Reasons for Decision

Court File No.: CV-16-6640
Date: 2025/01/30
Ontario Superior Court of Justice

Between:
Lloyd Newton and the Estate of Donna Marion, Plaintiffs
– and –
Anishinabek Police Services, Anishinabek Police Services Board, Anishinabek Police Services Chief John Syrette and Chantal Larocque, Defendants

Appearances:
Lloyd Newton, self-represented, for the Plaintiffs
G. Marcuccio, for the Defendants

Heard: December 7, 2023, and April 8, 2024

Released: January 30, 2025

Judge: M.G. Ellies

Overview

[1] The plaintiffs commenced an action in 2016 against the defendants for damages relating to charges brought against them by Chantal Larocque, a member of the Anishinabek Police Services (the “APS”). The charges were laid after the plaintiffs caused the sum of $3,900.00 to be withdrawn from the bank account of Eva Pitt (“Eva”), an elderly woman with respect to whom the plaintiffs had been appointed attorneys under a power of attorney (“POA”) for property. The money had been withdrawn to pay for renovations to a home formerly owned by Eva, but which the plaintiffs had Eva transfer into the name of Donna Marion at the time of the withdrawal.

[2] The charges were eventually withdrawn after the plaintiffs repaid the sum of $3,900.00 to Eva.

[3] In the action, the plaintiffs claim $12 Million in damages for a host of alleged improprieties, only one of which, negligent investigation, falls neatly into any recognized tort.

[4] The defendants move for summary judgment under r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), dismissing all of the plaintiffs’ claims on the basis that there is no genuine issue requiring a trial. In the alternative, the defendants move for dismissal under r. 24 on the basis that the plaintiffs have failed to set the action down for trial within six months of its commencement.

[5] For the following reasons, the motion is allowed, and the plaintiffs’ claims are dismissed.

Procedural History

[6] The defendants’ motion was originally heard on December 7, 2023. Mr. Newton attended court that day together with at least seven people whom he intended to call as witnesses. Because he had not sought leave to call such evidence under r. 39.03, I did not hear from any of them.

[7] Originally, the defendants sought three alternative forms of relief. In addition to seeking the dismissal of the plaintiffs’ claims for delay and because no trial was necessary, they also sought to have the plaintiffs’ claims dismissed as being out of time under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. However, it was agreed at the hearing that, because Mr. Newton had earlier commenced a Small Claims Court proceeding in which he claimed the same or similar relief and because the defendants had agreed to allow that proceeding to be discontinued in favour of the Superior Court action, the defendants would abandon the limitations argument.

[8] In response to the motion, Mr. Newton, who represents himself both personally and as the trustee for Ms. Marion’s estate, had filed materials that I found very difficult to follow. As a result, during the hearing on December 7, I spent the entire time discerning the nature of the plaintiffs’ claims and distilling a set of salient background facts, most of which were agreed upon.

[9] Exactly as they are listed in para. 7 of the statement of claim, the plaintiffs’ claims include:

• negligent investigation
• giving false information to the courts in [a] case synopsis
• breach of privacy
• withholding evidence from the court
• giving false and misleading evidence
• misrepresentation of O.P.G.T. [Ontario Public Guardian and Trustee]
• conspiracy to commit fraudulent documents
• violating 16.1 of the Substitution Act [the Substitute Decisions Act, 1992, S.O. 1992, c. 30]
• elder abuse violating a known senior and mental health person access to their Continuing POA
• fraudulently changing ownership of a property at 148 Christine Lane [the home formerly owned by Eva]
• break and entering without a court order at 148 Christine Lane
• denying to native burial grounds
• denying access to personal property
• conduct unbecoming of a police officer
• fraudulently trying to seize a property at 148 Christine Lane as a police officer with no court orders
• manipulating witness statements
• deeming a continuing POA nil and void and not worth the paper it is written on without an authority or a court order
• abuse of power
• causing unnecessary stress by making up lies which resulted in a very painful death of Donna Marion

[10] Notwithstanding the number and variety of the plaintiffs’ claims, they fall into two general groups. One group relates to what I called “interference with Mrs. Pitt’s wishes” at the hearing of the motion on December 7, 2023. For reasons which I summarized briefly that day and undertook to deliver in writing later, I granted the defendants’ motion for summary judgment as it relates to those claims, which I will simply call the “interference claims” in these reasons.

[11] The other group of claims relate to what are, in essence, allegations of malicious prosecution and negligent investigation, which I will refer to in these reasons as the “criminal justice claims”. On December 7, I directed Mr. Newton to file new and better responding materials regarding those claims, provided him with some guidance on what those new materials should be, and adjourned the balance of the motion to a date to be set through the office of the trial coordinator.

[12] Mr. Newton did file new materials, and the motion resumed on April 8, 2024. At the conclusion of the hearing on that day, I reserved my decision on the criminal justice claims. Unfortunately, the delivery of my reasons relating to both groups of claims has been significantly delayed, for which I wish to apologize to the parties.

Motion Materials

[13] Regrettably, Mr. Newton’s new filings still fell short of what I had hoped they would be. Rather than filing his own affidavit, Mr. Newton has filed what appears to be affidavits sworn by other individuals in connection with what I infer from the dates of the affidavits were other, earlier proceedings relating to Eva. In some instances, Mr. Newton has filed unsworn letters or statements from individuals. In other instances, he has simply filed copies of documents with no sworn evidence explaining them. In addition, Mr. Newton has filed what appear to be excerpts from transcripts of conversations, some of which the police appear to have recorded, others of which Mr. Newton appears to have recorded, and none of which have been certified by a qualified transcriptionist.

[14] I have carefully reviewed all of these documents, which consist of two printed volumes, comprised of 32 tabs, no table of contents, and an unknown number of pages. Fortunately, Mr. Newton has explained the relevance of many of the documents in his 31-page “factum”. Some, however, remain a bit of a mystery.

[15] The salient background facts that follow have been gleaned from the defendants’ motion record, the work I did on December 7, 2023, and from the material filed afterwards by Mr. Newton. Most of the facts are agreed upon. Where they are not, I will indicate the source. Where the contested facts are crucial, I will rely only on sworn evidence to make a finding.

Background Facts

[16] As I mentioned earlier, the issues arising in this motion and the action within which it has been brought relate to Eva, a member of the Nipissing First Nation (“NFN”), who was born in 1927. [2]

[17] Eva and her husband, Mark, raised two nephews of Eva’s, Stanley and James, whose mother, Violet Marion, was unable to care for them. Eventually, Stanley and James changed their surnames to “Pitt”. At all materials times, Stanley was married to Odette Pitt and they resided outside of the North Bay area.

[18] The plaintiff, Donna Marion, was Stanley and James’ sister. Although she was not raised by Eva and Mark, it is not disputed that she was close to both of them. Mr. Newton is Ms. Marion’s common-law partner. Ms. Marion passed away on May 19, 2015.

[19] This action was commenced after Ms. Marion’s death, in November 2016. In the action, the “Estate of Donna Marion” is named as a plaintiff. However, no estate trustee had been appointed for Ms. Marion at the time the action was commenced. Although Mr. Newton was named as an executor in Ms. Marion’s will, he was not approved of as such by Aboriginal Affairs and Northern Development Canada (“Aboriginal Affairs”) until February 16, 2018.

[20] Under r. 9 of the Rules, Mr. Newton should be named as a plaintiff both in his personal capacity and as the trustee or executor for the estate of Donna Marion. However, the defendants have not raised this procedural issue and, given my disposition of this motion, it is not necessary to concern myself with it. In these reasons, I will continue to treat the claims of Mr. Newton and Ms. Marion separately, and will refer to them as the “plaintiffs”.

[21] Eva passed away on February 7, 2022. That is where the story ends. It begins twelve years earlier, in 2010.

[22] In January 2010, the plaintiffs became attorneys under a POA for personal care granted by Mark Pitt. They continued to be his attorneys for personal care at the time he died on October 24, 2011.

[23] Stanley and Odette Pitt returned to the North Bay area for Mark’s funeral. In the statement of claim, Mr. Newton alleges that the plaintiffs gave Stanley and Odette a copy of the POAs under which the plaintiffs had been named attorneys for both Eva and Mark. However, as the statement of claim and Mr. Newton’s factum both state, the plaintiffs were not named as attorneys for Eva under a POA until April 5, 2012, approximately six months after Mark’s death. I believe that Mr. Newton intended to refer in the statement of claim to Eva's will, rather than her POA. Even that, though, is problematic because Eva also drew up a new will on April 5, 2012, and I have not been provided with a copy of any will in which Ms. Marion was named as the sole beneficiary before that date.

[24] Nonetheless, according to the statement of claim, when Stanley and Odette learned that Eva had left everything to Ms. Marion, they caused Eva to sign a new POA and a will in favour of Odette on October 27, 2011. Mr. Newton alleges that Odette then transferred Eva’s money into another account. This is disputed by the defendants, but it is not material.

[25] The parties agree that Eva executed new POAs for both personal care and property and a new will on April 5, 2012. The POAs named both Mr. Newton and Ms. Marion as attorneys. The will left all of Eva’s estate, including a house on NFN land located at 148 Christine Lane, to Ms. Marion. Ms. Marion was also named trustee under the will.

[26] In the summer of 2012, Stanley Pitt came up to this area to live with Eva. Based on an affidavit from Mr. Pitt included in Mr. Newton’s materials, he remained here until about February 2013. While he was here, Mr. Pitt arranged to have certain expenses associated with Eva's home discontinued. I have not been told what those were.

[27] On February 22, 2013, the NFN announced to its members that they would each be receiving the sum of $20,000.00 as part of a settlement with the government of what appears to have been a land boundary claim. [3] A few days later, on February 26, 2013, Stanley and Odette applied to have Eva admitted to an Indigenous nursing home not far from them in the Cornwall area.

[28] On March 2, 2013, while the issue of her admission to the nursing home was still outstanding, Eva was picked up by the APS after she had wandered away from her home. According to the sworn affidavit evidence of Officer Larocque, the APS had responded to about a dozen calls for service at Eva’s home by that time, raising concerns on the part of the APS that she was suffering from dementia. As a result, when Eva was picked up in early March, she was placed by the APS at the West Nipissing General Hospital (the “WNGH”).

[29] While Eva was at the WNGH, Mr. Newton called the APS to report the behaviour of Stanley and Odette Pitt as it related to Eva. According to Mr. Newton’s materials, he asked Officer Larocque to confirm with Eva that she wished to remain in the North Bay area. Two days later, Officer Larocque called Mr. Newton and told him that Eva wanted to go to Cornwall.

[30] Mr. Newton alleges that, on March 11, 2013, the plaintiffs provided Jennifer Leclair, a Discharge Planner at the WNGH, with copies of the April 2012 POAs in their favour and told her that they did not want Eva moved from the North Bay area.

[31] According to a letter from the nursing home, notwithstanding the plaintiffs’ instructions, Eva was moved into the home on or about March 12, 2013.

[32] Mr. Newton did not accept this. Instead, as I understand Mr. Newton’s materials, he called Eva and recorded a conversation with her in which she said she did not want to be in the Cornwall area and that she preferred, instead, to remain in the North Bay area. Thus, on March 29, 2013, Mr. Newton drove to Cornwall and, without consulting Stanley or Odette Pitt, removed Eva from the nursing home and brought her to live with the plaintiffs.

[33] On April 2, 2013, the plaintiffs had Eva sign over her house at Christine Lane to Ms. Marion for the sum of $2.00. Various affidavits sworn by other individuals and filed by Mr. Newton indicate that Eva wanted the home to be put in Ms. Marion’s name so that it would stay in the family. Sometime after the transfer of the home, Mr. Newton and Ms. Marion arranged to reinstate whatever services or other expenses relating to the Christine Lane property cancelled earlier by Stanley Pitt.

[34] In early September 2013, Mr. Newton had Eva sign a bank draft payable to his order in the amount of $3,900.00. Mr. Newton and Ms. Marion claim that this money was to pay for repairs and renovations to the Christine Lane property which, as I have mentioned, no longer belonged to Eva at the time that the bank draft was drawn up. According to Mr. Newton and many of the witnesses whose statements are contained in Mr. Newton's materials, this was all part of a plan whereby Eva would be able to remain in her home in the company of two nieces who planned to move to the North Bay area from western Canada.

[35] On September 6, 2013, Officer Larocque took Eva for a drive so that she could speak to her alone. Following that conversation, Officer Larocque again placed Eva at the WNGH.

[36] On September 11, 2013, the APS posted a notice (it is not clear where) indicating that they were investigating an allegation of “elder abuse” with respect to Eva and that the plaintiffs should not be permitted to visit her.

[37] On September 19, 2013, allegedly at the request of Officer Larocque, Sherry Howard, a qualified assessor under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”) determined that Eva was capable of giving and revoking POAs for both personal care and property.

[38] Ms. Howard met again with Eva on September 20, 2013, this time to assess her capacity to manage property under s. 16(1) of the SDA. On October 1, 2013, Ms. Howard completed a Certificate of Incapacity, certifying that Eva was incapable of doing so.

[39] According to a document included in Mr. Newton’s materials dated September 30, 2013, and witnessed by Jennifer Leclair and one other individual, the same day that Ms. Howard assessed Eva’s capacity to manage property, she revoked her POA “for Finances” in which she had named Mr. Newton and Ms. Marion. As a result of the revocation, Aboriginal Affairs assumed the management of Eva’s property.

[40] Again, Mr. Newton did not accept this. On October 12 and 13, 2013, he videotaped Eva responding affirmatively to questions put to her by him about whether she still wanted Mr. Newton and Ms. Marion to be her attorneys.

[41] On November 6, 2013, Mr. Newton commenced an action against Aboriginal Affairs. I do not know what the action was about because Mr. Newton has not provided me with anything other than the first page of the statement of claim, in which he is named as the plaintiff and Aboriginal Affairs is named as the defendant.

[42] On or about November 7, 2013, Mr. Newton and Ms. Marion were charged by Officer Larocque with Theft Under $5,000 relating to the $3,900.00 bank draft referred to earlier. Mr. Newton alleges that the charges were laid in retaliation for the lawsuit he started against Aboriginal Affairs. However, his materials contain an unsigned Promise to Appear relating to Ms. Marion that is dated November 6, 2013, i.e., the same day the action was commenced against Aboriginal Affairs. Mr. Newton asks me to infer that Officer Larocque falsified the date of this document, but I have no evidence to support that inference. I have not located any copy of the Information in Mr. Newton's materials. In the absence of any such evidence, I infer that the Promise to Appear was drafted on November 6, but that Ms. Marion was not charged until the next day. This is a common occurrence.

[43] Although Ms. Marion was content to be released on the Promise to Appear, Mr. Newton refused to follow suit. Instead, he remained in custody following his arrest until he was released by a Justice of the Peace.

[44] According to a letter dated September 8, 2014, from Ms. Howard to Corinne Guenette of the WNGH, Eva signed a new POA for personal care on December 16, 2013, in favour of Anna McLeod, who was a friend of Eva’s.

[45] On August 7, 2014, the charges against Mr. Newton and Ms. Marion were withdrawn at the request of the Crown. The transcript of the court appearance of that date indicates that the Crown and the plaintiffs agreed to a “diversion” by virtue of which the plaintiffs agreed to make restitution to Eva, which they did by way of a certified cheque, and the Crown agreed to withdraw the charges. There is no dispute that such an agreement was reached or that it was fulfilled.

[46] On August 29, 2014, Eva signed yet another POA for personal care. In this one, she revoked any earlier POA for personal care and again named Mr. Newton and Ms. Marion as attorneys. The document was witnessed by Violet Marion, Ms. Marion’s sister, and by James Pitt, Stanley’s brother.

[47] At the request of Ms. Guenette from the WNGH, Ms. Howard again met with Eva on September 5, 2014, at the hospital. In a letter dated September 8, 2014, Ms. Howard advised Ms. Guenette that, unlike the result of the assessment she had performed roughly a year earlier, she found Eva to be incapable of giving or revoking a POA on the day of their meeting.

[48] As I mentioned earlier, Ms. Marion passed away on May 19, 2015.

[49] On June 14, 2015, the APS took steps to secure the Christine Lane property, which appears to have included locking the premises and posting a notice asking anyone who has been appointed executor to contact them.

[50] As I have already mentioned, in her will, Ms. Marion named Mr. Newton as executor and trustee. However, it was not until February 16, 2018, that he was granted probate by Aboriginal Affairs.

[51] Because he is not a band member, Mr. Newton could not own the land of which Ms. Marion died possessed. Thus, on April 17, 2018, Mr. Newton conveyed the Christine Lane property into the name of Ms. Marion’s brother, Robert Marion, where it remained at the time of Eva’s death on February 7, 2022.

Issues

[52] There are two main issues to be decided:

1. Should the plaintiffs’ claims be dismissed under r. 20 because they do not raise any genuine issue requiring a trial?
2. If not, should the plaintiffs’ claims be dismissed under r. 24 for delay?

Analysis

Should the plaintiffs’ claims be dismissed under r. 20?

[53] The applicable parts of r. 20 read:

20.01 (3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.

20.02 (2) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.

20.04 (2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence…

(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[54] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada held that amendments made to r. 20 in 2010 heralded a new approach in which trials are no longer required for all but the most obviously unmeritorious claims. The court called for a "culture shift" towards a more proportionate, more expeditious, and less expensive dispute resolution process.

[55] Rule 20 is mandatory. Where a judge concludes that there is no genuine issue requiring a trial, he or she must make the appropriate final order. In Hryniak, the Supreme Court explained, at para. 49:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[56] A party seeking to avoid summary judgment is required to "play trump or risk losing": Reid v. Livingstone, [2004] O.J. No. 1477 (S.C.), at para. 11; Byfield v. Toronto Dominion Bank, 2012 ONCA 49, at para. 10. Each party in a summary judgment motion "must put its best foot forward", and "the court is entitled to assume that the record contains all the evidence the parties would present at trial": Toronto-Dominion Bank v. Hylton, 2012 ONCA 614, at para. 5.

[57] With this legal backdrop in place, I turn to the two groups of claims being made by the plaintiffs. I will deal first with the interference claims.

The Interference Claims

[58] I begin my discussion of these claims by pointing out what they are not.

[59] These claims are not Eva's claims. They have not been brought on Eva's behalf. She has not been named as a plaintiff in the action. Nor have either Mr. Newton or Ms. Marion been named as litigation guardians for Eva, as they might have been had they commenced this action on her behalf as attorneys under a POA. Nowhere in the statement of claim is Eva mentioned as a claimant. Instead, the interference claims are being made solely on behalf of Mr. Newton and Ms. Marion.

[60] As a group, the interference claims against the defendants are based on the following factual allegations against Officer Larocque:

• that she improperly placed Eva in the WNGH prior to her being placed at the nursing home in the Cornwall area
• that she improperly placed Eva in the WNGH after she had been returned to this area by Mr. Newton
• that she conspired to ignore the POAs naming the plaintiffs as attorneys and move Eva out of the North Bay area
• that she improperly had Eva’s capacity assessed by Sherry Howard
• that she provided false documents to Ms. Howard
• that she improperly had Eva sign a document revoking the POA “for finances” on October 1, 2013
• that she directed Karen Rivard of Aboriginal Affairs to appoint Stanley and Odette Pitt as Eva's POAs for personal care
• that she improperly secured the Christine Lane property, thereby interfering with the plaintiffs’ efforts to maintain and repair the property
• that she accelerated Ms. Marion’s death from lung cancer

[61] In addition to these factual allegations, there is an allegation of “denying to native burial grounds”. I am unclear as to what this refers, and I am unable to find any clear reference to this in the motion materials filed by Mr. Newton. As a result, it cannot be said that this claim raises a genuine issue for trial.

[62] I will deal briefly with the other allegations referred to above.

Placing Eva in the WNGH

[63] Had this claim been brought by Eva, it is possible that it might have survived a summary judgment motion as being a claim for wrongful imprisonment or some other intentional tort. Even if that had been the case, however, neither Mr. Newton nor Ms. Marion could have made any claim for damages on their own behalf as a result.

[64] Section 61(1) of the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”), permits certain family members to sue on their own behalf for harm done to another family member. The section reads as follows:

If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.

[65] Section 61(2) of the FLA specifies the type of damages that may be recovered under s. 65(1). Under s. 61(2)(e), these include “an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred.”

[66] It is obvious that s. 61(1) limits the type of wrong for which a family member can sue to injury or death. Assuming, without deciding, that Mr. Newton could prove that Eva was “injured” by being placed at the WNGH, it is also obvious that s. 61(1) only permits claims by the spouse, children, grandchildren, parents, grandparents, brothers and sisters of the injured party. Ms. Marion was Eva’s niece. Mr. Newton was only Ms. Marion’s common-law spouse. He is entirely unrelated to Eva. As such, neither one of the plaintiffs can claim for any injury done to Eva under s. 61 of the Family Law Act.

[67] I am not aware of, and Mr. Newton has not brought to my attention, any other statutory provision or caselaw that would allow the plaintiffs to sue for the wrongs allegedly committed against Eva in this case.

[68] For this reason, all of the claims involving Eva fail to raise a genuine issue for trial. Nonetheless, I will briefly review the remaining allegations to demonstrate that, even if the plaintiffs had a valid cause of action in law, the materials filed in response to the summary judgment motion fail to raise a genuine issue requiring a trial.

Conspiring to ignore the POAs naming the plaintiffs as attorneys

[69] Mr. Newton alleges that Officer Larocque ignored the POAs in favour of the plaintiffs and, instead, called Stanley and Odette Pitt to come and take Eva out of the North Bay area. He also alleges that Officer Larocque misrepresented to the Cornwall nursing home that Stanley and Odette had current POAs at the time that Eva was admitted in March 2013.

[70] In support of this allegation, Mr. Newton relies on a printout of an article written by a lawyer entitled “Discharge from Hospital to Long-term Care: Issues in Ontario”, apparently downloaded from the Internet. He also relies on a copy of an email from the nursing home saying that the plaintiffs had produced more current POAs when they came to remove Eva from the home at the end of March 2013.

[71] This is not sufficient to raise a genuine issue for trial regarding this allegation, even if it was actionable by the plaintiffs. The article is not evidence. On the basis of what I do accept as evidence, it was Stanley and/or Odette Pitt that moved Eva and, therefore, it was likely Stanley and/or Odette that provided the outdated POA.

Having Eva’s capacity assessed

[72] As noted earlier in these reasons, the statement of claim mistakenly refers to the “Substitution Act”, rather than the SDA. It also refers incorrectly to s. 16.1 of the SDA. Even in the version of the SDA that was in effect at the time Eva was assessed, s. 16.1 applied to the termination of a statutory guardianship. Neither Mr. Newton nor Ms. Marion were statutory guardians for Eva. They were attorneys under a POA. Therefore, as Ms. Howard made clear in her letters of September 21, 2013, and September 8, 2014, she had assessed Eva’s capacity to grant a POA under s. 47 of the SDA and her capacity to manage property under s. 16 of that Act. Neither assessment was conducted under s. 16.1.

[73] Mr. Newton submits that Ms. Howard was prevented from conducting any assessments of Eva’s capacity even under s. 16(1) of the SDA. He relies on s. 16(2) of the statute. These sections provide:

16 (1) A person may request an assessor to perform an assessment of another person’s capacity or of the person’s own capacity for the purpose of determining whether the Public Guardian and Trustee should become the statutory guardian of property under this section.

(2) No assessment shall be performed unless the request is in the prescribed form and, if the request is made in respect of another person, the request states that,

(a) the person requesting the assessment has reason to believe that the other person may be incapable of managing property;

(b) the person requesting the assessment has made reasonable inquiries and has no knowledge of the existence of any attorney under a continuing power of attorney that gives the attorney authority over all of the other person’s property; and

(c) the person requesting the assessment has made reasonable inquiries and has no knowledge of any spouse, partner or relative of the other person who intends to make an application under section 22 for the appointment of a guardian of property for the other person.

[74] Mr. Newton submits that Ms. Howard was not permitted to assess Eva because she knew that Eva had already given a POA. This submission is not correct.

[75] Section 16(2) of the SDA applies only to assessments requested “in respect of another person”. Under s. 16 of the SDA, Eva could consent to having an assessment of her own capacity being undertaken, even though she had given a POA to Ms. Marion and Mr. Newton in April 2012. The letter from Sherry Howard dated September 21, 2013, states that Eva consented to the assessment conducted on September 19, 2013. I have no evidence to the contrary. Therefore, on the evidence before me, Ms. Howard was not precluded by s. 16(2) from performing an assessment of Eva.

[76] In his submissions on December 7, 2013, Mr. Newton also argued that the assessments performed by Ms. Howard on September 19 and 20, 2013, tested the same capacity and that, therefore, when Ms. Howard found Eva had capacity to make or revoke a POA on September 19, 2013, it meant that Eva also had capacity to manage her property. That is also not correct.

[77] As Ms. Howard pointed out in her letter of September 21, 2013, to Jennifer Leclair at WNGH, the threshold capacity to give or revoke a POA is much lower than the threshold for capacity to manage property under s. 8(1) of the SDA. Under s. 8(1) of the SDA, a person is capable of giving a POA for property if he or she:

• knows what kind of property he or she has and its approximate value;
• is aware of obligations owed to his or her dependants;
• knows that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney;
• knows that the attorney must account for his or her dealings with the person’s property;
• knows that he or she may, if capable, revoke the continuing power of attorney;
• appreciates that unless the attorney manages the property prudently its value may decline; and
• appreciates the possibility that the attorney could misuse the authority given to him or her.

[78] Under s. 6 of the SDA, to be capable of managing property, a person must be able to understand information that is relevant to making a decision in the management of her property and to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[79] These are two very different tests.

[80] In any event, like the claim relating to placing Eva at WNGH, Mr. Newton has not demonstrated that either he or Ms. Marion are entitled in law to make any claims for damages relating to the assessment of Eva’s capacity in any sphere.

Providing false documents to Sherry Howard

[81] Mr. Newton alleges that Officer Larocque altered the date of the POAs she provided to Sherry Howard by changing the date of the POA in which the plaintiffs were named as attorneys from April 5, 2012, to 2013.

[82] In support of this allegation, Mr. Newton relies on two documents. The first is a copy of a fax cover sheet dated September 19, 2013, from Officer Larocque to Jennifer Leclair. In the subject line of the cover page, the words “Power of Attorney Docs” are written. The second is the letter of Ms. Howard dated September 21, 2013, in which she wrote that she showed Eva two POAs, the one she signed in October 2011 naming Odette Pitt as her attorney and the one “she signed in April 2013 appointing her niece, Donna Marion and her husband Lloyd Newton.” Mr. Newton submits that these two documents show that Officer Larocque provided Ms. Howard with a false POA. I do not accept that submission.

[83] It is far more likely that Ms. Howard made a mistake or that there is a typographical error than it is that Officer Larocque falsified the date of the April 2012 POA. Falsifying the date would only have served to make the 2012 POA more current as of September 2013, not less. That would only have helped the plaintiffs, which does not fit with the rest of Mr. Newton's claims against Officer Larocque. If Officer Larocque wanted to falsify the 2012 POA to harm the plaintiffs, it would have been better to change the date to a date before the 2011 POA naming Odette Pitt as attorney. That would have made the 2011 POA the most recent one, thereby making Odette Pitt the most recently-named attorney.

Having Eva sign a document revoking the POA “for finances”

[84] As I mentioned earlier, on October 1, 2013, the day after Ms. Howard determined that Eva was capable of revoking a POA, Eva signed a document revoking her POA “for finances”. Mr. Newton argues that this was not sufficient to revoke the April 5, 2012, POAs for property in favour of the plaintiffs. I do not accept that argument.

[85] Mr. Newton submits that Officer Larocque was responsible for having Eva sign this document. Again, I am unable to find any evidence of this. There is no sworn or other evidence in the materials filed by Mr. Newton, other than opinion, to support the submission that the defendants were responsible for having Eva sign the document in question. Even if there was, this is yet another example of an alleged wrongdoing for which neither Mr. Newton nor Ms. Marion are entitled to sue.

[86] Mr. Newton also contends that this document did not operate to revoke the POA for property that Eva signed in April 2012 in favour of the plaintiffs. Again, I am unable to agree. As s. 7.1 of the SDA makes clear, there is no prescribed form for a POA for property. Nor is there any form prescribed to revoke a POA for property, as alleged by Mr. Newton.

[87] It is true that the document in question refers to a POA for finances, which does not exist under the SDA. However, there are only two possible POAs, one for property and one for personal care. It is highly unlikely that the form signed by Eva intended to refer to Eva’s POA for personal care. Finances have nothing to do with personal care. However, they have a lot to do with property.

Directing Karen Rivard of Aboriginal Affairs

[88] Mr. Newton alleges that Officer Larocque was “directing” Karen Rivard “to appoint Stanley and Odette Pitt as Eva's POAs for personal care.” In support of this allegation, he relies on police notes. However, the notes are not where they are supposed to be in Mr. Newton's materials. I did find police notes elsewhere in Mr. Newton's materials, but they are mostly illegible.

[89] Mr. Newton has also included a copy of an affidavit sworn on February 17, 2017, by Ms. Rivard, apparently in connection with an application brought by Stanley and Odette Pitt against Mr. Newton, Eva, and others. The affidavit does not assist Mr. Newton. In it, Ms. Rivard deposes that she supports Stanley and Odette Pitt being appointed attorneys for Eva because she can work with them, but she cannot work with Mr. Newton.

[90] This evidence undermines, rather than supports, Mr. Newton's allegation. It certainly does not raise a genuine issue requiring a trial.

Securing the Christine Lane property

[91] Mr. Newton alleges, and I accept, that the APS changed the locks on the Christine Lane property without having a key to open the existing ones and posted a notice that the property had been secured by the APS, following which no one was given access for a period of time.

[92] This claim is different than the other interference claims to which I have already referred. The other claims were for wrongs allegedly done to Eva. This claim, however, is one for harm allegedly done to Ms. Marion. She was the owner of the Christine Lane property at the time of the alleged wrongdoing by the APS. As such, Mr. Newton would be entitled to maintain an action on behalf of Ms. Marion as her trustee, assuming he had authority to act. Nonetheless, as I will explain, even if Mr. Newton was entitled to advance this claim on behalf of Ms. Marion, it does not raise a genuine issue requiring a trial.

[93] Mr. Newton asserts in his factum that what was done by the APS is not normally done after the death of a member of the NFN. However, I cannot find any evidence in Mr. Newton's materials in support of this submission. Mr. Newton refers in his factum to a “recording of them”, but I have no idea what that might be or where to find it.

[94] At the time the APS acted to secure the Christine Lane property, Ms. Marion was deceased. According to the affidavit of Chantal Larocque, and the copy of the notice contained in Mr. Newton’s materials, the APS was not aware of the identity of Ms. Marion’s executor at the time that it acted to secure the property. Even if I was persuaded by Mr. Newton’s materials that the APS did know the identity of Ms. Marion’s executor at the time, there is no denying that Mr. Newton had not yet been granted probate by Aboriginal Affairs. That did not occur until more than two years later, in February 2018. Within three months of that, Mr. Newton transferred the home to Robert Marion, Donna Marion's brother, for the sum of $2.00.

[95] There is no evidence that Donna Marion's estate suffered any damages as a result of the fact that the Christine Lane home was secured. Mr. Newton provided photos showing the home in a state of disrepair and submits that the cost of repairs is in the neighbourhood of $80,000. However, there is no evidence that Ms. Marion or her estate bore any of those costs. Nor is there any evidence that the home was transferred to Robert Marion for less than it would otherwise have been transferred, if not for the damage it allegedly suffered. Therefore, if such damages were suffered, they were suffered by Robert Marion, who is not a party to this action.

[96] In these circumstances I am not persuaded that there is any genuine issue requiring a trial of this claim.

Accelerating Ms. Marion’s death

[97] The final claim forming part of the group of interference claims is also personal to Ms. Marion.

[98] In the statement of claim, the plaintiffs assert that the wrongful actions of the APS accelerated Ms. Marion’s death from lung cancer due to the stress it caused her. If this was proven, Mr. Newton could recover damages under s. 61 of the FLA, as discussed earlier. However, it cannot be proven based on the materials filed in response to the motion.

[99] When Mr. Newton was asked on December 7, 2013, what evidence he relied upon in support of this claim, he said that he relied on a “doctor’s note” that Ms. Marion had been “in there” on stress (which I assume means in the hospital) and on some articles he obtained from the Internet. However, this is not enough. As the defendants submit, expert medical evidence is required to make the connection between Ms. Marion's death and the acts of the APS (assuming, without deciding, that they were wrong). There is no such evidence. Without this evidence, the claim for accelerating Ms. Marion’s death cannot succeed.

[100] Like the other interference claims, therefore, this claim gives rise to no genuine issue requiring a trial.

[101] I turn now to the criminal justice claims.

The Criminal Justice Claims

[102] As discussed, these claims include both the malicious prosecution and the negligent investigation claims. The negligent investigation claim is referred to specifically in the statement of claim. The malicious prosecution claim subsumes the claims of:

• giving false information to the courts in [a] case synopsis
• withholding evidence from the court
• giving false and misleading evidence
• conduct unbecoming a police officer
• manipulating witness statements
• abuse of power

[103] As I will explain, all of these claims must be dismissed because Mr. Newton cannot prove an essential element of the torts of negligent investigation and malicious prosecution. In the discussion that follows, I rely heavily on the work done by my colleague, Justice Kenneth Campbell, in Romanic v. Johnson, 2012 ONSC 3449, aff’d 2013 ONCA 23, and cases that followed it.

[104] To succeed in a claim for negligent investigation, the plaintiffs must prove four essential elements: (a) that the proceedings were initiated by the defendants; (b) that the proceedings were terminated in favour of the plaintiffs; (c) that there were no reasonable and probable grounds to commence or continue the proceedings; and (d) that the defendants failed to meet the objective standard of a reasonable police officer in similar circumstances: H.A. v. S.M., 2021 ONSC 3170, at para. 15.

[105] The requirements for a successful claim of malicious prosecution are identical with respect to the first three elements. To succeed, the plaintiffs must prove: (a) that the prosecution was initiated by the defendants; (b) that the prosecution was terminated in the plaintiffs’ favour; (c) that there were no reasonable and probable grounds to commence or continue the prosecution; and (d) that the defendant’s conduct was motivated by malice: H.A. v. S.M., at para. 16.

[106] The plaintiffs cannot establish that the criminal charges against them were terminated in their favour. As I have mentioned, the fraud charges in this case were withdrawn as part of an agreement between the Crown and the plaintiffs to make restitution to Eva. After reviewing the jurisprudence in this area of the law, Campbell J. wrote in Romanic, at para. 30:

For many years the courts have made it clear that, where criminal charges against an accused are resolved by way of withdrawal after the accused has made restitution to the alleged victims of the alleged offences, such a disposition is not one favourable to the accused for purposes of permitting the accused to subsequently launch an action for malicious prosecution against the Crown and/or the police.

[107] However, the mere existence of some arrangement or compromise by the parties that ended the criminal proceedings is not the end of the analysis. The court must go on to examine the underlying reasons for the settlement: Romanic, at para. 42.

[108] There is no evidence that the diversion agreed upon between the Crown and the plaintiffs was anything other than a fair compromise. There is no evidence, for example, that the Crown agreed to withdraw the charges to avoid this action or to avoid court scrutiny over the investigation. Based on the evidence I do have, it appears that there was a reasonable prospect of conviction. Therefore, I conclude that the criminal proceedings did not end favourably for the plaintiffs: Mammoliti v. Niagara Regional Police Service, 2007 ONCA 79, at para. 56.

[109] For this reason alone, the negligent investigation and malicious prosecution claims cannot succeed. Therefore, they raise no genuine issue for trial.

[110] With respect to the negligent investigation claim, I would add that an expert report on the standard of care of a reasonable police officer in the circumstances is usually required: 495793 Ontario Ltd. v. Barclay, 2016 ONCA 656, 132 O.R. (3d) 241, at para. 53. Mr. Newton has provided no such evidence in his motion materials. He refers in his factum to a discussion he had with a North Bay Police Service (the “NBPS”) constable about Officer Larocque's actions. However, this is not sufficient for a number of reasons, including that there is no sworn evidence from the NBPS officer and no evidence of her expertise.

Should the Plaintiffs’ claims be dismissed under r. 24?

[111] Given the result of my analysis under r. 20, I need not consider this issue.

Conclusion

[112] I understand Mr. Newton’s sense of anger and frustration regarding the actions of Officer Larocque and the APS relating to Eva Pitt. He believes that they interfered with Eva's relationship with the plaintiffs. His feelings are evident in the statement of claim and were also evident during the hearing of the motion. They also appear to be shared by many of the individuals who were prepared to testify and whose evidence is contained in the materials filed by Mr. Newton. However, the law does not recognize anger and frustration alone as causes of action. These feelings can only be compensated for as damages within otherwise viable legal claims.

[113] Summary judgment motions are designed to weed out the viable claims from those that are not. As I have explained, in response to the summary judgment motion, the plaintiffs were obliged to put their best foot forward and to demonstrate that there is a genuine issue for trial with respect to each and every claim they make. For the reasons expressed above, even with the generous allowances I have made in relation to Mr. Newton’s motion materials, the plaintiffs have not done that here.

[114] Therefore, the defendants’ motion must be allowed, and the plaintiffs’ claims must be dismissed.

Costs

[115] Ordinarily, “costs follow the event”, meaning that the successful parties are awarded their costs. However, that is not always the case.

[116] Under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, the costs of a proceeding are in the discretion of the judge hearing the proceeding. For the reasons expressed above, I find that the plaintiffs have failed to raise any genuine issues requiring a trial. However, they have raised an issue, nonetheless.

[117] It is true that the plaintiffs have failed to produce an expert report regarding Officer Larocque's conduct in this case. However, I need no expert evidence to observe that Officer Larocque became involved in the affairs of the alleged victim, Eva, to an extent that I have not seen in 39 years of trying criminal cases. It is no wonder that the defendants were sued. Had this action been properly constituted, had the proper claims been made, and had the response to the summary judgment motion been better, the result of the motion might very well have been different.

[118] In these circumstances, I am not inclined to order that any costs be paid. However, if the parties wish to make submissions on the issue, they may be made in writing, limited to five typewritten pages, exclusive of attachments, as follows:

1. by the defendants, within 30 days of the release of these reasons,
2. by the plaintiffs, within 60 days of the release of these reasons, and
3. any reply, if necessary, by the defendants, within 90 days of the release of these reasons.

M.G. Ellies
Released: January 30, 2025

Notes

[1] The name of the police service is spelled incorrectly in the title of proceedings. It is the Anishinabek, not Anishinabeck, Police Service.

[2] The motion materials filed by Mr. Newton contain two different birth years for Eva. Some of the documents prepared by the APS show the birth year as 1924. However, other documents that I find to be more reliable, such as the letters to which I will make reference from Sherry Howard, show a birth year of 1927.

[3] I believe that this is a different land claim than the Robinson-Huron Treaty dispute currently before another judge of this court.