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Determining the Appropriate Location to Commence Power of Attorney Litigation

Litigating a dispute over the validity of power attorney documents may involve family members who live in multiple cities in Ontario. Parties may disagree on where the application should be brought. Or, an application may be commenced in one jurisdiction, but a party wants the application to be moved. What steps do they have to take and what will the court consider in making this decision?

The recent decision of Comeau v DeCoff 2019 ONSC 874 (CanLII), http://canlii.ca/t/hxc67 looks at this particular issue of venue. The plaintiff (the daughter of the defendant) commenced an application in Oshawa seeking a declaration that her father be declared incapable of managing his affairs and sought to set aside any power of attorney documents granted by her father after the one he signed appointing her as his attorney.

The father’s most recent POA documents appointed one of his sons, Wayne, as his attorney. The daughter and another son, Bruce, became concerned about what they termed, “suspicious banking transactions” on their father’s account. The father was assessed on November 24, 2018 and was found to be incapable of managing his personal care and his property. However, he was assessed again on December 21, 2018 by a different capacity assessor and was found to be “capable” of both.

The father brought his own application in Windsor for an order upholding the latest POA and sought a declaration that he “is capable of managing his own affairs”.[1]

The daughter lived in Lindsay, but her lawyer practiced in Oshawa. The father lived much of his life in Whitby but moved to Windsor to reside with his son Wayne. The other son, Bruce, lived sixty minutes north of Oshawa.

The father brought a motion to move the daughter’s application from Oshawa to Windsor where he resided. The Court turned to Rule 13.1.02(b) of the Rules of Civil Procedure (Motion to Transfer to Another County) which states:

. . .the court may, on any party’s motion, make an order to transfer the proceeding to a county other than the one where it was commenced, if the court is satisfied,

(a) that it is likely that a fair hearing cannot be held in the county where the proceeding was commenced; or

(b) that a transfer is desirable in the interest of justice, having regard to,

(i) where a substantial part of the events or omissions that gave rise to the claim occurred,

(ii) where a substantial part of the damages were sustained,

(iii) where the subject-matter of the proceeding is or was located,

(iv) any local community’s interest in the subject-matter of the proceeding,

(v) the convenience of the parties, the witnesses and the court,

(vi) whether there are counterclaims, crossclaims, or third subsequent party claims,

(vii) any advantages or disadvantages of a particular place with respect to securing the just, most expeditious and least expensive determination of the proceeding on its merits,

(viii) whether judges and court facilities are available at the other county, and

(ix) any other relevant matter.  O. Reg. 14/04, s. 10.

Justice Thomas noted that: “While the factors under Rule 13.1.02(b) are not easily adaptable to this proceeding, I find that the factors listed in Rule 13.1.02(2)(b)(i)-(iii) could be seen to refer to the location where [the father] resides and where the capacity assessments were undertaken thereby favouring a transfer to Windsor.”[2]

Justice Thomas also took into consideration where the capacity assessors resided: “Factor (v) must take into account that the [first] assessor. . . resides in London, much closer to Windsor than Oshawa. The [second] assessor. . . resides in Windsor.”

Ultimately, it appears that Justice Thomas placed the most weight on the father’s age and his needs:

Most importantly to me [the father] is 81 years of age. He is prescribed multiple medications to assist him with his ailments. He has sworn an affidavit in this motion which speaks of the hardship that would be visited on him if he had to travel to Oshawa to attend court there.

The Court could determine this litigation in Oshawa or Windsor. I believe it relevant as well that this Application is in an early stage of litigation and that there is an Application seeking similar relief issued in Windsor. It would seem appropriate and cost effective to have the two applications proceed together.[3]

While an applicant should be able to name the place of a trial, sometimes there may be another more appropriate jurisdiction depending on the facts of the particular case.

This is indeed an issue that comes up frequently on client matters and the outcome is difficult to predict.

[1] Comeau v DeCoff 2019 ONSC 874 at para 11.

[2] Comeau v DeCoff 2019 ONSC 874 at para 13.

[3] Comeau v DeCoff 2019 ONSC 874 at paras 15-16.


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