Background and Nature of the Motions

[1] Each of the parties has served and filed a motion for today, as scheduled.

[2] The plaintiff's motion seeks an interlocutory injunction to restrain the defendant from dealing with the assets of the estate of the late Carol Phillips.

[3] The deceased, Carol Phillips, passed away at Royal Victoria Regional Healthcare Center ("RVH") in Barrie, Ontario on December 17, 2024.

[4] The plaintiff is the deceased's biological daughter.

[5] The defendant is the deceased's husband, and is not the plaintiff's biological father.

[6] The plaintiff's motion also seeks orders against non-parties: an order directing RVH to release the hospital records of the deceased; an order directing Rogers Communications Inc. to release the records of all calls made from the residential phone line of the deceased to the plaintiff's cell phone; and an order directing Duco & Duco LLP to release a copy of the Last Will and Testament of the defendant.

[7] The defendant's motion seeks to strike the plaintiff's Statement of Claim in its entirety pursuant to rr. 21.01(1)(b) and 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194. It also asks that the plaintiff's notice of motion be dismissed on the grounds that the relief sought is legally unavailable, procedurally improper, speculative, and unsupported by evidence.

[8] The court directed that both motions be argued together because of the mirroring of relief sought in each of the motions, and the overlap between the evidence supporting the relief sought by the plaintiff and the defendant's request for a dismissal of that motion.

[9] From the outset, the court made clear that no evidence would be considered with respect to the motion to strike the claim under r. 21.01(1)(b).

[10] Proof of service on the non-parties was not provided. However, because of the decisions that I have reached, any issue arising from lack of service is moot.

The Pleadings

[11] In brief, the material facts pled in support of the relief claimed are that the defendant failed to inform the plaintiff of her mother's hospitalizations and death, and that he obstructed her from attending a viewing after she passed. Mr. Sanyal, appearing on this motion as agent for the plaintiff, advised the court during argument that the primary ground for the plaintiff's claim is the deliberate act of the defendant in not allowing the plaintiff and the deceased to meet in the hospital once her mother became incapacitated. At that time, the defendant was operating pursuant to a power of attorney for personal care.

[12] The Statement of Claim (the "Claim") was issued on December 27, 2024. It seeks general damages in the amount of $550,000, aggravated and exemplary damages in the amount of $300,000, special damages to be disclosed before trial, costs on a substantial indemnity basis, and interest.

[13] The Claim has been discontinued against Sandra Oakley, who is described in the Claim as the "current Power of Attorney and Aunt to the Plaintiff."

[14] It is not a mischaracterization to describe the contents of the Claim as a recitation by the plaintiff of various forms of mistreatment she experienced from the deceased and others over the course of her entire life. It also refers to grievances that she has with the defendant and describes him in extremely derogatory terms. Other than the prayer for relief, the first 68 paragraphs in the Claim purport to provide the history of the relationships and family dynamics.

[15] There are allegations beginning at paragraph 49 that the defendant interfered with the plaintiff's relationship with her mother and impeded their contact. At paragraph 49, the Claim alleges that the defendant was verbally abusive toward the plaintiff "during and prior to 2017." The pleading goes on to discuss the plaintiff's own husband having a mental breakdown in October 2017. At paragraph 62 the pleading focuses on the 2017 timeframe and states:

The interference of Defendant #2 [Phillips] in 2017 blocked most communication between the Plaintiff and her mother, leaving the Plaintiff traumatized alone at a remote cottage in the forest with no money, no car, no family, and no support structure.

[16] At paragraphs 69 to 74 inclusive, the plaintiff pleads allegations that she was not informed by the defendant of her mother's hospitalizations and alleges that the defendants had a "moral obligation" to notify her.

[17] At paragraphs 75 to 89 inclusive, the plaintiff pleads allegations related to the deceased's final day, and that the plaintiff was not included in a gathering at the hospital.

[18] At paragraphs 90 to 95 inclusive, the plaintiff pleads allegations related to how the plaintiff was unable to attend the cremation of the deceased because of the day on which it was scheduled, with the defendant refusing to move it to the next day.

[19] The plaintiff's action is framed in negligence, pleading that the defendant owed a duty of care to specifically inform her of her mother's death and to facilitate her attendance at the viewing, and that the defendant breached this duty when he failed to notify her of her mother's death and obstructed her ability to attend the viewing. As a result, she alleges that she has suffered significant loss, shock, and mental trauma, all arising from the defendant's negligence. Other particulars of the negligence pled include: 1) neglecting the plaintiff during her mother's hospitalization; 2) failing to inform the plaintiff of her mother's health; 3) deliberately withholding information; and 4) interfering with the plaintiff's ability to be present at her mother's death and viewing.

[20] The Statement of Defence denies all allegations of negligence, breach of duty, and interference. It alleges that the defendant was appointed as Carol Phillips' attorney under a power of attorney for personal care ("Power of Attorney") executed on May 16, 2016. The pleading asserts that the defendant was acting strictly in accordance with the wishes of his wife, who expressly instructed him that the plaintiff was not to be informed about her medical condition, hospitalization, or passing.

[21] The Reply exclusively contains statements that purport to deny the material facts pled in the Statement of Defence.

[22] While no evidence is admissible on a motion to strike under r. 21.01(1)(b), the court may consider documents relied on and referred to in a pleading: McDowell and Aversa v. Fortress Real Capital Inc., 2017 ONSC 4791, at paras. 46-47, rev'd on other grounds, 2019 ONCA 71.

[23] The deceased's Last Will and Testament is referenced at paragraphs 13 and 22 of the Statement of Defence. The defendant has produced a document which appears to be an unsigned copy of a Last Will and Testament of Carol Anne Phillips dated May 16, 2016 (the "Will"), with signature lines for witnesses who are identified as Patrick Duco, a lawyer, and Alyssa Weeks, a law clerk.

[24] The Will appoints the defendant as the sole executor and trustee, with Robert Oakley as an alternative. The Will provides that the entire residue of the deceased's estate is to be inherited by the defendant if he survived the deceased by 30 days.

[25] The Will goes on to provide that if the defendant did not survive the deceased by 30 days, the residue was to be divided into 200 equal shares, and directs that contingent shares are to be given to six named beneficiaries. The plaintiff, named in the Will as Sandra Angelopoulos, is one of the six contingent beneficiaries and entitled to receive 45 shares of the residue. This is the same number of shares that were to be delivered to the defendant's two sons, Wayne and Michael Phillips. The balance of the shares was directed to be distributed between three other contingent beneficiaries whose relationship to the deceased remains unexplained.

[26] The Claim peripherally references the deceased's testamentary document, although it indicates the plaintiff's erroneous belief that Robert Sean Oakley was named as executor. Instead, he appears to have been named as the alternative executor if the defendant renounced or was otherwise unable to act.

[27] Also on May 16, 2016, the deceased executed a Power of Attorney, appointing the defendant as her attorney, referenced at paragraph 14 and 23 of the Statement of Defence. Under the terms of the Power of Attorney, the defendant was authorized to make decisions regarding the deceased's health care, nutrition, shelter, clothing, hygiene and safety, and to give or refuse consent to any treatment under the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A. In the Power of Attorney, the deceased directed that life-sustaining procedures should be withheld if she became incapacitated with no hope of recovery, and that she should be permitted to die with comfort care only.

[28] In her Reply, the plaintiff admits that the defendant held the Power of Attorney and alleges that this imposed a duty to notify her of the severity of her mother's illness and death, and that this document did not grant the defendant authority to restrict her attendance at the hospital or funeral.

The Law on a Motion Under Rule 21.01(1)(b)

[29] Pursuant to r. 21.01(1)(b), a judge may strike out a pleading on the ground that it discloses no reasonable cause of action.

[30] There is a high bar on a test to strike out a claim for disclosing no reasonable cause of action. The test remains as articulated by the Supreme Court of Canada in the leading case of Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959. A motion to strike ought to be granted where it is "plain and obvious" that the pleading discloses no reasonable cause of action. The claim must be certain to fail; if there is a chance that the plaintiff can succeed, the case should be permitted to go ahead. Further, neither the length nor complexity of the issues nor the novelty of the cause of action are alone reasons to strike a claim: Hunt, at p. 980.

[31] In Hunter v. Bravener, the Court of Appeal provided guidance on the circumstances in which the "plain and obvious" test will be met: 1) where the plaintiff pleads allegations that do not give rise to a recognized cause of action; 2) where the plaintiff fails to plead a necessary element of a recognized cause of action; or 3) the allegations in the pleading are simply conjecture, assumptions or speculation unsupported by material facts: at paras. 3-5.

Analysis

[32] The Claim discloses no reasonable cause of action. It is important to note that there is nothing in the Claim that attacks the Will on the basis of undue influence or testamentary capacity, or that alleges a prior or subsequent testamentary document. Nothing in the Claim attacks the validity of the Power of Attorney under which the defendant eventually came to act. The cause of action alleged is negligence.

[33] A negligence action requires the plaintiff to prove the required four elements, as set out in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3:

1. That the defendant owed the plaintiff a duty of care;
2. That the defendant breached the standard of care;
3. That the plaintiff sustained damage; and
4. That the damage was caused, in fact and law, by the defendant's breach.

[34] There is no recognizable duty of care owed to the plaintiff by the defendant in the circumstances laid out in the Claim.

[35] The law does not recognize a cause of action or legal remedy for "interference" with the relationship between two adults, both of whom have legal capacity. Accordingly, all allegations relating to the alleged interference by the defendant in the mother-daughter relationship before the deceased became incapacitated cannot give rise to a cause of action. Mr. Sanyal acknowledged as much in his submissions, clarifying that the information was provided for background narrative.

[36] The same applies with respect to an alleged duty of care on the part of the defendant to inform the plaintiff of her mother's illness and hospitalization. There is no law that supports the notion that even close familial relationships create a duty of care, where adults are concerned, unless a dependency is alleged. No material facts have been pled that allege that the plaintiff was a dependant of the defendant. Accordingly, the allegations that have been pled for the purpose of establishing some interference with the deceased, or "shuttering", as Mr. Sanyal submitted, have no legal relevance.

[37] Once the Power of Attorney was invoked, the sole duty that was owed by the defendant was to the grantor, Carol Phillips, to adhere to the directives in that document and the law as prescribed by the Substitutes Decisions Act 1992, S.O. 1992, c. 30, and the Health Care Consent Act, 1996. There is no law that the plaintiff has referred the court to that requires the grantee of a power of attorney to inform family members of the steps being taken pursuant to that power, or of the medical status of the grantee.

[38] I note that the Claim asserts at paragraph 80, however, that "although Carol may have been unconscious in the end, she was lucid and of sane state of mind during the days she was hospitalized, leading up to that point." Assuming the facts as pled to be correct, the negligence being asserted is alleged to occur during a short window of time, not entirely specified.

[39] The law is clear that a power of attorney for personal care must be exercised in accordance with the express wishes of the grantor. There is no duty owed by the grantee, Kenneth Phillips, to third parties, even if that individual is the biological offspring of the grantor.

[40] The Claim does not allege that the defendant acted outside of the scope of the authority conferred by the Power of Attorney, or contrary to the law. It simply speculates that her mother must have wanted her there. At paragraph 78, the plaintiff alleges that "the Plaintiff's mother would not have ever stated that she did not want her daughter to see her to say a final goodbye."

[41] At paragraph 91, in respect of the funeral arrangements, the plaintiff asserts that the defendant "assumed that he had the authority to decide whether the Plaintiff could have a private moment with her mother." However, the contents of the Claim in this respect are "conjecture, assumptions or speculation unsupported by material facts." The Claim states that the plaintiff assumed that she received a missed call from an unidentified person giving her 24 hours' notice of the deceased's cremation, and that she could not make it to the funeral home in Innisfil from her home in Aurora within that time because she does not drive and lives "a distance away." The plaintiff states in the Claim that she contacted the funeral home in Innisfil and requested to come on Sunday, although the cremation was scheduled for Saturday. This is followed by allegations that "the funeral home told Defendant #2 that there could be legal conflict" and that when he was told about that, he became vindictive and told the funeral home to go ahead with the cremation on Saturday. The facts pled do not state that she was barred from attending, but rather that her own personal constraints prevented her from attending on the scheduled date.

[42] As stated, I reach the conclusion that there is no viable cause of action contained in this pleading because the plaintiff cannot meet the legal test for negligence. It is doomed to fail.

The Law on a Motion Under Rule 25.11

[43] The court may also strike a pleading on the ground that it is frivolous, vexatious, or is an abuse of process under r. 25.11. The same "plain and obvious" test that is used for striking a pleading for failure to show a reasonable cause of action is used to determine whether a pleading is frivolous or an abuse of process of the court: Del Giudice v. Thompson, 2021 ONSC 5379, 71 E.T.R. (4th) 23, at para. 56, aff'd 2024 ONCA 70, 492 D.L.R. (4th) 363, leave to appeal refused. A claim may be found to be frivolous, vexatious or an abuse of process when it asserts untenable pleas or contains insufficient material facts to support the allegations made: Del Giudice, at para. 57.

Analysis

[44] This Claim is an abuse of process, containing untenable pleas as previously discussed.

[45] A pleading is also an abuse of process if it is launched for a purpose collateral to the relief claimed. I find that both the contents of the Claim and the evidence contained in the plaintiff's affidavit substantiates that this Claim seeks to find vindication for both being excluded from her mother's final days and for not being named as the primary beneficiary under her Will.

[46] This Claim is very clearly motivated by the personal turmoil of the plaintiff, whose own pleading demonstrates that her psychological distress predates her mother's final days. The Claim outlines the prolonged interpersonal discord that existed between mother and daughter. The Plaintiff makes statements such as: "[t]he Plaintiff grew up in an emotionally charged, toxic and physically abusive relationship with her mother."

[47] It is understandable that the plaintiff would experience hurt feelings, sadness, and other such emotional distress from not having final moments with her mother or attending her funeral. But the Claim on its own, with the facts as pled assumed to be true, establishes that the emotional and psychological problems described by the plaintiff arising from her relationship with her mother and other family members are historic, long predating the events surrounding her mother's final year, illness, and death.

[48] Most of the information conveyed is a combination of intentional provocation, an attempt to evoke sympathy, and/or to inflame the defendant, whom the plaintiff clearly intends to aggravate through discussing irrelevant matters such as his sons' alleged drug dependency and the suicide of one son.

[49] Also, reading between the lines, the Claim's purpose and ultimate objective is to attempt to derive some benefit from her mother's estate. This was underscored when Mr. Sanyal advised the court that the plaintiff intends to challenge the Will on the basis of duress, and has filed a notice of objection to that effect.

[50] The plaintiff's affidavit filed in support of her motion underscores the true intent and frivolousness of her Claim. As pointed out, it consists of conjecture and baseless statements such as "[t]he Deceased and the Defendant are supposed to have mirrored wills. The Deceased would have never left anything in the Will to the Defendant's two sons, Wayne Phillips and Michael Phillips (deceased) [sic] whom she had no emotional attachment." She goes on to explain that she wants to see the defendant's will "to clarify any intention of changing his Will and unjustly enriching his son, Wayne Phillips, while cutting out the intentions of the deceased."

[51] Although I have already reached the conclusion the Claim contains no viable cause of action, in the alternative, the Claim is struck under r. 25.11 for its abuse of process.

Motion for Productions and Freezing Order

[52] The defendant's motion also seeks an order that the plaintiff's request in her Notice of Motion for production of hospital and telephone records be dismissed on the grounds that the plaintiff has failed to establish entitlement or relevance. Given that the Claim will be dismissed, there is no requirement to deal with this relief, but this court will do so for the sake of completeness.

[53] The plaintiff's affidavit addresses the reason that she is seeking these documents. Her factum asserts that "access to hospital records and telephone records is necessary to assess whether the Respondent breached these duties and unlawfully restricted the Applicant's contact with the deceased." The duties referenced are the fiduciary duty to act in the grantor's best interests and to avoid conflicts of interest. She also asserts that breach of fiduciary duty may be established if the defendant excluded the plaintiff from medical decisions or estate matters, withheld information, or acted contrary to the deceased's known wishes.

[54] As stated earlier, there is no duty of care that required the defendant to include the plaintiff in any medical decisions or estate matters, or to provide her with information about her mother's health status. If the deceased had wanted the plaintiff to have such information and be involved in decision-making, she could have expressly granted such authority to the plaintiff under a power of attorney for personal care, either solely or together with the defendant. Having made the document in 2016, the deceased had many years to reconsider her decision and act on any change of mind.

[55] The plaintiff also asserts that she requires these documents to show that the defendant was acting contrary to her mother's wishes. The only evidence that the court has of the deceased's wishes has been presented by the defendant.

[56] It is the defendant's evidence that the relationship between the plaintiff and the deceased was strained and distant for several years. His affidavit states that on multiple occasions, the deceased instructed him that she did not want the plaintiff informed about her medical condition, hospitalizations or end-of-life arrangements, meaning her funeral arrangements. The first time that she relayed this was after the plaintiff had a brief call with her mother on September 17, 2024. It is his evidence that the deceased was clear about this instruction and repeated it to him.

[57] The Plaintiff is clearly seeking contradictory information regarding her mother's wishes, which Mr. Sanyal submitted during argument to be the case.

[58] The defendant has also filed a brief affidavit from Kerrylynn Baker, whose complete evidence is:

My name is Kerrylynn Baker my step grandmother Carol Phillips did not want her daughter Sandra McNeill to be called until she passed. She told me no one call her.

[59] The only evidence provided by the plaintiff of her relationship with her mother in latter years is a call record of calls made to the deceased's home. These records start on September 17, 2023 and end on December 11, 2023, which is "when the defendant began to interfere with the mother/daughter relationship." I note this differs from the information in the Claim, which alleges that such interference began in 2017. In any event, the records prove nothing, and the majority of them are recorded as being one minute in length.

[60] The defendant maintains that he followed his wife's express directions when she became incapable of making or communicating treatment decisions. He acted as her attorney for personal care consistent with her written directives and her verbal wishes. After her death, he continued to carry out his duties as estate trustee in accordance with her Will and his legal obligations.

[61] It is to be noted that neither party cross-examined on the affidavits, nor sought an adjournment from this court to allow that to occur.

[62] The Plaintiff seeks the telephone records to "establish the relationship time frames between me and the deceased." Given that the alleged calls were made to her cell phone, it remains unexplained why the Plaintiff could not produce her own records.

[63] In terms of her right to access medical and "estate records", the plaintiff asserts that as a biological child, she has a "reasonable expectation" to access hospital and death records to understand "the care and circumstances of the deceased's final days." This is incorrect; the deceased's medical records remain private and protected. Further, the plaintiff does not benefit under the Will, and accordingly she has no standing to access estate documents through this proceeding.

[64] The plaintiff also seeks the hospital records to establish that only she and the defendant were on the hospital "call list." This assertion is entirely at odds with what has been pled in her Claim, which is that she had to initiate contact with the hospital the day after learning of her mother's death. The plaintiff offers no support to substantiate her speculative statement that she was on the "call list."

[65] The defendant, as the estate trustee and former attorney for personal care, does not waive any solicitor-client privilege that attaches to the deceased's legal and testamentary records, nor does he consent to the release of any hospital or health records. He also does not consent to the release of any telephone records concerning private communications associated with the telephone line used by him and the deceased in their home. And under no circumstances is he willing to produce his own will to the plaintiff, to which she clearly has no legal entitlement.

[66] Even if the Claim was not being dismissed, the Plaintiff's motion would be dismissed. The Plaintiff's motion is a "fishing expedition" to attempt to generate evidence for a cause of action for which she cannot establish a fundamental element – a duty of care.

[67] With respect to the request for a freezing order for the estate, Mr. Sanyal stated during submissions that this relief was not being pursued until the requested documents were obtained. The defendant's affidavit outlines the prejudice that would inure to the deceased's estate if estate assets were to be frozen, as he is attempting to administer the estate. He points out issues such as increased tax, accrual of interest, and lapses of insurance. Again, even if the Claim was not dismissed, the plaintiff could not meet the test required for injunctive relief, as she is unable to satisfy the court on any branch of the test for an injunction.

Amending the Statement of Claim

[68] Although this relief has not been claimed, this court will consider whether leave should be granted to amend the Claim.

[69] While granting leave to amend a pleading is a discretionary remedy, it is recognized that leave is usually denied only in the clearest cases, when it is plain and obvious that no tenable cause of action is possible on the facts as alleged: RH20 North America Inc. v. Bergmann, 2024 ONCA 445, 498 D.L.R. (4th) 413, at para. 25; Mitchell v. Lewis, 2016 ONCA 903, 134 O.R. (3d) 524, at para. 21.

[70] This is such a case - there is simply no tenable claim to make in relation to the events and grievances described by the plaintiff in the Claim.

[71] While the plaintiff has expressed an intention to challenge the Will, the pleading required for that claim would be distinctly different from the one before the court. In other words, there is no way to sensibly recast this pleading, even with extensive editing, to address a challenge to the Will. Nor is there any prejudice to the plaintiff arising from a limitation period in refusing to permit an amendment.

Costs

[72] This Claim was commenced by the plaintiff while she was represented by counsel, although his comments during submissions suggest that it was the plaintiff's drafting. In her Claim, the plaintiff alleges that she is a law clerk and licensed paralegal.

[73] This means that the plaintiff will have an appreciation of the cost consequences to be associated with unmeritorious claims and motions.

[74] The defendant has been wholly successful, both in striking the Claim without leave to amend and having the plaintiff's motion dismissed. The defendant had to incur legal fees in responding to each of the plaintiff's requests. The request to suspend the administration of the estate was a serious matter, as it would have had serious repercussions for the defendant as executor if granted.

[75] The defendant seeks costs in the amount of $15,386.50 inclusive of disbursements and HST, but my review of the Costs Outline indicates that the fees included in this figure are calculated on a full indemnity rate, and there is an addition error. On a full indemnity basis, the amount would be $12,686.50.

[76] There is no basis here for costs on the fully elevated scale. However, there is a basis for substantial indemnity costs, given that the Plaintiff commenced a claim with no possibility of success and for an improper purpose. One of the purposes of a cost award is to discourage the use of the court system for claims that have no chance of success, and that are designed to have an improper purpose.

[77] The matter was complicated by the fact that the plaintiff first unilaterally scheduled her motion for interlocutory relief without consulting the defendant. This led to attendance at triage court to properly schedule these motions. There was also a prior attendance on July 8, 2025, at which costs were awarded against the plaintiff. The endorsement is brief and does not explain the basis for the cost award. That prior attendance, Mr. Zatovkanuk submitted, is not included in his calculation of fees.

[78] The court must take into account the unsuccessful party's reasonable expectation of costs. The plaintiff's counsel has uploaded a Bill of Costs to Case Center as requested by the court. Her Bill of Costs calculates costs on a substantial indemnity scale in the amount of $25,125, and on a partial indemnity basis in the amount of $16,750. These amounts clearly exceed the successful party's requests, and the court concludes that these are the amounts that were within her reasonable expectation to pay if unsuccessful.

[79] Considering the factors set out in r. 57.01(1) and stepping back to consider an amount that is fair and reasonable for the plaintiff to pay in all of the circumstances, this court determines that the defendant will have costs of the proceeding fixed in the amount of $10,783.53.

Order

[80] This court orders:

1. The Statement of Claim is struck, without leave to amend, pursuant to rr. 21.01(1)(b) and 25.11 of the Rules of Civil Procedure.

2. The plaintiff's motion dated September 2, 2025 is dismissed in its entirety.

3. The plaintiff shall pay costs to the defendant fixed in the amount of $10,783.53 and payable within 30 days.

4. The costs award shall accrue post-judgment interest pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43, s. 129.

HEALEY J.

Released: October 10, 2025