately severe dementia”. His letter states:

… I have followed this woman over the past five years with a progressive, cognitive decline, complicated by chronic paranoia and delusions. She initially presented with severe hearing loss, depressive symptoms, which then went on to be complicated by more significant memory loss in 2019 …

She was last reviewed in March of 2023. Since then she has been medically quite stable and is well cared for by her son now that she has a moderately severe dementia. Today I have spoken directly with the community access care manager who confirms that her care needs are well met and that she too finds her quite stable. … I have asked for the behaviour support team to review her case as it appears that her interactions with her daughter Anna are leading to agitation. …

[13] On November 17, 2023, Sanfilippo J. directed the Public Guardian and Trustee to appoint counsel for Dolorosa pursuant to section 3 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 and ordered that Dolorosa’s assets may be used to pay for her own legal fees.

[14] On December 6, 2023, Dario registered a charge in the amount of $918,433.50 against title to the Whitfield Property in favour of the Equitable Bank (“the Whitfield Charge”). The applicants state that Dario failed to disclose the Whitfield Charge to them, and that he has not provided an accounting of its proceeds. They believe that he has used some of the proceeds for his own personal benefit.

[15] Dario states that $250,000 was advanced on the Whitfield Charge in order to pay for legal fees and for Dolorosa’s personal care expenses. Dario states that the stated amount of the charge is much higher than the amount advanced under the charge so that he will be able to increase the loaned amount without having to register another charge.

[16] Dario states that:

(a) He drew sum of $250,000 under the Whitfield Charge to pay for Dolorosa’s direct personal expenses and for his legal expenses in this guardianship application. There remains $141,000.00.

(b) He has not used Dolorosa’s funds to pay for his legal expenses in the Farm Sale Application. He has paid his own legal expenses in that proceeding.

(c) He is financially illiquid and does not have the financial means to defend the Guardianship Application if he is unable to use Dolorosa’s property.

(d) He is willing to take whatever steps are necessary to ensure that his mother has security for the amounts that he has taken for legal fees for this application. He estimates that his home has equity of about $500,000 and that his 10% interest in the Farm is worth about $2 million.

(e) Dario does not oppose the Farm Sale Application and wants the Farm sold.

Issues

[17] The following issues are to be determined on this motion:

(1) Should Dario be ordered to produce an accounting of the proceeds from the Whitfield Charge?

(2) Should Dario be ordered to reimburse Dolorosa for those funds that he has used to pay his legal expenses in respect of responding to any of the three applications?

(3) Should this court grant an interim order restraining Dario from selling or otherwise dealing with Dolorosa’s assets?

Should Dario be Ordered to Produce an Accounting of the Proceeds from the Whitfield Charge?

[18] The applicants seek an order requiring Dario to pass his accounts given his alleged attempts to take advantage of Dolorosa’s assets for his personal benefit.

[19] Whether such relief should be granted is governed by the principles outlined by the Ontario Court of Appeal in Lewis v. Lewis, 2020 ONCA 56, 55 E.T.R. (4th) 161:

4 Section 42(1) of the SDA provides that "[t]he court may, on application, order that all or a specified part of the accounts of an attorney or guardian of property be passed". In turn, s. 42(4) partially sets out who may make an application under s. 42(1). The list includes specified persons and "any other person, with leave of the court". The jurisprudence suggests that "any other person" will not often be granted leave to bring an application under s. 41(1): see e.g., Groh v. Steele, 2017 ONSC 3625, 29 E.T.R. (4th) 121 (Ont. S.C.J.), at para. 53

5 The parties agree that the test to be applied in determining whether a person should be granted "leave of the court" under s. 42(4) to make an application under s. 42(1) is that set out in Ali v. Fruci (2006), 22 E.T.R. (3d) 187 (Ont. S.C.J.), at para. 3: the court must be convinced that (1) the person or persons seeking leave have a genuine interest in the grantor's welfare; and, (2) a court hearing the application under s. 42(1) may order the attorney or guardian to pass his or her accounts.

6 Even where a person has standing to apply under s. 42(4), it remains in the discretion of the court to order a passing of accounts under s. 42(1): Dzelme v. Dzelme, 2018 ONCA 1018, 46 E.T.R. (4th) 43 (Ont. C.A.), at para. 7; see also McAllister Estate v. Hudgin (2008), 42 E.T.R. (3d) 313 (Ont. S.C.J.), at paras. 9, 13. In Dzelme, at para. 7, this court stated that factors a court considers in exercising its discretion under s. 42(1) include the extent of the attorney's involvement in the grantor's financial affairs and whether the applicant has raised a significant concern in respect of the management of the grantor's affairs to warrant an accounting.

[20] The CPOAP states that “this power of attorney can only be exercised during any subsequent legal incapacity on my part to manage my property”. While Dario states that Dolorosa has never been found to be incapable of managing her property, he nevertheless admits that, since 2020, he has “stepped in to act as her attorney for property”. Given these circumstances, I find that the applicants, as Dolorosa’s children, have a genuine interest in Dolorosa’s welfare.

[21] Dario’s affidavit provides an accounting including bank statements for all of Dolorosa’s accounts from 2017 to present. While he did not manage Dolorosa’s property prior to 2020, Dario nevertheless attempts to explain various transactions. He provides a detailed accounting of banking transactions for the period from January 1, 2022 going forward. Dario further explains why he arranged for the transfer of the Whitfield Property, the Whitfield Charge and how the funds drawn have been used. He confirms that those funds have only been used to pay his legal fees in this application (about $80,000.00) and not the other two applications. In these circumstances, an order requiring Dario to deliver an accounting of the proceeds from the Whitfield Charge is unnecessary.

Should Dario be Ordered to Reimburse Dolorosa for Any and All Payments of Legal Expenses Paid from Dolorosa’s Assets for the Purposes of This Application and the Applications in Court File Numbers CV-23-00697967-00ES and CV-23-00694230-00ES?

[22] As noted, I accept Dario’s evidence that he has not used Dolorosa’s assets to pay his legal expenses in respect of the other two applications. Thus, this issue reduces to whether the applicants are correct in their submission that Dario should not have used Dolorosa’s funds to pay his own legal fees in respect of this guardianship application “… while the validity of the power of attorney documents and trust documents upon which he relies is being challenged [as it] would offend the court’s discretion to allocate costs awards to parties while protecting the incapable person’s property”. In support of this submission, the applicants submit that an attorney must await the determination of a guardianship application on its merits before it has a right to indemnification from the donor. The applicants’ reliance on Fiacco v. Lombardi, [2009] O.J. No. 3670 (Ont. S.C.) and Wercholoz v. Tonellotto, 2013 ONSC 1106 is misplaced as there was nothing said in those decisions which supports their submission.

[23] The CPOAP states:

THIS IS A GENERAL POWER OF ATTORNEY MADE IN ACCORDANCE WITH THE POWERS OF ATTORNEY ACT, R.S.O. 1990, C.P.20 AND THE SUBSTITUTE DECISIONS ACT, 1992, S.O. 1992, C.30.

This power of attorney is given by me, DOLOROSA CECI, of the City of Toronto, in the Province of Ontario.

I appoint my son, DARIO CECI, to be my attorney in accordance with the Substitute Decisions Act, 1992, and to do on my behalf anything that I can do by an attorney subject to the provisions hereinafter set out. ….

In accordance with the Substitute Decisions Act, 1992, I declare that this power of attorney may be exercised during any subsequent legal incapacity on my part to manage my property. …

This power of attorney is subject to the following conditions, restrictions and supplementary powers:

(a) I authorize my attorneys to exercise all such powers in my name as I would be able to exercise had I chosen to exercise such powers myself, or had I legal capacity to exercise such powers. …

(d) I authorize my attorneys to receive, and draw on an interim basis, compensation from my estate in a fair and reasonable amount, or such amount as may be prescribed pursuant to s. 40(1) and s. 90 of the Substitute Decisions Act, 1992, for my attorney’s care, pains, trouble and time expended in and about the administration of my estate. …

(f) My attorneys may manage my estate:

• For my benefit.
• For the benefit of any person, including my attorneys, to whom I am under a legal obligation to provide a benefit, to the extent my attorneys consider it necessary to fulfil such obligation. … [Emphasis added.]

[24] A power of attorney is a type of agency and is subject to various common law and statutory rules: Houston v. Houston, 2012 BCCA 300, 352 D.L.R. (4th) 125, at para. 26. The overarching purpose of power of attorney statutes is to protect the property of a person found to be incapable: See Ian M. Hull and Suzana Popovic-Montag, Power of Attorney Litigation, 2nd ed. (LexisNexis Canada Inc., 2022), at pp. 25, 53.

[25] While the CPOAP allows an attorney to receive compensation from the donor’s property for their services, and s. 40 of the SDA provides that an attorney may take compensation in accordance with a fee schedule prescribed by regulation, there is nothing in the SDA that requires an attorney to be indemnified for their reasonably incurred expenses.

[26] There is nothing in the CPOAP that expressly addresses the payment of the attorney’s legal expenses, as incurred, from the donor’s property during the course of this appointment, nor is there anything in the SDA or the Powers of Attorney Act, R.S.O. 1990, c. P.20 (“POAA”). However, s. 2 of the POAA states:

A general power of attorney for property is sufficient authority for the donee of the power or, where there is more than one donee, for the donees acting jointly or acting jointly and severally, as the case may be, to do on behalf of the donor anything that the donor can lawfully do by an attorney, subject to such conditions and restrictions, if any, as are contained therein. [Emphasis added.]

[27] Whether the broad scope of powers provided by the CPOAP and section 2 of the POAA support the payment of legal expenses, as incurred, from the donor’s property must be considered in light of the overarching purpose of these statutes but also in light of provisions of the SDA.

[28] An attorney for property is a fiduciary: SDA, ss. 32(1), 38(1). As such, an attorney for property is obliged to act only for the benefit of the donor and not for their own benefit unless it is done with the full knowledge and consent of the donor: Richardson Estate v. Mew, 2009 ONCA 403, 96 O.R. (3d) 65, at para. 49. In Richardson, Gillese J.A. stated, at para. 48, that “the scope of the attorney’s fiduciary duties depends on whether the donor of the power is incapable at the time of the transaction. If the donor is mentally incapable, the attorney’s position approaches that of a trustee. If not, the relationship between donor and attorney is similar to one of agency.”

[29] The powers and duties of a guardian of an attorney for property shall be exercised and performed diligently and in good faith: SDA, ss. 66(1), 67(1). If an attorney for property “does not know of a wish or instruction applicable to the circumstances that the incapable person expressed while capable, or if it is impossible to make the decision in accordance with the wish or instruction, the guardian shall make the decision in the incapable person’s best interests”: SDA, ss. 66(3), 67(1).

[30] An attorney acting under a continuing power of attorney has a duty to keep accounts of all transactions if the grantor is incapable of managing property or the attorney has reasonable grounds to believe that the grantor is incapable of managing property: SDA ss. 32(6), 38(1). As noted, an attorney may be compelled to pass their accounts: SDA, s. 42.

[31] The recovery of costs by an attorney from the donor’s property following the determination of an application is informed by the principles outlined by Sanfilippo J. in Bogue v. Bogue, 2024 ONSC 5403, at para. 6:

The exercise of the court's discretion in costs claims in capacity litigation should reflect the basic purpose of the guardianship or attorneyship of property, which is to "protect the property of the person found to be incapable and to ensure that such property is managed wisely so that it provides a stream of income to support the needs of the incapable person". The incapable grantor of a power of attorney should not be required to bear the unnecessary legal costs that result from an attorney failing to perform their duties, but rather only the cost of legal services that benefited the grantor.

[32] The risks and consequences associated with litigation involving a challenge to a power of attorney have been described as follows:

Those who accrue too much in costs, for weak reasons – such as the brother and sister in Wercholoz v. Tonellotto [2013 ONSC 1106] whose requests for costs represented one-third of the grantor’s estate, and were subsequently disallowed – may end up paying themselves. Before pursuing a desired legal outcome, justify the end result. They should be mindful of cases such as [Ziskos v. Miksche [, [2007] O.J. No. 4276]](https://www.canlii.org/en/on/onsc/doc/2007/2007canlii46711/2007canlii46711.html), wherein one group of parties accumulated as much in costs ($1 million) as there was value in the grantor’s estate. Justice Spies only awarded this group a small portion of the costs they incurred. …

It is reasonable, for example, for an attorney to defend himself or herself from allegations of misconduct, and if the attorney is vindicated, there should be “no question” that the costs are reasonable. The legal fees payable also do not need to be incurred purely on behalf of the grantor; the attorney may defend his or her personal interests while also serving the grantor. The trouble is when the attorney’s personal interests are advanced to the detriment of the grantor – then the standard indemnity will become more precarious. …

Most people cannot afford to engage in litigation, but power of attorney litigation is different: generally, so long as the court considers that the litigant has acted reasonably and with a view to the grantor’s best interests, the costs of litigation will fall upon the grantor. As with all litigation, however, beware the loss resulting from defeat, as well as the pyrrhic victory – the legal victory that wastes the grantors estate.

See Ian M. Hull and Suzana Popovic-Montag, Power of Attorney Litigation, 2nd ed. (LexisNexis Canada Inc., 2022), at pp. 53, 56.

[33] Public policy supports the view that an attorney should be permitted to recover their costs in advance of a passing of accounts. The views expressed below by Professor Oosterhoff, in respect of an estate trustee being able to do so, are equally applicable to an attorney for property:

As the word itself suggests, the right to be indemnified implies that estate trustees should bear the costs and expenses themselves first and then seek reimbursement from the estate assets. But this presents a problem. Many trustees and estate trustees do not have the wherewithal to pay the costs out of their own pocket. Nor should they have to. Their office is a socially desirable one which at one time, at least in the case of trustees, was carried out without remuneration.

Of course, a person who has been named to the office does not have to accept it. He may renounce. Most people would probably want to renounce once apprised of the fact that they must pay for all costs and expenses personally and can recover them only afterwards. On that basis few people would agree to take on the office. That is certainly not desirable, for the administration of estates is a socially necessary and desirable function that the law should promote and foster. And so it has long been the practice and the courts have long since recognized that trustees and estate trustees may pay the costs and expenses out of estate or trust assets. ...

See Albert H. Oosterhoff, “Indemnity of Estate Trustees as Applied in Recent Cases” (2013) 41 Advocates’ Q 123.

[34] Rather than act unilaterally, it may be prudent for an attorney to seek directions from the court regarding whether legal expenses should be paid from the donor’s property as they are incurred, and, if so, whether conditions should be imposed: Craven v. Osidacz, 2017 ONSC 1757, 26 E.T.R. (4th) 241, at para. 86; Albert Oosterhoff, Indemnity of Estates Trustees Redux, WEL Blog, August 16, 2017.

[35] In this case, given the transfers and mortgage noted above and notwithstanding the explanation that he has subsequently provided, it would have been sensible for Dario to ask the court for directions pursuant to s. 68 of the SDA regarding the use of his mother’s property to pay for the legal expenses of responding to this guardianship application prior to a passing of accounts. During submissions, I asked counsel for their views on placing a charge on title to Dario’s home in the amount of $250,000 in favour of Dolorosa, without interest, and payable if he is directed by this court to reimburse Dolorosa for expenses paid using her property. Aside from providing security, the charge will promote the proper and reasonable use of Dolorosa’s property for legal expenses. Counsel for the applicants, Dario and section 3 counsel for Dolorosa expressed support for this approach.

[36] I decline to order that Dario reimburse Dolorosa for funds taken from her property that were used to pay legal fees in respect of this guardianship application. A charge, as described, shall be placed on Dario’s home.

Should an Interim Order Restraining Dario from Selling or Otherwise Dealing with Dolorosa’s Assets be Granted?

[37] The applicants ask for “an order enjoining Dario from selling, removing, dissipating, alienating, transferring, assigning, encumbering, or similarly dealing with any of Mrs. Ceci’s assets, including the proceeds from the Whitfield Charge”.

[38] The Applicants rely on Rules 45.01 and 45.02 of the Rules of Civil Procedure.

[39] Rule 45.01(1) states that the “… court may make an interim order for the custody or preservation of any property in question in a proceeding or relevant to an issue in a proceeding, and for that purpose may authorize entry on or into any property in the possession of a party or of a person not a party”.

[40] As noted by Wilton-Siegel J. in Ballantry Construction Management Inc. v. GR (CAN) Investment Co. Ltd., 2024 ONSC 2129, at para. 26:

First, and most importantly, an order under r. 45.01 is only available with respect to "property in question in a proceeding or relevant to an issue in the proceeding." This is understood to mean an asset over which a party asserts a legal right in the proceeding or an asset that could be evidence in the proceeding: see Shanghai Lianyin Investment v. Lu, 2023 ONSC 399 at paras. 10-12 and 14; and Nedaneg Financial Corporation v. Talebzadeh, 2023 ONSC 5209.

[41] In this case, the applicants do not assert an interest in Dolorosa’s property nor is it necessary to preserve her property as evidence in the proceedings. Accordingly, Rule 45.01 is inapplicable.

[42] Rule 45.02 is also inapplicable as the applicants are not claiming a right to a “specific fund”: Sadie Moranis Realty Corp. v. 1667038 Ontario Inc., 2012 ONCA 475, 111 O.R. (3d) 401, at para. 19.

[43] The applicants also rely on s. 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and the three-part test for interlocutory relief established by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311:

(1) Is there a serious issue to be tried regarding the claim?

(2) Have the applicants demonstrated that they would suffer irreparable harm if the relief is denied?

(3) Does the balance of convenience favour the granting of an injunction?

[44] Dario acknowledges that whether he will be required to reimburse Dolorosa for legal fees, despite his position that the guardianship application lacks merit, is a serious issue.

[45] In addition to the charge that I have ordered be placed on his home for Dolorosa’s benefit, Dario also owns a part interest in the Farm. Neither the applicants nor Dolorosa will suffer irreparable harm if this injunction is not granted. Dolorosa will have security in the event that Dario is ordered to reimburse those legal expenses that were paid with her property. Accordingly, the motion for an interlocutory injunction is dismissed.

Order

[46] Order to go as follows:

(a) The applicant’s motion for an accounting is dismissed.

(b) The applicant’s motion for an order directing Dario to reimburse Dolorosa for any and all payments of legal fees paid from Dolorosa’s assets for the purposes of this application and the applications in Court File No. CV-23-00697967-00ES and CV-23-00694230-00ES is dismissed; however, a charge shall, within 30 days, be placed on Dario’s home in the amount of $250,000 in favour of Dolorosa, without interest, and payable in the event that it is directed by this court to reimburse her for expenses paid by her in respect of this guardianship application.

(c) The applicant’s motion for an interim and interlocutory injunction restraining the respondent Dario from selling or otherwise dealing with Dolorosa’s assets is dismissed.

(d) On consent, Dolorosa’s counsel appointed pursuant to section 3 of the SDA shall be entitled to the release of personal health information and medical records, doctors’ reports, notes, files and clinical records, from any and all persons or physicians, institutions, health care facilities or health care providers, in Ontario or elsewhere, where Dolorosa received care, without the need for Dolorosa’s consent to be provided.

(e) Any party seeking their costs shall deliver their costs submissions of no more than three pages, exclusive of an Outline of Costs and any offers to settle, by November 22, 2024. Responding costs submissions shall be delivered by November 29, 2024. Reply costs submissions, if any, shall be delivered by December 4, 2024.

Mr. Justice M.D. Faieta Date: November 14, 2024