I blogged about McKenzie v. Morgan, 2023 ONSC 1457, yesterday. McKenzie is an insightful case on substitute decision makers. The full background in this case can be found in my previous blog.
In a nutshell, the case is about Raymond an 85 year old man who is the subject of a proceeding under the Substitute Decisions Act, 1992. However, this proceeding is not a guardianship application because Raymond already had power of attorney of documents in place. Raymond’s power of attorney for property and for personal care named two of his five children, Dawn and Lynne, as his attorneys. In March, 2021, Dawn commenced an application because the sisters had competing plans for Raymond’s property and care. By February, 2022, the sisters reached a settlement which included, inter alia, Lynne’s resignation. This settlement was approved by the Court on Raymond’s behalf. The Public Guardian and Trustee (the “PGT”) was served but took no position. A few months later, Dawn listed one of Raymond’s properties for sale. After meeting resistance on the listing, Dawn commences a new application in June, 2022 because she believed that it was necessary to sell the property notwithstanding the fact that the property was the subject of a specific testamentary gift in Raymond’s Will.
While the sale of the property was denied, being the discrete issue that was raised in Dawn’s second application, Justice Fraser’s reasons raised various global concerns about Raymond. Raymond was found to be isolated from the rest of the family while he is in a conflict of interest with his substitute decision maker because of the terms of the February, 2022 settlement order. The February, 2022 settlement order, inter alia, gave Dawn $5,500 per month as Raymond’s caregiver while Dawn and her husband lives rent-free in Raymond’s Bracebridge home, and $110,000 in legal costs from Raymond’s assets. Altogether, Raymond does not have the liquidity to pay Dawn, hence the need to sell Raymond’s other property. It was not lost on Justice Fraser that the terms benefiting Dawn were negotiated by Dawn herself, and that Raymond did not participate in either application.
While counsel for the PGT was brought in by Justice Fraser to participate in the second application, the PGT advised that the second application was a private dispute and that Raymond’s interests were represented by Dawn, as his attorney for property, which meant that “there is no role for the PGT at this time”. The PGT also further clarified that section 3 counsel (as a lawyer for Raymond) was also unnecessary because “the purpose of section 3 counsel is to represent alleged [sic.] incapable persons in proceedings under the Substitute Decisions Act, 1992” and this proceeding does not relate to who should be making decisions for Raymond (see para 49 for a full excerpt of the PGT’s letter).
Notwithstanding the PGT’s position, Justice Fraser makes a concluding comment in her reasons about the appointment of a litigation guardian for Raymond should matters related to Raymond return before the Court. In Justice Fraser’s words, “it may be necessary for Mr. Morgan to be represented by a litigation guardian as in this proceeding, he requires a representative with undivided loyalty” (para 143).
Thanks for reading!