Case Review: Public Guardian and Trustee v. Snelgrove et al., 2024 Onsc 6892
In the recently released Public Guardian and Trustee v. Snelgrove et al., 2024 ONSC 6892 the Honourable Madam Justice Doyle of the Ontario Superior Court of Justice (the “Court”), ordered a fiduciary to repay the Public Guardian and Trustee (“PGT”) $247,284.22 on behalf of a vulnerable woman.
Background
Loreen Snelgrove (“Loreen”) is a 76-year-old widowed woman who lives in long-term care.[1] Her son Jason Snelgrove (“Jason”) had been her attorney for property pursuant to a Power of Attorney for Property.[2]
In or around January 2023, the PGT Guardianship Investigation Unit (“GIU”) was contacted by Loreen’s bank who reported that she was being financially abused by Jason. The GIU investigated and had reasonable grounds to believe that Loreen was incapable of managing her property and that she was at risk of harm.[3]
The PGT brought an Application pursuant to sections 22, 27 and 42 of the Substitute Decisions Act, 1992, SO 1992, c 30. On August 12, 2024, the Court declared Loreen to be incapable of managing her property and appointed the PGT as her guardian of property. The matter was adjourned to allow Jason to provide an accounting.[4]
When the matter returned before the Court on November 28, 2024, Jason had filed an unsworn statement indicating that he was not aware that he had to maintain a record of his spending and receipts. The court allowed him to affirm his statement so that it became evidence at the hearing. Jason was not able to provide a full accounting of the monies spent from his mother’s account. No other evidence was filed.[5]
Jason could not explain or account for the vast majority of withdrawals made.[6] The PGT took the position that between January 1, 2019, and March 12, 2024 Jason had misappropriated $256,073.50 of Loreen’s funds. Accordingly, they sought an order that he reimburse this amount to the PGT on Loreen’s behalf. [7]
Issues
Justice Doyle considered the following issues:
i. When was Loreen mentally incapable of managing her property, and did Jason owe her a fiduciary duty?
ii. Did Jason breach a fiduciary obligation to Loreen, and how much was owed to her?
i. Loreen had been capable as of January 1, 2019, and Jason owed her a fiduciary duty
Notably, the Court was not prepared to determine that Loreen was incapable of managing her property as of January 1, 2019. There was no capacity assessment as of that date.[8] As Justice Doyle articulated, the court will not speculate as whether she was legally unable to manage her financial affairs. The court cannot just make such a finding on the basis that she had dementia which is a broad diagnosis and has many levels and degrees of symptoms.[9]
In determining that Jason owed Loreen a fiduciary duty, Justice Doyle considered and applied Wedemire v. Wedemire, 2017 ONSC 6891:
[51] . . . In Frame v. Smith, Wilson J. articulated three general characteristics of relationships in which fiduciary obligations are imposed:
-
- The fiduciary has scope for the exercise of some discretion or power.
- The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests.
- The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.
[52] In Elder, McLachlin C.J. narrowed these characteristics to articulate a test which may be summarized as follows. First, the evidence must show that the alleged fiduciary gave an undertaking of responsibility, express or implied, to act in accordance with the duty of loyalty imposed on him or her. As Newbould J. put it in Buccilli, at para. 181:
The undertaking may be found in the relationship between the parties, in an imposition of responsibility by statute, or under an express agreement to act as trustee of the beneficiary’s interests.
[53] Second, the duty must be owed to a defined person or class of persons who must be vulnerable to the fiduciary in the sense that the fiduciary has a discretionary power over them. Parent-child is one of those historically recognized relationships.
[54] Finally, the alleged fiduciary’s relationship must affect the legal or substantial practical interests of the beneficiary. As Newbould J. noted at para. 183, a property interest is the most obvious example.[10]
Justice Doyle determined that a fiduciary relationship existed between Jason and Loreen dating back to May 2017 when he took over as her attorney for property; he owed her a fiduciary duty.[11]
ii. Jason breached his fiduciary obligation to Loreen, and $247,284.22 was owed to her
In his fiduciary capacity, Jason had to exercise his duties diligently, with honesty and integrity, and in good faith. He failed to do so.[12]
Jason was obliged to exercise reasonable care as would a reasonably prudent person managing her own affairs and not to act contrary to the donor’s interests. The SDA stipulates that the fiduciary must set aside his own interests and act only in the donor’s interests.[13]
He did not, and accordingly was found to have breached his fiduciary obligations.[14]
Based on the evidence before it, the Court permitted certain payments to be deducted from the original amount claimed by the PGT in its Application.[15] The remainder of the expenses however remained uncorroborated, unconfirmed and undocumented.[16]
As Loreen’s attorney for property, Jason had been duty-bound to keep records of his spending and to ensure that Loreen’s property was being used for her benefit.[17] Justice Doyle found that Jason had failed to account for $247,284. 22 of Loreen’s funds. He had failed to maintain receipts or proper records, thereby resulting in his inability to account for these expenditures or demonstrate that these expenses benefited her.[18]
Accordingly, Jason was ordered to repay these funds to the PGT on Loreen’s behalf, and costs in the amount of $5,000 were ordered in favour of the PGT.[19]
—
[1] Public Guardian and Trustee v. Snelgrove et al., 2024 ONSC 6892, at para. 2.
[2] Ibid., at para. 3.
[3] Ibid., at para. 8.
[4] Ibid., at para. 5.
[5] Ibid., at para. 6.
[6] Ibid., at paras. 27-28.
[7] Ibid., at para. 1.
[8] Ibid., at paras. 40-41.
[9] Ibid, at para. 46.
[10] Ibid., at para. 48; See also Wedemire v. Wedemire, 2017 ONSC 6891, at paras. 51-54.
[11] Ibid, at paras. 39, 47, 49-52.
[12] Ibid, at para. 53.
[13] Ibid, at paras. 54-56. See also the Substitute Decisions Act, 1992, SO 1992, c 30, ss. 32(1), 32(6) and 38(1).
[14] Ibid., at para. 58.
[15] Ibid., at paras. 29-32, 79-86.
[16] Ibid., at para. 87.
[17] Ibid., at para. 88.
[18] Ibid., at para. 94.
[19] Ibid., at paras. 96-97.
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Written by: Joanna Weiss
Posted on: December 30, 2024
Categories: Commentary, Guardianship, Public Guardian, WEL Newsletter
Case Review: Public Guardian and Trustee v. Snelgrove et al., 2024 Onsc 6892
In the recently released Public Guardian and Trustee v. Snelgrove et al., 2024 ONSC 6892 the Honourable Madam Justice Doyle of the Ontario Superior Court of Justice (the “Court”), ordered a fiduciary to repay the Public Guardian and Trustee (“PGT”) $247,284.22 on behalf of a vulnerable woman.
Background
Loreen Snelgrove (“Loreen”) is a 76-year-old widowed woman who lives in long-term care.[1] Her son Jason Snelgrove (“Jason”) had been her attorney for property pursuant to a Power of Attorney for Property.[2]
In or around January 2023, the PGT Guardianship Investigation Unit (“GIU”) was contacted by Loreen’s bank who reported that she was being financially abused by Jason. The GIU investigated and had reasonable grounds to believe that Loreen was incapable of managing her property and that she was at risk of harm.[3]
The PGT brought an Application pursuant to sections 22, 27 and 42 of the Substitute Decisions Act, 1992, SO 1992, c 30. On August 12, 2024, the Court declared Loreen to be incapable of managing her property and appointed the PGT as her guardian of property. The matter was adjourned to allow Jason to provide an accounting.[4]
When the matter returned before the Court on November 28, 2024, Jason had filed an unsworn statement indicating that he was not aware that he had to maintain a record of his spending and receipts. The court allowed him to affirm his statement so that it became evidence at the hearing. Jason was not able to provide a full accounting of the monies spent from his mother’s account. No other evidence was filed.[5]
Jason could not explain or account for the vast majority of withdrawals made.[6] The PGT took the position that between January 1, 2019, and March 12, 2024 Jason had misappropriated $256,073.50 of Loreen’s funds. Accordingly, they sought an order that he reimburse this amount to the PGT on Loreen’s behalf. [7]
Issues
Justice Doyle considered the following issues:
i. When was Loreen mentally incapable of managing her property, and did Jason owe her a fiduciary duty?
ii. Did Jason breach a fiduciary obligation to Loreen, and how much was owed to her?
i. Loreen had been capable as of January 1, 2019, and Jason owed her a fiduciary duty
Notably, the Court was not prepared to determine that Loreen was incapable of managing her property as of January 1, 2019. There was no capacity assessment as of that date.[8] As Justice Doyle articulated, the court will not speculate as whether she was legally unable to manage her financial affairs. The court cannot just make such a finding on the basis that she had dementia which is a broad diagnosis and has many levels and degrees of symptoms.[9]
In determining that Jason owed Loreen a fiduciary duty, Justice Doyle considered and applied Wedemire v. Wedemire, 2017 ONSC 6891:
[51] . . . In Frame v. Smith, Wilson J. articulated three general characteristics of relationships in which fiduciary obligations are imposed:
[52] In Elder, McLachlin C.J. narrowed these characteristics to articulate a test which may be summarized as follows. First, the evidence must show that the alleged fiduciary gave an undertaking of responsibility, express or implied, to act in accordance with the duty of loyalty imposed on him or her. As Newbould J. put it in Buccilli, at para. 181:
The undertaking may be found in the relationship between the parties, in an imposition of responsibility by statute, or under an express agreement to act as trustee of the beneficiary’s interests.
[53] Second, the duty must be owed to a defined person or class of persons who must be vulnerable to the fiduciary in the sense that the fiduciary has a discretionary power over them. Parent-child is one of those historically recognized relationships.
[54] Finally, the alleged fiduciary’s relationship must affect the legal or substantial practical interests of the beneficiary. As Newbould J. noted at para. 183, a property interest is the most obvious example.[10]
Justice Doyle determined that a fiduciary relationship existed between Jason and Loreen dating back to May 2017 when he took over as her attorney for property; he owed her a fiduciary duty.[11]
ii. Jason breached his fiduciary obligation to Loreen, and $247,284.22 was owed to her
In his fiduciary capacity, Jason had to exercise his duties diligently, with honesty and integrity, and in good faith. He failed to do so.[12]
Jason was obliged to exercise reasonable care as would a reasonably prudent person managing her own affairs and not to act contrary to the donor’s interests. The SDA stipulates that the fiduciary must set aside his own interests and act only in the donor’s interests.[13]
He did not, and accordingly was found to have breached his fiduciary obligations.[14]
Based on the evidence before it, the Court permitted certain payments to be deducted from the original amount claimed by the PGT in its Application.[15] The remainder of the expenses however remained uncorroborated, unconfirmed and undocumented.[16]
As Loreen’s attorney for property, Jason had been duty-bound to keep records of his spending and to ensure that Loreen’s property was being used for her benefit.[17] Justice Doyle found that Jason had failed to account for $247,284. 22 of Loreen’s funds. He had failed to maintain receipts or proper records, thereby resulting in his inability to account for these expenditures or demonstrate that these expenses benefited her.[18]
Accordingly, Jason was ordered to repay these funds to the PGT on Loreen’s behalf, and costs in the amount of $5,000 were ordered in favour of the PGT.[19]
—
[1] Public Guardian and Trustee v. Snelgrove et al., 2024 ONSC 6892, at para. 2.
[2] Ibid., at para. 3.
[3] Ibid., at para. 8.
[4] Ibid., at para. 5.
[5] Ibid., at para. 6.
[6] Ibid., at paras. 27-28.
[7] Ibid., at para. 1.
[8] Ibid., at paras. 40-41.
[9] Ibid, at para. 46.
[10] Ibid., at para. 48; See also Wedemire v. Wedemire, 2017 ONSC 6891, at paras. 51-54.
[11] Ibid, at paras. 39, 47, 49-52.
[12] Ibid, at para. 53.
[13] Ibid, at paras. 54-56. See also the Substitute Decisions Act, 1992, SO 1992, c 30, ss. 32(1), 32(6) and 38(1).
[14] Ibid., at para. 58.
[15] Ibid., at paras. 29-32, 79-86.
[16] Ibid., at para. 87.
[17] Ibid., at para. 88.
[18] Ibid., at para. 94.
[19] Ibid., at paras. 96-97.
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